Oxford Journal of Legal Studies, Vol. 24, No. 2 (2004), pp.

287–302

H.L.A. Hart’s Understanding of Classical

Natural Law Theory
CRISTÓBAL ORREGO*

Abstract—The article examines H.L.A. Hart’s most important texts on classical

natural law theory in order to assess his understanding of that theory. The author
considers Wrst the way of presenting the two meanings of the theory of natural law
(namely, moral objectivity and the union of law and morals). Afterwards, he ana-
lyzes Hart’s thought on the Wrst thesis, especially on the teleology of human nature;
then on the second one, especially on the meaning of the invalidity of unjust laws. In
both cases, the author compares Hart’s understanding with the self understanding of
natural lawyers, referring preferably to Aquinas and Finnis. The conclusion is that
Hart misunderstood classical natural law theory in such a way that it warranted the
suspicion that he did not have a Wrst hand acquaintance with that theory.

1. Introduction: Assessing Hart on Natural Law Theory

The trends in legal philosophy that stress the importance of moral and political
principles for the creation of law and for legal reasoning are central to analytical
jurisprudence in the last 40 years. The names of H.L.A. Hart and Ronald Dworkin
were at the centre of the debate until very recently. Subsequently, Joseph Raz,
John Finnis, Neil MacCormick, Jules Coleman, Jeremy Waldron, John Gardner
and many others, have explored the same issue and have got closer to the classical
tradition than other analytical philosophers did before Hart. It may be said that
the issue itself in some way connects present jurisprudence with the classical
thought on natural law. For ‘Hart set jurisprudence Wrmly on the road back—or
rather, forward—to the point where it will rejoin the classical tradition’.1 This article
explores Hart’s most relevant texts on natural law as they might be compared with
the classical tradition (notably Aquinas).2 My aim is to assess only Hart’s under-
standing of the classical tradition, leaving aside the discussion of his arguments
against that tradition, for the former sets the framework and the background for

* Professor of Legal and Political Philosophy, University of the Andes (Chile). Project Fondecyt No. 1010711
(Chile).
1
Finnis, ‘Natural Law: The Classical Tradition’ in J. Coleman and S. Shapiro (eds), The Oxford Handbook of
Jurisprudence and Philosophy of Law (2002) 1 at 26.
2
The interpretation of H.L.A. Hart’s The Concept of Law as itself a form of natural law theory is to be found in
Daniel Skubik, At the Intersection of Legality and Morality. Hartian Law as Natural Law (1990) at 187. Skubik modi-
Wes Hartian legal theory by eliminating from it the doctrines that do not cohere with Hart’s tendency towards clas-
sical natural law theory (those pointed to by Finnis). My work, on the contrary, intends to show Hart’s
misunderstanding of classical theory.
Oxford Journal of Legal Studies, Vol. 24, No. 2,  Oxford University Press 2004; all rights reserved
288 Oxford Journal of Legal Studies VOL. 24

the latter. Moreover, the main conclusions of this article are strong enough to
deserve a separate consideration, for if they can be sustained, the arguments
against the classical tradition of natural law simply miss the point.
Hart’s exposition of a core of good sense in natural law theory (the ‘minimum
content of natural law’)3 and his thinking on natural rights4 are not relevant for
the assessment of his understanding of classical natural law theory, so I shall
leave aside these two topics as well.
Besides, as far as I know, most studies on natural law and legal positivism
compare Hart’s thinking to the present images of natural law theory, images that
have been created mostly by Hart himself, so it is easy to see him in a favourable
light. By contrast, I explore a systematic exposition and evaluation of Hart’s
knowledge and thought about the classical tradition of natural law theory. My
comments follow John Finnis’ remarks closely. I do not claim to interpret
Finnis’ theory of natural law, but classical theory. I do contend, however, that
Finnis agrees with classical theory, at least for the purpose of disentangling
Hart’s confusions on the matter. I hope that by adding this study to those by
Finnis and George5 (inter alia) I am rendering a service to all law students and
even scholars who have seen the soundest jurisprudential theory not only criti-
cized (which is legitimate) but also ridiculed and rejected as plain nonsense
(which is nonsense).
H.L.A. Hart presented himself as a supporter of legal positivism and attached
to this label—being a ‘legal positivist’—the greatest importance, notwithstanding
his attempt to single out the fragment of truth in natural law thinking. Many philo-
sophers of law follow today the path taken by Hart and other critics of classical
natural law theory.6 Legal positivists sometimes seem to believe that appealing to
natural law is a facile and authoritarian resource, and that the claim by some
natural lawyers that their tradition has been misunderstood or misrepresented is
an equally convenient way out for them. In this somewhat strange academic

