At the Irish Jurisprudence Society (IJS) Symposium, the fourth paper is being delivered by my colleague (and recently-elected Fellow) Dr Oran Doyle (TCD) on True Morality and the No Necessary Connection Thesis.
HLA Hart, in his seminal article “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593 (1958), famously asserted that there was no necessary connection between law and morality (the No Necessary Connection Thesis: NNC). Discussion of this point has been marred by much confusion, which can be traced to the ambiguous fashion in which Hart referred to “morality” in this article. At its most basic, the word carries two meanings which are best understood by contrasting “moral” with its two antonyms, “immoral” and “amoral”. “Immoral” means something that is contrary to true morality; on the other hand, “amoral” means something that has nothing to do with morality. Conversely, therefore, the word “moral” has two meanings: it can refer to true morality and it can also connote any other assertion about morality. Doyle’s view is that a clearer view on the merits of NNC can be obtained if we limit it to apply simply to true morality and not to asserted morality. Hence, in his view, no legal positivist should be concerned to defend and no natural lawyer should be concerned to rebut NNC if it relates to any assertion about morality. Moreover, on a close reading of Hart, Doyle argues that that NNC as conceived by Hart is concerned to deny necessary connections between law and true morality, not between law and asserted morality:
… although Hart’s various formulations of (NNC) may just about be ambiguous as between true morality and asserted morality, in every context in which he assesses challenges to NNC, his focus is unremittingly on true morality, not asserted morality.
Doyle then looks to the various critiques of NNC, especially Leslie Green and John Gardner. He says that Green, in “Positivism and the Inseparability of Law and Morals” 83 NYU L Rev 1035 (2008), conflates the distinction between true and asserted morality and ascribes this inaccurate conflation to Hart. Gardner, in “Legal Positivism: 5½ Myths” 46 American Journal of Jurisprudence 199 (2001) restates NNC as asserting
In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources).
Doyle acknowledges that this is probably a better representation of the position held by Hart in his article than is way Hart himself stated NNC, but he points out that Gardner’s reference to “merits” nevertheless ensures that the focus is true morality, as well as other meritorious standards, which is consistent with Hart’s general approach.
He concluded by conceding that, for the purposes of the paper, he assumes that there is a “true morality” but makes no argument as to what its content might be, and he further assumes that it is useful to the concept of true morality in an analytical scheme without necessarily specifying its content.
Against this background, the problems with the analysis of Hart are twofold. First, an ambiguity in our vocabulary about morality has led to a mistaken interpretation and appraisal Hart’s thesis. Second, this ambiguity exacerbated by the tendency for legal positivists committed to NNC to assert that it does not matter – for present purposes – what true morality it is. It is an approach which, Doyle argues, considerably blurs the distinction between true morality and asserted morality and perhaps explains how easy it is in this context to slide between different meanings of the word “morality” without realising it. Nevertheless, Doyle asserted that there are such different meanings, and that it is better to understand NNC as a thesis about true morality.