Natural law between superstition and enthusiasm: the “minimum content of natural law” in H.L.A. Hart and the influence of David Hume’s moral scepticism

Abstract

David Hume is not always remembered as an important jus-positivism philosopher. Hume put forward a conventionalist notion of justice as an alternative to the “enthusiasm” of the Protestant natural law theorists. For them, law would be legitimate only if it respected individual rights discovered by reason. Therefore, Hume formulated a descriptive theory of justice, which relates to his political theory, his political science and, abstractly, his philosophy. The hypothesis of this paper is how H.L.A. Hart adhered to these presuppositions when formulating his conception of the “minimal content of Natural Law”, implicitly, which left ambiguous the meaning of important passages of his The Concept of Law. The aim of the paper is to expose these assumptions. Some interpretations in Hart’s statements on truisms is an admission of the connection between law and morality. However, once the influence of Hume evidenced, we can understand how truisms of Natural Law are not prescriptions, but generalizations or empirical maxims drawn from a kind of Natural History of the human species. After presenting central aspects of Hume’s philosophy, similarities and connections with Hart’s theory will be exposed. The confirmation of the hypothesis has important consequences for understanding what Hart understood as “Natural Law”. Although the minimal content does not imply the total abandonment of the separation thesis, the illumination of the Humean assumptions shows the fragility of a descriptivist and amoral Theory of Law, as Hume and Hart intended.