3
The thesis of a minimum content of natural law is explained in H.L.A. Hart ‘Positivism and the Separation of
Law and Morals’ (1958) 71 HLR 593, now in his Essays in Jurisprudence and Philosophy (1983) 49; in H.L.A. Hart,
The Concept of Law (1961) 189, and also in Hart, ‘Problems of the Philosophy of Law’ in P. Edwards (editor in
chief), The Encyclopedia of Philosophy (1967) vol 6 at 264, now in his Essays in Jurisprudence and Philosophy, 88–119.
His expositions diVer to the extent that in the last publication cited he does not refer to the aim of survival as ‘the’
human end used to ground teleologically the ‘minimum content of natural law’.
4
See H.L.A. Hart ‘Are there any Natural Rights?’ (1955) 64 PR 175. See the critique by E. Mack ‘Hart on
Natural and Contractual Rights’ (1976) 29 PS 283–85. Hart eventually rejected the main argument of this paper,
in H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983) 17, so that he did not include it in that important
collection of essays.
5
See the articles in Robert P. George (ed.), Natural Law Theory. Contemporary Essays (1992); Robert P. George
(ed.), Natural Law, Liberalism, and Morality. Contemporary Essays (1996); Robert P. George (ed.), The Autonomy of
Law. Essays on Legal Positivism (1996), and Robert P. George, In Defense of Natural Law (1999).
6
What Jules Coleman and Brian Leiter say about legal positivism as opposed to natural law theory shows that
Hart’s framing of the issue is still alive. As a matter of fact, Coleman and Leiter repeat that natural law theory
requires that positive law be morally right in order to be valid law from the strictly legal (intrasystematic) point of
view and they also assert that legal norms have authority only if they just enact what already is required by morality
(natural law). See Coleman and Leiter, ‘Legal Positivism’ in D. Patterson (ed.), A Companion to Philosophy of Law
and Legal Philosophy (1996) 241 at 243–44. This will be shown to be a ridiculous misunderstanding of classical
natural law theory. But I prefer to deal with the issue, which is in the last analysis a hard criticism against a serious lack
of philosophical scholarship, considering the old texts of the master rather than the elaborations by the disciples.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 289
context (though not hostile, as it was by the mid 20th century)7, I shall contend
that classical thought has indeed been thus misunderstood. John Finnis has
shown these misunderstandings in Kelsen, Hart and Raz, in a brief masterly way
and has not yet been refuted.8 I expect to show in more detail how one of the
greatest legal thinkers of the 20th century is involved in such misunderstandings.
Nonetheless he continues to be followed by many who seem unable to acknow-
ledge his fundamental error.
In this study we shall see how Hart characterizes natural law theory, assuming,
as he does,9 that he either refers to the classical tradition or at least includes it in
his interpretation.

2. The Two Meanings of the Theory of Natural Law

Hart Wnds a confusion of meanings in the expression ‘theory of natural law’, as
used by such authors as Aristotle, Aquinas, Grotius and Blackstone.10 His
defence of legal positivism seeks compatibility with many defenders of a ‘con-
nection’ between law and morals, yet, since legal positivism must be understood
as the negation of some form of natural law theory, Hart is compelled to Wnd
and oppose the ‘orthodox thesis’ of ‘classical theories of Natural Law’,11 espe-
cially the ‘most extreme’ version associated with ‘the Thomist tradition of Natural
Law’.12 I shall therefore focus on this aspect of his work on the classical theory
of natural law rather than on all the theories and arguments in defence of a cer-
tain union of law and morals, where Hart’s objections refer only to a form of
expression. Hart’s choice of Aquinas seems appropriate, for no one would doubt
that Aquinas clearly represents a natural law position: ‘Thomas Aquinas . . . on
any view . . . occupies a uniquely strategic place in the history of natural law
theorizing’.13
Hart characterizes in diVerent ways the theory of natural law. In general, he
deals with it in opposition to legal positivism, but does not refer, in this context,
to theories of subjective natural rights (the rights of a subject/person), as I have
said above.14 His thinking separates completely the theory of law from the theory
7
See how diVerent the situation was between the 1940s and the 1970s, in John Finnis, Natural Law and Natural
Rights (1980) vi.
8
See Finnis, above n 7 at 23 and 351.
9
Cf. H.L.A. Hart, The Concept of Law, above n 3 at 187 and 253, where he refers explicitly to the most important
defender of the classical theory, Thomas Aquinas.
10
Cf. ibid at 181 V.
11
Ibid at 182.
12
Ibid at 152.
13
Finnis, above n 7 at vi.
14
H.L.A. Hart ‘Are there any Natural Rights?’ (1955) 64 PR, does not address the issue between legal positivism
and natural law theory. It seems as if both theories could either aYrm or deny the existence of natural rights. As
a matter of fact, there have been both natural lawyers (eg Michel Villey) and legal positivists (eg Hans Kelsen)
opposed to the very idea of ‘natural rights’ in the ‘subjective’ sense. There is an ongoing debate among natural
lawyers over whether Plato, Aristotle and Aquinas had or lacked the concept of subjective rights. Finnis thinks they
had. Villey contended they did not have any such a concept. In any case, natural law theory can accommodate the
concept (old or new) of natural rights grounded upon the natural law (particularly on its principles of justice).
Cf. John Finnis, Aquinas. Moral, Political, and Legal Theory (1998) 132 and 180, and Finnis, above nl at 24.
290 Oxford Journal of Legal Studies VOL. 24

of rights. This limitation, however, is also appropriate, for the classical theory of
natural law also discussed laws and rights quite separately, establishing neverthe-
less a clear relation between them: laws are the grounding reasons or rational
foundations of rights (lex est ratio iuris). For this reason, this article will not
directly consider Hart’s thinking on natural rights.
Hart formulates the thesis of natural law theory as follows:
[T]he Thomist tradition of Natural Law . . . comprises a twofold contention: Wrst that
there are certain principles of true morality or justice, discoverable by human reason
without the aid of revelation even though they have a divine origin; secondly that man-
made laws which conXict with these principles are not valid law. ‘Lex iniusta non est lex’.15

This is why he goes on to examine separately the two sides of the theory: the
belief in the principles of morality (natural law) and the thesis of the necessary
connection between law and morality (the thesis of coherence). We shall follow
in his footsteps.

3. The Existence of Principles of True Morality

According to Hart, the Wrst aspect of natural law theory contends that ‘there are
certain principles of human conduct, awaiting discovery by human reason’.16
This way of presenting the classical theory is Xawed because of a question of
terminology, subtle perhaps but of broad conceptual scope. Hart avoids using
the classical terminology: ‘natural law’. This conceals an essential characteristic
of the classical theory, and without an understanding of this characteristic it is
impossible to understand, even to a minimal degree, what Hart considers the
second aspect of the theory, i.e. the requirement that human law be subordi-
nated to natural law. The essential point is that the classics gave the name ‘law’
to a command of reason that is morally binding (as a matter of conscience): this is
the main meaning of ‘law’ when referred to any standard or guide of human
action, although the same word may be used to refer to other standards (the law
of the jungle, the laws of a robber band, etc.). So, to represent the classical theory
coherently requires formulating both aspects in equivalent language, rather than
articulating the Wrst in such a way as to exclude from the outset the notion of
natural ‘law’. If, however, one wishes to formulate the Wrst aspect excluding the
word ‘law’, which as a matter of linguistic convention is perfectly acceptable,
then the formulation of the second aspect should follow suit. In this case, the
second aspect of natural law theory should be expressed by saying that human law
which is contrary to morals is simply not morally binding. But then, of course, Hart
would be agreeing with classical natural law theory, for Hart does not think that
positive laws contrary to justice should be obeyed as a matter of conscience.17

