Date of Award
Spring 1996
Document Type
Dissertation - Restricted
Degree Name
Doctor of Philosophy (PhD)
Department
Philosophy
First Advisor
Starr, William
Abstract
In chapter one we consider H.L.A Hart's attempt to "advance legal theory by providing an improved analysis of the distinctive structure of a legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena." Hart criticizes the command theory model of a legal system, the utilitarian advancement of that model and traditional natural law theory. Hart explicitly states that in this critical analysis he does not attempt to "provide a definition of law," or, for that matter, a legal system of his own. Nonetheless, I think it fair to subject Hart's improvements upon these models to his own form of criticism. In so doing, we shall discover that Hart's improvements, especially of the command theory model, cannot withstand his own variety of criticism. His theory must be supplemented if his criticisms of the others are to stand. In chapter two we consider Hart's dismissal of traditional natural law theory which he believes is epitomized by the work of St Thomas Aquinas. He does so, in accordance with the utilitarian view which he tacitly accepts, primarily due to natural law's insistence on the necessary connection between law and morality. On this account, Hart places himself squarely within the legal positivist tradition claiming that no such necessary connection exists, and where such a connection has been asserted much conflict follows. This conflict results from morality's specific inability to serve as the basis for a legal system. According to Hart, and the general utilitarian rejection of natural law theory, morality is relative to particular groups of individuals and therefore lacks the necessary consistency needed for a legal system. Similarly, morality has no legislative body or procedure. It cannot be changed or amended immediately or easily. Most importantly, morality and natural law theory suffer because of the metaphysical presuppositions which serve as their base. Hart, consistent with the positivist tradition, both legal and logical, rejects the notion of metaphysics and relies emphatically on that which has an epistemological verity...