The relevance of morality in the modern legal positivism with reference to HLA’s theory. Morality is often a controversial debate. For instance, in Malaysia the overwhelming increasing number of Covid-19 infections had caused a major strain on our healthcare services.
Indeed, this directly led to shortages of hospital bed and breathing aid devices. To a crucial point, is it correct for the hospitals to abandon the elderly and salvage the youngster just because they have a higher recovery rate? When most of society supported the claim and even the elderly gave up on their own life, is there still immorality? Such question is for us to ponder and frequently arises in the relevance of morality in the modern legal positivism or in other words the law.
We shall first understand the surface idea of a positivism. A “posit” is a legal social phenomenon of human creation with their thoughts and behaviour. And the basic understanding of Hart’s theory is that there is no necessary connection between law and morality because morality is vague and often devoted to one’s religion or divine ideas. Despite that, Hart’s Paternalistic view of morality will be explained in the later part of this assignment regarding some current contemporary rulings and cases in which it can be seen that he is somehow a soft or inclusive positivist.
Notwithstanding that, there is also an issue by saying law and morality are separated because it cannot be denied that morality principles embedded in the law such as killing and stealing.
This article is part of our law review journal series.
Name of author of this article: Sea Jia Wei
Institution Name: Multimedia University (MMU), Malaysia
Hart’s Rule of Recognition
According to Hart, there must be two rules which are primary rule and secondary rule because he considers that these rules would solve the problems of the community’s social
difficulties which does not have a proper legal system. Besides, Hart thinks that the law is evil as it enforces the people to obey the settled rules without leaving choices. Thus, he introduced
the rule of recognition which is one of the secondary rules to determine the validity of law.
It provides the final standard to determine whether a specific rule can be considered as a valid law. Hart is called as a legal positivist, a soft or inclusive one because moral content may be
included in the rule of recognition, based on the jurisdiction or the legal system. Hart said that the conclusive form of legal validity includes explicitly the justice principles or substantive
moral values. Hart explains the roles of the rule of recognition in the societies by saying that it identifies the rule as referred to an authoritative text or list or some common characteristic
owned by the primary rules. This common characteristic may be the fact of their enactment by a certain body of legislative or their proclamation as a rule of law by the court. And if there
are various general characteristics, the rule of recognition will solve any potential dispute by their arrangement in order of supremacy. Then, Hart gave some real-world examples for what the rule of recognition might look like.
One of that is that such rule would be “whatever the Queen in Parliament enacts is law” in the United Kingdom.2 Hart’s Minimum Content of Natural Law Hart is unique legal positivist where he believes some scope of natural law as part of proposed minimum content of natural law. This is inspired by David Hume’s human condition. We need law to overcome limitation of human existence and it is the theoretical basis of law. There are 5 points in Hart’s idea of minimum content including human vulnerability that all of us are susceptible to physical harms. We need to derive protection from law including criminal and tort law to prevent others injuring us. S.302 of Penal Code provides death punishment served on those who commit murder. S.323 of Penal Code provides whoever causing hurt voluntarily liable for imprisonment or fine or both.
HLA Hart’s theory of law
Under tort law, battery which is intentional causing harm to others constitute an offence. This can be seen in Scott v Shepherd 3 where throwing squib causing injury to others constitute trespass to person. By taking This is actually interrelated to second characteristic which is approximate equality. We are approximately equal and we would like to have law to make sure we are being treated equally from each other. Therefore, we have Federal Constitution (FC) to safeguard fundamental rights in Malaysia. A.5 to A.13 of FC provides fundamental right include prohibition of slavery, right to liberty, freedom of movement and others.
There might be people who are stronger than others and thus, law comes in to protect weaker society from unlawfully abuse of power by stronger. Legal system is to overcome such situation and meanwhile, those who in stronger position should accept the limitation of law even it is hard to persuade them to do so. The third characteristic is limited altruism where we are generally selfish. We concern ourselves and we generally don’t share at large. Thus, there is law encourage us to corporate with each other. For example, tort law’s duty of care. This is clearly reflected under neighbour principle as represented by the case of Donoghue v Stevenson where we are bound to take reasonable measure to prevent action or omissions that injure anyone who is closely affected by our acts.