15
Hart, above n 9 at 152.
16
Ibid at 182. For a similar formulation see ibid at 152.
17
Cf. ibid at 205–07.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 291
Setting aside the problem of presentation and words,18 let us examine Hart’s
analysis of the Wrst aspect of the theory.19
According to Hart, since Plato, the classical theory of natural law has upheld
‘the proposition that the ways in which men ought to behave are discoverable by
human reason’20 and ‘the assertion that fundamental moral distinctions are
“objective truths” discoverable by human reason’.21 According to him, the
claim that there are true principles of right conduct, rationally discoverable, has not
usually been advanced as a separate doctrine but was originally presented, and for long
defended, as part of a general conception of nature, inanimate and living.22

Following this conception of nature, ‘every nameable kind of existing thing,

human, animate, and inanimate, is conceived not only as tending to maintain
itself in existence but as proceeding towards a deWnite optimum state which is
the speciWc good or the end (telos, Wnis) appropriate for it’.23 Such is the ‘teleo-
logical conception of nature’,24 which lives on today only in respect of biological
nature and of artefacts made by men for speciWc purposes.
The theory of natural law is here observed from the modern standpoint. Hart
adopts this starting point without argument, and the classical thesis is to be
understood and assessed by comparison with it. Such procedure runs counter to
one of the major methodological theses of Hart himself, which he applies else-
where, namely, that to understand an activity one must start from the internal
point of view of those who perform it. If applied to the comprehension of ideas,
this principle would favour placing oneself in the context of the authors who
defended the classical theory of natural law, and expounding and understanding
their thinking from their own internal point of view. Hart chose to follow, step
by step, the comparison between ‘modern thinking’, the assumptions of which
are accepted outright, and ‘classical theory’, whose internal point of view is
unknown. Though we believe that it is very diYcult to comprehend an idea from
such a starting point, because we seek to comprehend Hart from his own point
of view we follow him in this unhistorical comparison.

18
Sometimes one thinks that this is the real centre of the dispute between Hartian (and post-Hartian) legal positiv-
ism and classical natural law theory. I say this from the point of view of an external observer of the dispute in the
Anglo-American academic world.
19
Hart discusses this theory not from the standpoint of writers on natural law (he never directly expounds them),
but from a ‘modern’ standpoint, striving to Wnd a core of good sense in such ‘ancient’ theories. If we are to under-
stand Hart, we must follow him in this explanation from his own point of view.
20
Hart, above n 9 at 182. This theory, which might be called ‘ethical cognitivism’, is part of classical and
Scholastic theories of natural law. Hart has held that (i) it is compatible with legal positivism, at least with the
Anglo-Saxon form and with the form that he himself defends; and (ii) that many jurists concerned with underlining
the interdependence between law and morals ‘are not committed to this view of the nature of morality’ (ibid at
233). Hart himself is unclear as to his own position on this issue, though he says he acknowledges a minimum of
‘objective’ natural law and, in addition, defends as ‘true’ certain theses of ‘critical morality’. It follows from here
that, for Hart, ethical cognitivism and non-cognitivism are compatible with both legal positivism and the natural-
law thesis and certain anti-positivist versions independent of the classical theory of natural law.
21
Hart, above n 9 at 233.
22
Ibid at 182.
23
Ibid at 184.
24
Ibid at 185.
292 Oxford Journal of Legal Studies VOL. 24

The ancient teleological view agrees with the modern view as regards the
description of natural regularities. But there is a contrast:
The diVerence is that in the teleological view, the events regularly befalling things are
not thought of merely as occurring regularly, and the questions whether they do occur
regularly and whether they should occur or whether it is good that they occur are not
regarded as separate questions. On the contrary (except for some rare monstrosities
ascribed to ‘chance’), what generally occurs can both be explained and evaluated as
good or what ought to occur, by exhibiting it as a step towards the proper end or goal
of the thing concerned. The laws of a thing’s development therefore should show both
how it should and how it does regularly behave or change.25

The formulation may seem adequate to one familiar with classical doctrine while
appearing totally incomprehensible to one ignorant of it. Its ambiguities should
therefore be pointed out. To begin with, the apparently ‘normative-only’ notions
used (‘should’, ‘good’) might be understood in classical theory not only as nor-
mative but also as ontological. Classical theory uses an analogical notion of
‘good’, that is, that everything that is, insofar as it is, is ‘good’. This means that
‘being’ is perfection of the entity. Then what occurs, insofar as it occurs in
accordance with physical laws, may be said also to be what ‘should’ occur. Thus
we say that a stone thrown in the air ‘should’ fall. The ambiguity of Hart’s formul-
ation is that it can suggest (and so he seems at times to understand it) that in
classical thinking there is confusion between what is factual and what is norm-
ative in the sense of normative that pertains to free (self-determining) beings. On
the contrary, classical theory draws a clear distinction between ontological good,
pertaining to all that is, and moral good, pertaining to free action. Similarly, it
does not confuse the use of such expressions as ‘should’ or ‘law’ in a normative
sense, with their use, by analogy, in a descriptive sense.
It is not true that classical theory does not regard things that ‘occur regularly’
and those that ‘should occur’ as separate questions. Precisely the notion of nature,
and that of end, enables classical theory to distinguish between events (regular or
otherwise) that are ‘good’ (ontologically) or ‘natural’ for the being concerned,
from those that are not. Needless to say, it is good for a lion to devour a zebra (and
‘bad’ for the zebra). It is also true that lions regularly devour zebras and not vice
versa. This empirical knowledge is what enables one to determine the nature of
lions and zebras, and to know that zebras are ‘natural’ components in a lion’s diet.
This has nothing to do with a confusion between events that occur regularly and
events that should occur or it is good that occur, because ‘good’ is relative to the
nature of each thing (when lions devour zebras, both ‘good’ and ‘bad’ occur regu-
larly). Under no circumstances may it be said that there is here a normative ques-
tion of what ‘ought’ to occur or is ‘good’ in the realm of free action.
Therefore, the ‘laws of the development of a thing’ are descriptive laws and refer
to what occurs regularly in nature. This furnishes knowledge of the nature of

