Hart avec Kant: On the Inseparability of Law and Morality

Abstract

On the 50th anniversary of the Hart-Fuller debate, this essay examines Hart's defense of the thesis that law is not necessarily connected with morality. This paper argues that such a conclusion follows from Hart's presentation of the internal point of view as an empirically knowable claim of causation of the human will. The paper argues that the internal point of view contradicts the very idea of human freedom. If the internal point of view is analyzed as Immanuel Kant would analyze it - as a problematic claim that coheres with the possibility that human beings are free - Hart's internal point of view contradicts all of the other ideas for which Hart is known - the separation thesis (law is not the same as morality), the rule of recognition, and the distinction between core and penumbra meaning of legal rules. Although none of Hart's ideas is tenable from a Kantian perspective, nevertheless Hart's jurisprudence still serves two valuable purposes: it emphasizes that positive law and subjectivity are in tension and that legality (i.e., Hart's external point of view) is an aspiration of positivist jurisprudence. That is to say, the moral program of Hart's jurisprudence is to make the external point of view possible by means of the internal point of view. So conceived Hart's jurisprudence becomes a moral, not a descriptive, claim.