p.p1 doctrinal concern.Legal theorists can be divided

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The argument of whether or not morality and law should be mutually exclusive has been present since the beginning of the exploration of philosophy, from the founding fathers of legal and moral philosophy, but is still relevant to the society today. The Hart-Fuller debate is the perfect illustration that demonstrates two different concepts of thinking such as positive law theory and natural law theory. The debate is divided between two different views of legal opinion. The positivist view of Herbert Lionel Adolphus Hart (H.L.A. Hart) arguing that law and morality should be separate, and the belief of Lon Luvois Fuller (L.L. Fuller) who is considered to be a natural law theorist who claims for morality as the source of law’s binding power. This debate touched on many different issues but the focus was on Hart’s defence of positivism and the separation of what law “is” and what law “ought to be”.

David Hume was the first philosopher who pointed out the significant split between what law “is” and what law “ought to be”. Hume suggested that all objective human reasoning could be divided into two kinds, knowledge of facts and knowledge of ideas. The crucial point is that Hume’s accords more authority, he argued that the only knowledge that we can be sure of is the knowledge that is based on accurate observation and that we can see and describe. And this leads to one of the most important of his contributions which is what is called the “is,” “ought” divide.

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The conflict of “positivism” and “natural law” is not merely of doctrinal concern.Legal theorists can be divided into two schools of thought, those who support positivism and others who follow the natural law theory. Legal positivism is formed on a simple allegation that the conventional definition of law is a worthy objective and it needs to be kept separate from moral judgments. Their theory stands around the belief that the question of what the law “is,” should be separated from, the question of what the law “should be”. Though, we should not adopt the notion that they believe morality is not present in law, what they are saying is that for describing and defining law, moral correctness is not necessarily a crucial part of that definition. 

Early advocates of legal positivism included Jeremy Bentham and John Austin, believed that “the existence of law is one thing; its merit or demerit is another .” The natural law theorists, however, believe that rules or principles can only decently refer to as “law” if they comply with an acceptable code of moral behaviour. Some of the most known Natural Law theorists in history, such as Aristotle, Plato and Lon L. Fuller have expressed the view that “law is only just and legitimate if it promotes the common good.” However, Positivists such as H.L.A Hart and Thomas Hobbes believe in a differing concept, that a law is only legitimate if it has been “established through the proper steps by someone with the total power to do so regardless of the content of that law, containing no essential need for morality.” While each theorist presents his explanation, each attempts to answer these fundamental questions about law and its application inside the society. 

The modern set of approaches to natural law arose as responses to legal positivism. The way legal positivists characterise traditional natural law positions the most recent discussion of “natural law theory” derives from the 1985 Harvard Law review. The two schools engage in a debate about the particular approaches to a case study. The discussion itself is a debate between H.L.A Hart and Lon Fuller that occurs in the late 1950’s in the pages of an American Journal “The Harvard Law Review”. In the debate, Professor H.L.A Hart initiated the basis for the restatement of natural law theory and the conceptual separation of law and morality. The Hart-Fuller debate is concerned with the relationship between law and morality with specific reference to Nazi law and the validity of Nazi law. Hart felt it best to argue the line that whether the rules were unjust or irrational, should not influence their status as law, demonstrating a blatant disregard for moral issues within a legal system and that laws should not be invalidated on moral grounds. The debate brings out a conflict between the two theoretical traditions and is shows consequences to this models and ideas. It is to be noted that the debate itself was ultimately influenced by two events both associated with World War II. 

Both philosophers reflect on the actions of a German theorist, named Gustav Radbruch, who was considered to be a positivist until a certain point where he defected to Natural law after the Nazi regime and its evil manifestation in the legal system. He thought that the Positivist mindset contributed to the failings of the legal profession to stand up against the Nazi law. So he moves on and changes his position as he believed that fundamental principles of humanitarian morality were part of the law. After the Nazi tyranny, Radbruch came to the idea that law and morals are not to be separated, because the validity of the Nazi regime laws could not change by showing that its requirements were morally evil. Radbruch supported the idea that “positivism” contributed to the horrors because it enhanced the risk of making harmful laws efficient. H.L.A. Hart believes that is impossible to read without sympathy what Rdbruche’s said and to the passionate demand that German legal conscience should be open to the requirements of morality,  however, he mentions that his argument has only half digested the spiritual message of liberalism which he is seeking to convey into the legal profession.