25
Ibid.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 293
things or their stable way of being, for the simple reason that in classical theory
‘nature’ means ‘essence’ (what the thing is) considered as a principle of oper-
ation. Accordingly, to know the ‘nature’ of a thing is to know how it ‘operates’
and, in a descriptive sense, how the thing ‘should’ operate. To this way of being
and nature corresponds always a ‘good’, the ‘ontological good’ of every singular
being; but there is neither ‘moral good’ nor normative meaning in these descrip-
tions, just as there is none when we say that the sun ‘should’ rise tomorrow.
Hart is surprised at his own formulation of classical theory:
This mode of thinking about nature seems strange when stated abstractly. It may
appear less fantastic if we recall some of the ways in which even now we refer at least to
living things, for a teleological view is still reXected in common ways of describing their
development.26

A ‘strange’ and ‘fantastic’ mode of thinking indeed, when examined from the
modern perspective and disregarding the classical metaphysical explanations and
formulations. This, however, from the scientiWc point of view, does not warrant
criticizing, or even commenting on, a metaphysical theory; such criticism,
indeed, becomes radically impossible: one cannot criticize metaphysics unless
one engages in metaphysical argument. Conversely, what might be called ‘mod-
ernist prejudice’ leads to acceptance of what in a misunderstood classical theory
appears acceptable to modern language, and to reject everything else for no better
reason than that it is contrary to the ‘modern’ way of thinking.
The teleological mode of thinking subsists, according to Hart, in regard to
living beings:
Thus in the case of an acorn, growth into an oak is something which is not only regul-
arly achieved by acorns, but is distinguished unlike its decay (which is also regular) as
an optimum state of maturity in the light of which the intermediate stages are both
explained and judged as good or bad, and the ‘functions’ of the various parts and struc-
tural changes identiWed. The normal growth of leaves is required if it is to obtain the
moisture necessary for ‘full’ or ‘proper’ development, and it is the ‘function’ of leaves
to supply this. Hence we think and speak of this growth as what ‘ought naturally to
occur’.27

Decay, which ‘is also regular’, shows that ‘regularity’ does not suYce to determine
what is ‘good’ or ‘natural’, both in the ontological and in the moral realms.
Knowledge of the ‘nature’ of a thing requires something more than the description
of its regularities. It requires determining how various regularities and various
parts of the whole relate to one another. In brief, it requires knowing the living
whole as such, as the unity of manifold elements, uniWed in their development
across time. And it is knowledge of the ‘end’ or ‘nature’ of a thing that enables
us to speak of the ‘full’ or ‘proper’ development of that thing. Again, to speak of

26
Ibid.
27
Ibid.
294 Oxford Journal of Legal Studies VOL. 24

what ‘ought naturally to occur’ entails no normative (in the sense of appealing to
a being’s self-determination and choice) use of the term ‘ought’, but merely indi-
cates what a particular mode of being requires to reach perfection. This teleolog-
ical view, which Hart accepts for living beings, he rejects for inanimate beings:
In the case of the action or movements of inanimate things, such ways of talking seem
much less plausible unless they are artefacts designed by human beings for a purpose.
The notion that a stone on falling to the ground is realizing some appropriate ‘end’ or
returning to its ‘proper place’, like a horse galloping home to a stable, is now somewhat
comic.28

Let us highlight two items from this passage. In the Wrst place, Hart is right in
saying that the teleological view is particularly plausible in the case of living
beings or artefacts designed for a purpose. However, this does not prevent meta-
physical notions of ‘nature’ or ‘end’ from applying to inanimate things by analogy.
Classical theory contends that inanimate things do not move themselves as living
beings do, but are moved from outside. They nonetheless have a ‘mode of
being’, which empirical or scientiWc ‘laws’ can describe. Hence we may speak of
movements (changes of any kind) appropriate for some inanimate things and
inappropriate for others. A stone ‘ought’ to fall; some gases ‘ought’ to rise; wood
upon contact with Wre ‘ought’ to burn, and water, to evaporate. Certain chemical
reactions or physical changes are as natural (‘ontologically good’) as the growth
of an acorn into an oak. In this analogical sense, all things have a ‘nature’, even if
lacking immanent operations.
Second, Hart acknowledges that the teleological language makes sense in
respect not only of living beings but also of ‘artefacts designed by human
beings for a purpose’. Such is the case of law, also according to Hart, who
regards it as a mere human artefact. In natural law theory, ‘positive law’ (which
Hart calls simply ‘law’: we accept this as a matter of linguistic convention) is
regarded as a human creation, created (posited) for speciWc purposes. Teleo-
logical language would distinguish between an optimum state of maturity and
the stages of decay, however regular, in human laws. Hart refuses to make any
distinction when decay consists in the immorality of law, but he does so when
legal systems are in a state of decay as regards their eVectiveness or maturity or
complexity.29
Having described the teleological view in general and partly accepted its applic-
ation to living beings, Hart refers to its application to the human person. Again,
Hart simultaneously presents ‘classical theory’ from, and in contrast with, the
‘modern’ standpoint, while Wnally accepting in part the teleological view.
Indeed, one of the diYculties in understanding a teleological view of nature is that just
as it minimized the diVerences between statements of what regularly happens and
statements of what ought to happen, so too it minimizes the diVerence, so important in
28
Ibid.
29
See ibid at 114–20 and 208 V.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 295
modern thought, between human beings with a purpose of their own which they con-
sciously strive to realize and other living or inanimate things.30

