A Study On Hart's "Minimum Content Of Natural Law"

As the founder of the new analytical positivism jurisprudence, Hart's theoretical points are'starting point of constructive theory'. He re-saved the analytical positivism suffering from critical after the WWII by using the philosophy of ordinary language analysis method, and built'the minimum content of natural law'theory.This paper attempts to view the background of this theory, analytical methods, the specific content of the theory, and its intent and purpose, on the basis of which to respond to the accusations of analytical positivism.After the WWII, legal positivism was facing on huge crises. One hand, jurisprudence was supplanted by the other disciplines; and the other hand, the theory thesis of "the separation between law and morality" was also been blamed for it provided a theoretical basis for the Nazi regime. Positivist legal philosophy is facing external and internal crises, and positivism was likely to decline in this situation. Hart was also facing the plight of almost the same belief in legal positivism at the same time. He narrowly won the post of Professor of Jurisprudence, but before, he had done nothing constructive in the field of jurisprudence. Hart had to response to the criticism of positivist legal philosophy, but also deal with challenges from the outside world.Hart's argument with Fuller was the respond to the accusations of Positivism from Natural Law. He pointed out that there was overlap existing between law and morality and which already exist in the Bentham and Austin's theory. He also pointed out that this was an accidental duplication of historical facts and can not infer that the moral was standards of the contents of the law or the ethical and moral was standards of effectiveness of law. Coincidentally, the fact had been confirmed, but which did not mean that such an overlap would always occur. The theory of "minimum content of natural law "which focused on the reason that overlap occur, pointed out that the survival of humanity and natural self-preservation(Perseverare in esse suo) could be the most basic purpose.This paper introduces two philosophy ideas which were used in Hart's theory. The utilitarianism philosophy and Philosophy of Linguistic Analysis, the former is the basis of positivism theory, and the latter is more important .It provides a new analysis method for the 'minimum content of natural law'theory. These philosophies are mentioned repeatedly in Hart's theory. After introducing these philosophy ideas, this paper introduces the'minimum content of natural law'.People conduct in any way, but there are some conducts in the same way. Such universally recognized principles of conduct which have a basis in elementary truths concerning human being, their natural environment may be considered the'minimum content of natural law'. This includes a natural aim and five natural facts: Human vulnerability; approximate equality; Limited altruism; Limited resources; Limited understanding and strength of will.It is to be observed that the same natural fact of approximate equality between men is crucial importance than others, and so not dependent on their forbearance, the strength of the malefactors might exceed that of the supporters of law and order. And it is the function of law to avoid occurring. I hope that this paper can have a deeper understanding about the new analysis positivism jurisprudence, and has the inspiration significance to China's legal practice.