The Not So Minimum Content of Natural Law
1 James Parker Hall Distinguished Service Professor of Law, The University of Chicago; Peter and Kirsten Bedford Fellow, The Hoover Institution.
This article examines Hart’s claim that it is possible to identify a core set of moral principles that constitute the minimum content of natural law. It argues that there is no reason to link natural law solely to self-preservation when its principles could be extended to maximize social welfare. The article then shows how these so-called minimum rules of property, contract, and tort have in fact large generative powers that allow them to explain many of the salient features of any complete legal system. The article also shows how the relevant principles in this regard can be developed by an appeal to Hart’s principles of defeasibility and causation. Both of these concepts organize the orderly and incremental expansion of legal rules from their initial core into a complete legal system.