Next, the fourth characteristic is limited resources where all of us require shelter, food and clothes to survive but they are limited. Resources in world is limited but our want is unlimited. This is the reason why we have property law to cherish and protect each other’s property. Property law important in ensuring that social chaos is not being triggered when people competing for limited resources. S 340(1) of National Land Code 2020 confer 2 Norman P. Ho. ‘Internationalizing and Historicizing Hart’s Theory of Law’. (2018). Pg. 196.
Hart’s view on law and morality
Last characteristic is limited understanding and strength of will where people sometimes don’t keep promise and understand everything we read. Furthermore, we have no ability to know future. Contract law come in and fill in gaps when unforeseen future happen substantially affect performance of contract. This is supported by S 57(2) of Contracts Act 1950 provides frustration of contract in case contract become impossible to perform in future time. Moreover, Consumer Protection Act 1999 comes in as we cannot predict everything in future due to production by manufacturer. This can protect inability of consumer to understand everything before making purchase.
Hart made himself clear that he is not proposing law derive from moral and even made empirical view of natural law to prove it. However, it would be controversial in sense that natural element is in fact connoting natural morality. Minimum content of law is an order for survival and survival is natural moral aims. Hart suggest “minimum content” rather than “moral minimum essential for social life” despite his idea is inspired by David Hume’s idea of the latter. Both of these are somehow homogeneous. There is still relevancy of morality under minimum content of law proposed by Hart.7
Most countries follow positive tradition but still find moral aspect to ensure minimum guarantee of natural law in positive law. In Thailand, Parliament draft legislation allowing surrogacy provided that surrogates must be intended parents’ blood relatives. 8 There is consideration of moral aspect here as by impose such condition, the chances of intended parents abandoned their child or domestic violence are reduced as people tend not to be cruel for people who is closer to them. Concept of Hart is an acknowledgement that the existence of rule is necessary and is an order for community to survive. Notwithstanding that Hart had critiqued his academic nemesis and Fuller in his writing of “minimum content of natural law”, all laws shall be obeyed regardless of its morality. Fuller’s interpretation on internal morality of law is to prevent absurd law as much as possible.
External morality of law
In fact, Fuller’s idea is wordier because it tell us regardless of the external morality of law, as long as content of morality follow, law should have 8 good characteristics where it is not so much in form of written rule but more general aspect of written law. It should be followed in the modern society acting as a guidebook to all legislators in making law. Hart’s Paternalistic View of Morality and The Invasion of Privacy In the paternalistic views of Hart, law can only interfere public issues only if it does affect the community. In other words, law would not legalize the morality is such private morality does not affect the community.
Thus, an enforcement of morality and ethics through law is 7 All Answers ltd, ‘Harts Minimum Content of Natural Law Philosophy Essay’ (businessteacher.org, January 2021) <https://www.ukessays.com/essays/philosophy/harts-minimum-content-of-natural-lawphilosophyessay.php?vref=1> accessed 25 January 2021. 8 Helier Cheung, ‘Surrogate babies’ (bbc.com, 6 August 2014) <https://www.bbc.com/news/world-28679020> accessed 25 January 2021. 9 Christine Pierce, ‘Hart on Paternalism’ (June 1975) <https://doi.org/10.1093/analys/35.6.205> accessed 4 February 2021. Name: Sea Jia Wei Institution Name: Multimedia University (MMU), Malaysia considered as an invasion against the right of personal freedom or privacy. However, even under the scope of Paternalism, some laws enacted somehow restraint individuality as to protect the welfare of community. For instance, to preserve the actual freedom of human being as emphasized by Hart, article 10(1) of Federal Constitution gives the right of freedom of speech and expression to every citizen.
