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Subject Area: Political Theory

H.L.A. Hart vs. Natural Law - Leonard P. Liggio, Literature of Liberty, Summer 1982, vol. 5, No. 2 [1982]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


H.L.A. Hart vs. Natural Law

S.B. Drury

  • University of Calgary

“H.L.A. Hart's Minimum Content Theory of Natural Law.” Political Theory 9 (November 1981): 533–546.

The author wishes to clarify the “much maligned tradition of natural law in legal theory.” He contends that H.L.A. Hart has distorted important aspects of the controversy between natural law and legal positivism. Hart's “minimum content” theory does not constitute a compromise between natural law and legal positivism since Hart misinterprets the meaning of natural law.

The legal positivists' tradition holds that “legal norms can have any kind of content and be valid.” By contrast, the natural law tradition maintains: (1) the conviction that there exists a universal justice that transcends the particular expressions of justice in any given set of positive laws; (2) that the universal principles of justice are accessible to reason and are discovered, not made, by man; (3) that a positive law contrary to these universal principles is not properly speaking a law, since it lacks the moral content necessary to put us under obligation. To be valid law must have a moral content and not simply be a command with sanctions.

Hart's theory fails to be assimilated to this natural law tradition. (1) Hart's criterion of “survival” fails to qualify as the proper end or telos of man, because it does not refer to an optimum condition of fulfilment. (2) Because survival is morally neutral, no moral conclusions can be derived from the fact that men tend to desire to continue in existence. Hart's “content” of law (based on survival as an aim) is instrumental rather than moral. (3) Hart's minimum content theory attempts to define “viable” rather than “valid” law, and so remains thoroughly positivist. It does not approach the moral content criterion of natural law.

To be valid a law must be deserving of respect. A valid law is one which morally ought to be obeyed; the coercion such a law uses against those who disobey it would then be justified. Otherwise, the coercive power of law would hardly be distinguishable from the violence of criminals.