We observed earlier that classical thinking does not minimize the diVerence
between what happens and what ought to happen, but explains what the diVerence
consists in by resorting to the notions of ‘nature’ and ‘end’. In addition, classical
theory is aware of a vast analogical variety of senses in the expressions (and in
the realities expressed by) ‘being’ and ‘good’. Among these many senses there is
one concerning what ‘ought to be’ in the sense of being in accordance with the
nature and the ‘ontological good’ of an entity, a sense of ‘ought’ which is not
normative, for it refers to beings that move from necessity, not freely. The ‘law’
is not the motive of the actions of these kinds of beings, though the word ‘law’
may also be used here in a purely descriptive sense. In the just quoted passage
Hart again misconstrues classical theory. Indeed, classical theory does not mini-
mize the diVerence between rational beings (‘beings with a purpose that they con-
sciously strive to realize’) and non-rational beings. Quite the contrary, the entire
theory of ‘natural law’ as ‘moral law’ is founded on that diVerence. Such diVerence,
which according to Hart is ‘so important in modern thought’, has been overlooked
precisely by modern philosophies that put the human being on the same footing as
other beings, either by degrading human beings and making them the object of the
same experiments and manipulations previously reserved for animals, or by advo-
cating the acknowledgement of ‘rights’ of animals.31 Hart argues as follows:
For in the teleological view of the world, man, like other things, is thought of as tending
towards a speciWc optimum state or end which is set for him and the fact, that he,
unlike other things, may do this consciously, is not conceived as a radical diVerence
between him and the rest of nature.32

Classical theory was in a sense certainly teleological, for every good is an end for
the being whose good it is. But classical philosophy (contrary to what Hart
aYrms, citing no author in support of his interpretation) conceives the diVer-
ence between human beings and the rest of nature as radical, to the point that
only humans can choose to act contrary to their end. The tendencies of irrational
beings are, according to their nature, necessary. The tendencies of humans are not
realized without their will and choice. If freedom of will or choice, which is the
foundation of the possibility of morality, is not a radical diVerence, what can be?
There is more to be said about this passage. The statement that the human
person tends ‘towards a speciWc optimum state’ is also ambiguous. First of all,
classical anthropology is highly complex as regards the ‘tendencies’ of the
human person. It only aYrms as necessary a tendency towards ‘happiness’ or

30
Ibid at 185–6.
31
See, inter alia, Tom Regan and Peter Singer (eds), Animal Rights and Human Obligations (2nd edn, 1989), and
Tom Regan, The Case for Animal Right (1988). Hart rejected the attempts to ground animal rights. He even found
it diYcult to ground human rights. See Hart’s criticism of Peter Singer, Practical Ethics (1979): H.L.A. Hart ‘Death
and Utility’ (1980) 27 TNYRB, 5 at 25–32.
32
Hart, above n 9 at 186.
296 Oxford Journal of Legal Studies VOL. 24

fulWlment considered generally; other than that, the person is thought of as tending
towards nothing speciWc in a necessary manner, and even as tending in many
ways towards moral evil (‘inclination to sin’). Anything that in some way partici-
pates in the reason of good may attract the tendency, the inclination(s), of the
free acting person. Hence the classical theory of natural moral law accounts for
both the inclination to good and the inclination to evil (every evil action pursues
some good in an irregular way, a way which is contrary to the full good of the
acting person) and does not think of the human person as tending necessarily
towards his full speciWc good. This (complex) good must be discovered and
striven for, sometimes with great eVort. Hart attempts to clarify the reference to
an ‘optimum speciWc state’ as follows:
This speciWc human end or good is in part, like that of other living things, a condition of
biological maturity and developed physical powers; but it also includes, as its distinctively
human element, a development and excellence of mind and character manifested in
thought and conduct. Unlike other things, man is able by reasoning and reXection to dis-
cover what the attainment of this excellence of mind and character involves and to desire
it. Yet even so, on this teleological view, this optimum state is not man’s good or end
because he desires it; rather he desires it because it is already his natural end.33

Human good certainly includes perfections of ‘mind’ and ‘character’ that classical
theory calls ‘virtues’. However, we must not confuse the plenitude that consists
in virtues with the ultimate end that attracts the inclination of the will. As I said
above, the human person is necessarily inclined to happiness or fulWlment in a
general way, though not to virtue (rather, the reverse is true in many ways).
Though the inclination to happiness is necessary, according to classical theory it
was controversial which was the authentic supreme good that would provide
such happiness. Both Aristotle and Aquinas rejected the view that it was virtue,
although the practice of virtues is normally needed to attain happiness.
Besides, the opposition (at the end of the quoted text) between what is desired
because it is an end in itself and what is an end because it is desired is a fallacy.
Classical theory aYrms than the human person desires whatever he or she
desires by reason of (under the description of) its being ‘good’, and that what is
good for the person is objectively so; however, the concrete goods are not pursued
as ends unless they are Wrst desired because they are understood as desirable.
Again both things are true: that one has an ultimate end irrespective of one’s
desires, and that nobody pursues it ‘as an end’ unless one Wrst understands it as
desirable and desires it. However, there are many non-ultimate ends, which only
become ends for the acting persons after they choose them as either means to, or
fundamental parts of, their ultimate end of happiness (for example, saving lives is
a permanent end of the works of a physician as such, for she has chosen a speciWc
way of life directed towards that end; but surely this is not the ultimate end of her
life: she has chosen to be a physician as her way to happiness/fulWlment).