Downside of paternalism
However, such right is said to have illustrated the downside of paternalism where the politicians may abuse their legislating power to construe the law vaguely for their own political interest as to causing chilling effect to the fundamental liberties. Moreover, the government or politicians may sue anyone who in their opinion, has defamed them. With regards to the implementation of My Sejahtera application, even if certain freedom of movement has been restraint, paternalism is to be adopted here instead of the prevailing morality since it is to trace the movement of the people in order to decrease the circulation of disease. In short, when freedom and public interest being contrary with one another, the later will still prevails as we are living in the society as a whole. Relating it back to Thomas Aquinas’ concept of “State of Nature”, we need to comply with certain social contract to promote harmony in a community.
Therefore, the rights advance the public interest or public morality can be enforced through the process of court because the judge cannot neglect to take morality into consideration. For instance, with regards to the violation of privacy, a good illustration could be seen in the 1990s case of Mr. X vs Hospital Z. In this case, the court first ruled that the disclosure of HIV patients of their disease is a must to be allowed. By thinking in a modern society way, the judgement of the court made on morality at this point is understandable as such disclosure is not a public disclosure but it is disclosed only to relevant parties. Besides, in some developing countries, the persons affected HIV might think that is a matter of shame and might not disclose it. But now we are in advancement of technology where HIV can be cured and such disclosure required by the court is considered as reasonable as it helps to tackle with the disease.
The undisciplined human sexual impulse
Hence, it is not reasonable anymore for the patients to stand for their privacy of their own. Then, the court held that AIDS is the product of undisciplined human sexual impulse. We strongly disagree to the second decision by the court. This is because the reason of such patient getting affected is remained uncertain and there is possibility where he was affected indirectly like genetic inheritance.
This second judgement, nonetheless, reflects the downsides of a moral judgement where court tends to be personal and emotional. The view of Paternalism in protection of individuality opposing to legalization of morality was decided under the case of R. Rajagopal @ RR Gopal & Another v State of Tamil Nadu & Ors22 where the court said that the right to privacy is implied in the right to life and liberty of citizens as they have a right to protect their own privacy.
Under this right, no one can publish anything concerning his own privacy without obtaining his consent. If otherwise, such person would be violating the right to privacy of the person concerned and liable in claims for damages. At this point, we think that this decision is quite reasonable as there must be punishment for one who has violated the privacy of others. This can be explained in doctor-patient relationship.
For this particular situation, we opined that the view of law and morality is connected somehow prevails due to the reason where doctors are to cooperate with the state if it is for the reason of protecting the public interest or morality. The contemporary relevance of Hart’s legal positivism theory and the evidence of its implementation can be widely seen in the Malaysian legal system where certain laws and judgments don’t overlap with the concept of morality.
Hart’s view on international law
However, the concept of legal positivism is not absolute in Malaysia and morality still has its relevance. Malaysia incorporates morality in Federal Constitution, criminal law, and other laws such as family law.12 Malaysia’s infusion of morality concept in law can be predominantly seen in regards to obscenity related offences as well as family-related matters. When it comes to obscenity, Chapter XIV of the Penal Code13 prohibits people from indulging or publicizing obscene related acts. For instance, in the case of PP v Vun Tain Yin & Anor14, the court imposed a fine upon the respondents under s.292(c) of the Penal Code because they filmed a pornographic movie containing obscene acts which were later reproduced into video cassettes for sale and distribution.
The court came up with such a decision since it has negative moral implications. When it comes to family-related matters, adultery is considered to be an immoral act and it is one of the grounds of breakdown of marriage according to s.54(1) of the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976).
Even compensation is provided to the victim who was affected by the adultery of the fiancé under s.58 of the LRA 1976. This can also be seen in the case of Tan Wat Yan v Kong Chiew Meng where the court awarded compensation for adultery. In regards to those offences, it can even be argued in the context of the paternalistic view of Hart that such law is reasonable as it is made to protect the welfare of the society. For instance, to prevent the rise of child pornography crimes or illegitimate children concerns. However, certain laws in Malaysia cannot be justified to fall within the concept of paternalism as it is purely made out of the morality concept.
