Хартово поимање односа права и морала у контексту правног расуђивања
Hart's Understanding of the Relation Between Law and Morality in the Context of Legal Reasoning

Author(s): Brano Hadži Stević
Subject(s): Law, Constitution, Jurisprudence, Ethics / Practical Philosophy, Philosophy of Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Hard cases;Legal qualification;Dialectic nature of legal reasoning;Law and morality;
Summary/Abstract: The author analyzes one aspect of the relationship between law and morality in Herbert Hart’s theory – the one that deals with the judge's reasoning in hard cases, when the issue of legal qualification comes to the fore. In such cases, the dialectical nature of legal reasoning is visible, since the judge comes to a rational decision by valid argumentation rather than by simple deduction. Hart pointed out that in hard cases, the judges have in mind the concept of what law should be, but that is not a sign that there is a necessary connection between law and morality, since the word “should” indicates only that there are some criteria of criticism, which are not necessarily moral criteria. The author will try to analyze his position and determine whetherHart really separated law from morality, what type of connection betweenthe nature of law and moral exists, and what, in Hart's opinion, awareness ofwhat law should be actually implies.

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