33
Ibid.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 297
Hart suggests that the teleological view of the person subsists in our way of
thinking and speaking of human needs that it is good to fulWl, or such notions as
harm, or function of bodily organs, etc.34 So we say, for example, that it is ‘natu-
rally good’ for the human person to eat and rest. Hart shows that such judgments
of human behaviour stated in terms of what ‘ought naturally to be done’ diVer
both from judgments reXecting mere human conventions or prescriptions, the
content of which cannot be discovered by thought or reXection, and from judg-
ments on what is required to achieve a particular objective that one person might
have and another might not.35 Hart contends that such a view is appropriate in
regard to the end of ‘survival’, and from this he draws a ‘minimum content of
natural law’ to which, as I have said earlier, it is not necessary to refer in order to
assess Hart’s understanding of classical natural law theory. Classical theory, Hart
points out, upheld a much more complex and, he says, debatable notion of the
end or the good of the person (cultivation of the intellect, according to Aristotle,
or the knowledge of God, according to Thomas Aquinas).36
Let us recall that Hart attempts to examine the classical thesis that there are
certain objective principles of morality discoverable by reason (‘natural law’),
his conclusion being that such ‘natural’ principles of human conduct should be
spoken of only with reference to survival. His view of the classical exponents of
natural law thinking is as follows:
Natural-law theory, however, in all its protean guises, attempts to push the argument
much further and to assert that human beings are equally devoted to and united in
their conception of aims (the pursuit of knowledge, justice to their fellow men) other
than that of survival.37

This cannot but astonish anyone familiar with classical theory. Classical theory
begins by recognizing that human beings are free and that they are indeed not
united in their conceptions of the good, much less in their moral purposes. This
lack of unity towards the good precisely necessitates the arduous pursuit of
good, both in knowledge and in practice.38 ReXection on natural law would not
be necessary if men were so devoted to, and united in, that conception. What is
odd, then, is not so much Hart’s eVort to formulate a complete theory of the
good of the person, as his determination to admit only that on which all men
agree, namely, that to survive is good (although not all persons would accept
survival as ‘the’ end, as Hart contended in his main works but eventually did not
in his last explanation of the issue39).
34
Cf. ibid at 186–7.
35
Cf. ibid at 186.
36
Cf. ibid at 187.
37
Hart, ‘Positivism and the Separation of Law and Morals’, above n 3 at 80.
38
Cf. Finnis, above n 7 at 29 V.
39
Cf. Hart, ‘Problems of the Philosophy of Law’, above n 3 at 111 V. Hart says that ‘whatever other purposes
laws may serve, they must, to be acceptable to any rational person, enable men to live and organize their lives for
the most eYcient pursuit of their aims’ (ibid at 111); he mentions ‘the fundamental needs of social life’ (ibid) and
‘the realization of human purposes’ (ibid at 110) and so on, but does not longer refer to the aim of ‘survival’ as the
only ground for these ‘objective and rationally determined criteria for the evaluation and criticism of law’ (ibid).
298 Oxford Journal of Legal Studies VOL. 24

In sum, Hart perceives the classical theory of natural law in a confused way.
He is right in emphasizing that it is a teleological view of nature, where what is
‘good’ depends on the ‘mode of being’ of the entities. This is a metaphysical
question, not an epistemological one, for the knowledge of the good cannot be
deduced from mere theoretical knowledge of facts.40 However, Hart fails to
grasp the diVerence between ‘ontological’ and ‘moral’ goodness, believing as a
result that classical theory confuses descriptive judgments with prescriptive judg-
ments (or ‘be’ and ‘ought’) and minimizes the diVerence between the human
person and irrational beings. In reality, classical theory clearly distinguishes
between the sphere of speculative reason and the sphere of practical reason,
without separating them, and sees freedom as an essential requirement distin-
guishing persons from irrational beings and making a moral law required.
Lastly, Hart admits only a few ‘natural’ moral judgments, based on what cons-
titutes human good at biological level. At this point, I would like to emphasize
that Hart is not suYciently familiar with classical theory on the subject of ‘natural
law precepts’ in the context of human goods at higher than biological level. Class-
ical theory defends its conclusions with moral arguments and in a metaphysical
framework of which Hart is not aware, but classical theory does not hold that
human beings necessarily agree with such conclusions. Moreover, there is wide
disagreement among classical theorists on some issues. Hart himself noted a
diVerence between Aristotle and Aquinas regarding the end of the person: ‘culti-
vation of the intellect, according to Aristotle, or the knowledge of God, according to
Thomas Aquinas’.41 Classical theory simply assumes that, as in any other Weld of
knowledge and experience, discrepancy over certain conclusions is no proof of error
or truth in any of them. Each argument must be examined on its merits; precisely
what Hart omits to do on the grounds that there is controversy and complexity.
Another point worth stressing is the reference to the fact that such principles,
though of divine origin, are discoverable by human reason without the aid of revel-
ation. Both statements are true, though Hart’s explanation seems to oppose one
to the other as in a paradox. So it may be Wtting to explain other elements in the
theory that complete the two mentioned above.
In the Wrst place, the divine origin of natural law means that any created good pro-
ceeds from God the Creator, and that among such created goods is the inclination
of rational creatures towards their ultimate end in general (happiness). The order
of creation has its origin in God (Eternal Law) and is known by the human
person through a natural (neither supernatural nor mystical) participation in
divine wisdom, which is no more than the human rational capacity as applied to
human deliberation, choice, and action (‘natural law’). Hence the divine origin
of natural law precedes any revelation. Similarly, the possibility of knowing good
and evil in deliberation, choice, and action precedes any revelation; it is a natural

40
See Finnis, above n 7 at 33 V.
41
Cf. Hart, above n 9 at 187.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 299
ability of human beings. The very knowledge of the existence of God, according
to Aquinas, is accessible to human reason without the aid of revelation.
Second, according to Thomist theory the ability of human reason is clouded,
though not entirely disabled, by sin. For this reason, revelation is morally neces-
sary for natural moral law to be known to all, with ease and untainted by error,
although it might be known with no aid of revelation by a wise and virtuous person
(Aristotle’s spoudaios). This conWrms that Hart’s construction is erroneous, for it
attributes to Thomist theory a kind of naïve belief that all men are devoted to,
and united in, their knowledge and pursuit of moral good. If that were the case,
revelation on moral issues would, as I have said, be utterly redundant.