Concept of morality
For centuries, same-sex marriage was perceived to be against the concept of morality and was subjected to prohibition by laws in numerous countries, but certain countries have already taken the initiative to legalize same-sex marriage which shows that society is moving away from the concept of morality to shape laws as they started developing. This goes with other controversial issues as well such as voluntary euthanasia where Hart himself felt legal punishments imposed upon it are more severe compared to the practice itself.15 However, Malaysia is far from making similar laws
12 Shamrayu A. Aziz, ‘Morality and Ethics v Invasion of Privacy’ (2005) https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/morality-and-ethicsvinvasion-of-privacy-by-shamrahayu-a-aziz accessed 25 January 2021. 13 Penal Code, Chapter XIV 14  CLJ Rep 633 15 John M. Finnis, H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher (Notre Dame Law School, 2009) https://scholarship.law.nd.edu/law_faculty_scholarship accessed 5 February 2021> accessed 27 January 2021. as same-sex marriage and euthanasia are prohibited in Penal Code and religious laws due to morality concerns. Hart’s emphasis on the fact that law is focused upon society and has social sources can be seen through the laws being implemented in Malaysia.
General obligation to obey the law
When Hart emphasized that society has a general obligation to obey the law, he knew that such obedience will be the consequence of society sacrificing their individual’s moral perspective and agree to comply collectively. Such non-obeyance of the obligations is followed by the imposition of sanctions. In fact, in Malaysia, we have recently seen regulations were made, apart from My Sejahtera which was discussed earlier, to curb the ongoing Covid-19 pandemic where excessive fines were imposed upon the violation and this was done even towards those categorized in bottom income groups despite it might go against moral perspective.
Another major influence of Hart’s legal positivism theory can be seen in the form of draconian laws which are still prevalent in Malaysia despite we don’t endorse it. As viewed by Hart, laws made by mankind primarily concerns with what is particularly necessary for the time and place rather than focusing on the moral aspects of it. Mankind is ready to compromise natural law and construe laws based on the consequence of the “human condition” as mentioned by Hart.
Perhaps one may relate it with the existence of laws such as the Sedition Act 1948 in Malaysia. Despite the major criticism towards Sedition Act 1948, especially by international and Malaysian human rights advocates, such law was argued necessary to be retained to prevent people from creating unwanted rebellion or insurrection act that may threaten the peace of the society. Even in the case of PP v Azmi bin Sharom, the court declared Sedition Act 1948 is constitutional.
HLA Hart’s Theory of Positivism
While it is evident that Hart’s legal positivism theory is directly or indirectly being implemented in shaping the legal system of the state such as Malaysia, the question then arises on whether such implementation is reasonable. Speaking from our view, we felt partially it is reasonable as not all times law needs to be made with the necessity for it to comply with morality aspects and by right it should be made by mainly focusing upon the efficiency of it. In fact, morality shouldn’t be a barrier to eradicating certain laws such as laws that prohibit same-sex marriage or euthanasia in Malaysia.
Every theory has its flaws, such as the allowance of Sedition Act 1948 to exist, but Hart’s legal positivism as a whole had provided a better understanding of how laws should be perceived and implemented. Conclusion In a nutshell, although Hart opposed to the necessary connection between law and morality, by critically reviewing on the diverge of law and morality with reference to different Malaysian laws and even cases from common law, we believe that morality is still needed to be followed in the modern society acting as a guidebook to the legislators while making laws. This is to avoid draconian laws as much as possible. Nevertheless, in Hart’s engaging debates with Lon Fuller, he even conceded the importance of morality to the law. Thus, it can be seen that morality indeed exerts a strong influence on many aspects of law and the legal system.
It should also be observed that morality shall be legalized as law as well even in circumstances where morality and privacy were in conflict if by doing so, it upholds the morality which serves for the benefit of the mankind. This is rather a complex situation where factors such as public, private morality, or public interest should be considered before making a judgment or a legal ruling. All in all, there is still relevance of morality in modern legal positivism where there is even moral elements in Hart’s positivism.