Hart H. L. a., The Concept of Law

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an' concerned, a very surprising piece 01" judicial law-Illakill" concerning the very sources of law may be calmly 'swallowed~ '\'here this is so, it will often in retrospect be said, and may gelluinely appear, that there always was an 'inherent' power in the courts to do what they have done. Yet this 111

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such obvious irrelevancies as height, weight, or beauty it would be both unjust ane! ludicrous. If murderers belongillg to the established church were exempt from capital punishment, if only members of the peerage could sue for libel, if assaults on eoloured persons were punished less severely than those on whites, the laws would in most modern communities be con. demned as unjust on the footing that prima facie human beings should be treated alike and these privileges and immunitie~ rested on no relevant ground. Indeed so deeply embedded ill modern man is the principle t h.u prima facie human beings arc entitled to be treated alike that almost universally where the laws do discri m iuutc by r~ti::rellce to such ma trers as colour a nd race, Iip service a t least is still widely paid to this principle. If such discriminations are attacked they are often defended by the assertion that the class discriminated against lack, or have not yet developed, certain csscn tial human attri bu tcs ; 01- it maybe suid that, rcg re tt ab le though it is, the demands of justice req uiring their cqu al treatment must be overridden in order to preserve something held to be of greater value, which would be jeopardized if such discriminations were not made. Yet tliollgll lip service is IIOW gcncr;Li, it is ccrtaildy possible to (~(Jllccive Or;l i uorulit y which did not resort to these allen disingenuous devices to j ust.ify discrimination and inequalities, but openly rejeeted the principle that prima facie human beings were to be treated alike. Instead, human beings might be thought of as falling naturally and unalterably into certain classes, so that some were naturally filled to he free a IIII others to be t lrci r slaves or, as Aristotle expressed 'it, the liviJlg iust rurucnts of ot hcrs. Here tlu: sense ofj)rimafacie equality among men would be absent. Something of this view is to be found in Aristotle and Plato, though even there, there is more than a hint that any full defence of slavery would involve showing that those enslaved lacked the capacity for independent existence or differed from the free in their capacity to realize some ideal of the good life. It is therefore clear that the criteria of relevant resemblances and differences may often vary with the fundamental 1110ral outlook of a. given person or society. Where this is so, assessments of the justice Or injustice of the law may be met with counter-assertions inspired by a different morality. But some-

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is that the word 'morality' and all other associated or nearly adhere tothe wider sense of 'morality'. Our justification for this synonymous terms like 'ethics', have their own considerable :::::r, is both that this accords witl~ much usage and what the area of vagueness or 'open texture'. There arc certain forms of ;;',:,:::: word in this wide sense designates, performs an important, principle or rule which some would rank as moral and which ','.,