4. The Thesis of Coherence or ‘Union of Law and Morals’

According to Hart, the second meaning of the theory of natural law is what
might be termed the thesis of the coherence of law and morals, which Hart usu-
ally calls the ‘conceptual union of law and morals’. Hart thinks that ‘the Thomist
tradition of Natural Law’ aYrms that ‘man-made laws which conXict with these
principles [principles of true morality or justice] are not valid law. “Lex iniusta
non est lex” ’.42 Unjust rules are not law ‘in any sense’.43
This construction, though apparently closely following the classical formul-
ation, in fact transforms it to the point of distortion. For classical theory admits a
wide variety of meanings for the various terms it uses. The same notion of law
serves to designate both ‘eternal law’ (signifying the very mind and essence of
God) and the ‘law of fomes’ (meaning sinful concupiscence), which is the direct
negation of eternal law.44 Concepts, however, have a central case (analogatum
principale) in respect of a given context or from some point of view. Thus, for
example, in the case of the concept of law, the analogatum principale from the
point of view of our knowledge of law is the human law of the political commu-
nity. Then, by analogy, the concept of law is applied to the eternal law of God, not
directly knowable (it is the divine essence unattainable by natural reason), and to
natural law (the analogy is thus: as the law of the realm stands to its subjects, so the
principles of human reason stand to free human actions). On the contrary, from
the point of view that considers law as an order of reason ‘binding’ on the law’s
subjects (directing them to some end) the central case is eternal law, which gov-
erns all things created with absolute perfection. By participation, natural law is a
moral law for human persons, while positive law is a law morally binding, as a
matter of conscience, when it conforms to natural law (objective morality). From
this standpoint, all positive human law is ‘law’ indeed at least in one sense: in that it
is an order of behaviour issued by an authority to its subjects. But, if it contra-
dicts moral law, human law is no longer ‘law’ in only one sense: it is not morally

42
Ibid at 152.
43
Ibid at 205.
44
Cf. Aquinas, Summa Theologiae, I-II, q. 91, a. 6.
300 Oxford Journal of Legal Studies VOL. 24

binding, it does not become a part (created by human authority) of the moral
order. This is one outcome of thinking that ‘principles of morals or justice’ are
truly ‘laws’ and applicable to social life. Human law that is contrary to natural
law is not ‘law’ from the point of view of natural law, though it may be valid law
from the standpoint of the same positive law, which is a truism useless to distin-
guish the law from any command issued by a band of thieves.45 Thomas Aquinas
himself holds that the Latin word ‘ius’ refers primarily to the object of justice
(that what is due to (an)other: his or her right), but also to the norm or rule or
rational directive (the law: lex) that constitutes the reason for the right.46
Second, Hart uses the notion of ‘validity’ to formulate the natural law thesis.
However, the concept of validity only means that a rule exists as part of a system of
rules, because it fulWls the requirements of the rule of recognition. Validity is the
mode of existence of the rules of law. Validity does not mean (in Hart’s view) that
rules have moral ‘value’ nor that they are ‘legitimate’ or ‘mandatory’ morally
speaking, nor that what they command ‘must be obeyed’ all things considered. If
such is the meaning of validity (a purely technical, legal, intrasystemic, meaning),
then the classical theory of natural law has not faced the problem that Hart exam-
ines. Thomas Aquinas does not discuss in detail the requirements of formal valid-
ity of human laws, other than to specify in a general way that they must be enacted
by a competent authority. From his thinking, however, it is nonetheless clear that
the problem of the opposition between human law and natural law assumes that
human law is valid in an intrasystemic, legal or formal sense. Human law has to
exist before it can be just or unjust, and before the problem of obedience arises.
Thomas Aquinas assumes that a human law is valid in the Hartian sense and then
asks what would happen in the moral order if that human law were contrary to jus-
tice. The answer is that it would have no value as a moral law: it ought not to be
obeyed or enforced, unless other moral reasons so require per accidens.47
A metaphysical consideration may help to understand how absurd it would
be, in classical theory, to think of a human law that is not ‘law’ in any sense. The
classical formula ‘unjust LAWS are not law’48 assumes that we are speaking of
something that is in some sense law. Classical metaphysics, we may recall,
asserts that ‘evil’ (whether physical, non moral, or moral) does not exist per se,
but only as a deprivation of due good in an entity that per se (insofar as being an
entity) is good (ontologically). Thus, nothing can be evil according to its entire
being. A person, however perverse, retains his or her ontological goodness. A rotten
apple retains its being, though degraded. A declining society, while extant, retains

