Hart avec Kant: on the Inseparability of Law and Morality
Washington University Jurisprudence Review
Part I discusses what morality is, according to Kant, for whom the notion is strictly procedural. Kant seeks to isolate the form of morality from its substantive content. Part II explains the role of the internal point of view in Hart's system. It shows that, properly construed, the internal point of view plays precisely the role that autonomy plays in Kantian moral theory. Part III shows that there can be no rule of recognition. Rather, legal recognition is the official's spontaneous act. Any reduction of the internal point of view to social rules renders it into a positive, content laden legality—the dead opposite of what it truly is—morality as such. The rule of recognition must therefore remain formal and unrecognized, if Hart's jurisprudence is to function along Kantian lines. Part IV shows that the Hartian core, where law resides, is simply a reiteration of the internal point of view. The internal point of view, in its unproblematic state, stands for determinate meaning, and the superfluity of interpretation and human unfreedom. But, since the internal point of view is a problematic position, there is no core, as Hart defines it. Part V anticipates a positivist objection to the above argument. The anticipated argument holds that, in positivism, human beings are the origin of law (the "sources thesis"). In morality, reason—innate to human nature—is the origin of law. The person who submits to positive law therefore has an external master. But the person who submits to the moral law has an internal master–a superego.
David Gray Carlson,
Hart avec Kant: on the Inseparability of Law and Morality,
1 Wash. U. Jur. Rev. 21
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol1/iss1/2