On Treating Like Cases Alike

TLDR: Hart as discussed by the authors argued that there is no necessary connection between law and morals or law as it is and law as the ought to be, and that human or positive laws are invalid if contrary to some higher law.

Abstract: In 1958, H.L.A. Hart published an article in the Harvard Law Review in which he distinguished several theses traditionally advocated by or associated with legal positivists.' Though Hart rejects the bulk of these theses, he devotes the greater part of his article to a defense of one of them, regarding the intersection of law and morality. This thesis-which both Bentham and Austin propounded-is that, in the absence of an express constitutional or legal provision, it does not follow from the fact that a rule violates a standard of morality that it is not a rule of law; conversely, it does not follow from the fact that a rule is morally defensible that it is a rule of law. The particular wording of this thesis indicates that it is directed primarily against traditional natural law theorists, such as Sir William Blackstone and Gustav Radbruch,5 who have said that human or positive laws are invalid if contrary to some \"higher\" law. In accord with this defense, Hart presents as the central positivist claim \"the contention that there is no necessary connection between law and morals or law as it is and law as it ought to be.\"4 And