45
The locus classicus of this comparison (somewhat received in Kelsen, Ross and other contemporary legal theo-
rists) is Saint Augustine, City of God, Book IV. H.L.A. Hart, above n 9 at 152, mistakenly cites: ‘St. Augustine,
Confessions, iv.’ This has not been corrected in the second edition: H.L.A. Hart, The Concept of Law (2nd edn,
1994) at 156. (I prefer to use the classical edition, with its widely cited pagination, reserving the second edition only
to cite the ‘Postscript’).
46
Cf. Aquinas, Summa Theologiae, II-II, q. 57, a. 1. Aquinas states that the word ‘ius’ refers also to judicial deci-
sions, even unjust ones, showing in this way the Xexibility of classical language and analogy.
47
See Finnis, above n 7 at 351 V.
48
Ibid at 364.
SUMMER 2004 H.L.A. Hart’s: Classical Natural Law Theory 301
some good, even though harbouring tremendous iniquities. Similarly, the thesis
that an unjust law is not a law, but rather a ‘corruption of law’, shows that we
have before us a form that partly retains the characteristics of a ‘good’ law, hence
may be termed ‘law’, but has lost the good that was its due and thus is not pro-
perly a law, it is not law in the full sense of the term, which has a moral connot-
ation. Otherwise it would not sound well to state that someone is a law-abiding
citizen, meaning a good citizen.
The thesis of coherence in the form propounded by Hart has no place in class-
ical theory. Classical theory contains two elements lost in modern political philo-
sophy, which help to understand the true scope of a thesis of coherence. One is
the idea that ‘the end’ is one of the elements that explain the various realities,
meaning that a reality that fails to fulWl its end is not complete, lacks the due full-
ness of being and therefore ‘is less’ or ‘is bad’. But let us not forget that in this
context ‘good’ and ‘bad’ have an ontological meaning, an analogical use that
does not confuse the descriptive with the normative realm. Nevertheless, in
human beings there is a strong relation (not confusion) between normative and
ontological, since human beings realize their ultimate end (happiness/fulWlment)
by freely chosen actions, which are morally good or evil (and so due or undue)
depending on whether they lead to human fulWlment or not.
The other element worth recalling is the notion that society has justice as its
governing rule, thus the particular laws that govern us in society direct us
towards what is just for all, i.e. the common good. Hence at the core of the class-
ical concept of ‘law’ lies the idea of what is ‘just’. The law establishes what is due
in social life, what is just from the point of view of the lawgiver. There is a relation-
ship among the various meanings of what is ‘due’, and there is no separation
between what is ‘truly’ due (what is due without restriction, all things consid-
ered, thus ‘morally’) and what human laws state as due. In the light of this guiding
idea, when human law enacts as ‘due’ something that breaches what is ‘truly’
due, the conclusion is that human law fails in its undertaking to establish what is
‘due’: it ought not to be obeyed, or at least it should be obeyed only for reasons
diVerent from the law itself. Legal positivism arose, originally, to counter the
notion that what the political authorities ordered might be disobeyed for ‘moral’
reasons.49 This was a strongly political thesis, for in the West those ‘moral rea-
sons’ could be authoritatively declared by ecclesiastical authority. Legal positivism
was bound to the idea that social peace required the existence of clearly enacted
rules that ought to be obeyed by all (and enforced by judges and other oYcials)
irrespective of calls upon controversial moral (or religious) criteria. In such a view

49
This general stance is in Hobbes’ and Bentham’s political philosophy, but also in continental legal positivists
like Karl Bergbohm. Hart comments the idea that legal positivism enjoins to obey the law ‘however unjust or ini-
quitous’ thus: ‘The German legal theorist K. M. Bergbohm, perhaps the best-known legal positivist in continental
Europe in the nineteenth century, held this view; but though he in fact also subscribed to other forms of legal
positivism . . ., this view is quite independent of them’: H.L.A. Hart, ‘Legal Positivism’ in P. Edwards (editor in
chief), The Encyclopedia of Philosophy (1967) vol 4, 418 at 420. For a recent diluted version of this ‘ethical legal
positivism’ (not endorsing a categorical obligation to obey the law), see Jeremy Waldron, ‘Normative (or Ethical)
Positivism’ in Jules Coleman (ed.), Hart’s Postscript (2001) 411 at 411–13.
302 Oxford Journal of Legal Studies VOL. 24

of law, to say, as Hart says, ‘This is law but too iniquitous to obey or apply’50 is
tantamount to returning to the primacy of debatable and uncertain rules over
enacted rules that are certain according to some external criterion of recognition
(or a complex set of diVerent criteria: Hart’s rules of recognition). This Hartian
stance against classical positivism would in eVect give political priority to the
rules issued by ecclesiastical authority in those countries where religious leaders
Wx the meaning of uncertain rules of morality.

5. Conclusion
H.L.A. Hart misunderstood the classical theory of natural law in its main notions
and thesis. This misunderstanding is a result of a lack of direct study of the clas-
sics, for all his knowledge is received from secondary sources: ‘I owe to conversa-
tions with Mr. G.A. Paul anything of value in the political philosophy of this book
and in its reinterpretation of natural law.’51 Such a profound distortion of classical
theory resulted in a new deWnition of legal positivism, the supposedly logical
negation of natural law theory, to the point where most legal positivists assert
now the classical theses of natural lawyers: (i) unjust laws must not be obeyed, not
even by public oYcials; (ii) there must be always a moral scrutiny of positive laws
before granting them obedience in conscience; (iii) the political and legal (institu-
tional) system comprises both source-based rules and moral rules available to
guide human conduct. As the ancients used to say: some standards of what is due
in the city are legal (positive) and others moral (natural, i.e. rational), both com-
prised in but one (positive) legal order of reasons directing human actions.52

50
Hart, above n 9 at 205.
51
Ibid vi. Emphasis added. Hart’s commentators have not noticed these words, to my knowledge. However,
Hart is candid and to the point, here as elsewhere, in spite of stating the facts in a preface under the appearance of
a thankful acknowledgment. The only publication of G.A. Paul that I have found is Paul, ‘Is there a problem
about sense-data?’ in A. Flew (ed.), Logic and Language (First Series, 1963) at 101 (taken from Proceedings of the
Aristotelian Society, Suppl. vol 15, 61 V.). According to Joseph Raz and John Finnis (in a personal interview around
1993–94), G.A. Paul published only one or two essays. He died after a boating mishap in the English Lake District
at the beginning of the 1960s. The best clues to his inXuence over Hart are perhaps the titles of his lectures. Some
of them are: ‘Political Philosophy: Locke, Hume, Rousseau’ (1957–58) 88 Oxford University Gazette 823; ‘Political
Philosophy: more about Locke’ (1958–59) 89 Oxford University Gazette 825; ‘Locke on Property (Second Treatise)
Defended’ (1959–60) 90 Oxford University Gazette 398; ‘An Historical Introduction to Political Philosophy’
(1961–62) 92 Oxford University Gazette 422. There is nothing related to classical theory. Hart says, referring to
Paul: ‘I have to thank him for reading the proofs’ (H.L.A. Hart, above n 9 at vi). This reXects, in my view, the level
of friendship and collaboration between them, but also that the inXuence of Paul did not come from his writings,
but from conversations and perhaps from conversations about the book. I have thought it necessary to dwell on
these details because I am asserting something strong about Hart: his ignorance of the classical natural law theory he
was criticizing. Hart himself explicitly acknowledges that his reinterpretation of natural law comes from G.A. Paul.
52
Cf. Aristotle, Nicomachean Ethics, Book V, 7, 1134b18-24. See Finnis, above n 7 at 294.