Again, this backdrop, we say that law and morals presuppose rationality and harmonious society. It moralizes and makes our leaders, commanders of obedience and legislatures employ reason in making laws, indeed the citizen must still obey the law of his state and should labour to persuade the state to change its law to conform with morality.
THE RULE OF LAW IN HART'S NOTION OF LAW
Apart from the law and morality which Hart advises should not be separated or be treated in isolation, for the sake of peace and community well-being, the idea of the rule of law in Hart's notion also plays a central role in ensuring justice and equity in human society. And every rule of law is of course, concerned with people's actions in some way or the other. In order words to fulfill their purpose the lawgivers set up patterns of behaviour for those whom they want to influence.
But the content of the rule of law, according to Hart, is one built on justice and equity, liberty and dignity. Hart feels it is misleading to classify laws which confer powers on private individuals to make wills, contracts or marriages and laws which give powers to officials e.g. to judge to try a case, to a minister to rules as commands”. At this stage, the lawgiver is above the law and can make and unmake the law. This situation, according to Hart, hinders the progress and development of the society. He also maintain that the administration of law be executed in such a way that it will have to satisfy the requirements of society and it citizenry. The rule of law should not be law that consists of commands of the sovereign for the purpose of influencing obedience of the people.
Hart mentioned rule of recognition as the ultimate rule of a legal system. This rule of recognition is necessary in the sense that it validates those rules of behaviour, which human being must do without. It ensures that social practices, habits and conduct are not mere presuppositions. His rules of recognition provide criteria and recognize a general habit for the society.
The rule of recognition, which Hart is talking about, is not that of command if a sovereign or a political dictator who issues out instructions accompanied by a sanction, which is likely to follow disobedience. According to him, the rules of recognition respect individual rights and privileges and go further to ensure that individual members of the society are treated equally and justly. Besides, Hart's rule of recognition makes law look real and as something that has the capacity of satisfying society's demands. Law must not only be a command backed up by sanction. But also be the hard indeed to maintain that the immense bulk of rules found in the law of a modern state.
In summary, it must be accepted that the question what is law? Is as difficult to answer as the question what is truth? The philosophy of law, which encapsulates what law is, presents a legitimate and useful field of inquiring in man's attempt to better his environment. Both the natural la and positive law have exposed human mind and broadened man's horizon and enlightened man to see that there is more to the reality of law and legal experienced than can be seen through the empirical study of law. Both enable the human mind go beyond particular instance of law towards the totality, the whole and the ideal. In the light of this broader horizon, particular instances of law come to be seen mere clearly in the proper perspective as parts or instances of the whole.
So whether law is seen as law of reason or morality as a positive law, the major ingredients both must have is that they must help in the full realization of justice, equality, good conduct, and social good in any given society. This, in a big way will make human society and human existence peaceful.
CHAPTER FOUR: A CRITIQUE OF HART'S CONCEPTION OF LAW
LEGAL PHILOSOPHERS CRITICISMS:
It is a truism that criticism and skepticism have done more good than harm in man's acquisition of knowledge. They expose the mind to analytic, objective and critical reasoning. Criticism in most cases has shown that no theory is infallible be it philosophy or science. In the field of philosophy of law, legal philosophers have always disagreed on the question, what is law? The contention has always been between the Naturalists' theory of law and the legal positivists' theory of law.
The attempt to separate law from morality has failed to receive the blessing of some legal philosophers of late. The separation of law from morality has been one of the controversial issues raise by legal positivism. Law, they contend, does not have a confirm or make reference to morality in order to be valid. In fact, Hart defines legal positivism as “the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality”. But exponents of Natural law theory disagree with the positivists and argued that natural law precedes positive law and that without morality, law would be meaningless.
