Hart on the role of justice in the concept of law: some further remarks

Abstract

ABSTRACT A correct understanding of Hart’s idea of justice and a detailed assessment of the connection between justice and law contributes to a better understanding of his legal-philosophical project. Always consistent with his argument on the separability between law and morality, Hart endorses an account of formal intralegal justice that is intimately connected to law, but not necessarily dependent upon non-legal principles of substantive justice. Hart’s theoretical commitment to a composite concept of formal justice encompasses two elements: first, the imperative to treat like cases alike and different cases differently, and second, the underlying legal criteria that specify the relevant measure of likeness and difference. These elements of Hart’s theory of justice can be traced back to their doctrinal precedents in the texts of Aristotle, Sidgwick, Perelman, Ross, and Del Vecchio. Commentators and critics of Hart’s account of justice seem to agree that this account ought to be expanded by exploring its full effects on the foundations of Hart’s concept of law. When this is achieved, a third element of Hart’s intralegal justice emerges, namely, its rights-allocating function, which is deeply embedded in his account of the rule of recognition, his concept of a legal system, and his idea of law.