One of the points of connection in the Hart-Fuller debate was a decision by a German postwar court, the case of the Grudge Informer. In that case, a woman in desperation to get rid of her husband, she decided to report her husband to the authorities and stating that he was making insulting remarks about Hitler. Apparently, it was illegal to make such statements, though the wife was under no legal duty to report him. Following that, the husband was found guilty and sentenced to death. The government prosecuted the wife with the offence of “illegally depriving a person of his freedom,” she pleaded that her husband’s imprisonment was following the Nazi statutes and therefore she had committed no crime. Notwithstanding the fact that the husband had been “sentenced by a court for having violated a statute” the court found her guilty of the offence because the statute was “contrary to the sound conscience and sense of justice.” Hart reports that the reasoning has been applied in many later cases, and these were “hailed as a triumph of the doctrines of natural law and as signalling the overthrow of positivism.” With this in mind, the significant debate between H.L.A. Hart and Lon Fuller is based on this type of “grudge cases” and on the dilemmas that those sort of cases brought up. Is an immoral law valid? Both Hart and Fuller take different approaches to this particular question. 

There is an agreement between Hart and Fuller that those actions were morally repugnant in some way, the question is how we view the law. Much of the force of Hart’s argument comes from his insistence on the moral and practical importance of separating conceptual from moral questions about laws. As Hart states “Law is not morality, do not let it supplant morality”. If we follow Hart and the positivist approach, in this case, it means that the woman acted under the law and it means that we are left with a morally unacceptable outcome, so how should we deal with that kind of cases? Hart defended the view that since the woman had committed no crime under the applicable law of the time, the only appropriate way to criminalise her conduct would be under a new retrospective legislation. The sole purpose of choosing this option is that it avoids blurring the distinction between what law is and what law ought to be. Retrospective legislation is not a favourable option as it comes against the rule of law; however, Hart agrees that it is only to be used in exceptional cases. If we embrace the court’s course of thought and affirm that “certain rules cannot be law because of their moral iniquity”, according to Hart, we “confuse one of the most powerful, because it is the simplest forms of moral criticism” and as such we should say that “laws may be laws but to evil to obeyed.”

Hart promoted and adopted a more contemporary analytical outlook to bear on the central problems surrounding legal theory; he moved legal positivism to a different direction while he still insisted on the importance of the separation between law and morality. Additionally, Hart believed that law is not a mere subject of sovereignty, but it helps to constitute sovereignty, he favoured the view that, “one acts because one believes that one ought to do so, not because, or not merely because, one fears the consequences of operating in a contrary way”. He talked about the minimum content of natural law, where he explained his belief that law and morality often do overlap, but without there being any necessary connection between the two. However Lon Fuller argued against a sharp separation of law and morality, but the position he defeated was far apart from the traditional natural law theory. Fuller rejected what he saw as legal positivism, the idea that the sovereign gives orders and the citizens obey. He expressed the belief that those in authority are not entirely free when they create law, they must adapt to factors beyond their control, aspects of human nature and the nature of the society.

By using the Grudge Informer case, Hart was trying to make a point to show that the court’s decision was not punishing a woman for an immoral act, but it was applying a statute established by German law since 1934. Hart argued amongst other things that the courts have no alternative but to implement  an appropriately enacted statute however evil its aims might be. Notably, for Hart, the only way to avoid talking “stark nonsense” is to adopt the view of his positivist predecessors, Jeremy Bentham and John Austin, that the validity of particular laws does not depend on their moral content. Rather, if “laws reach a certain degree of iniquity, then there is a plain moral obligation to resist them and to withhold obedience”.  Hart supported that the fact that some laws are unjust or irrational should not influence their validity as laws. In the light of this, he recognised that the Nazi law was enacted at the time and so the wife, in this case, should not have been punished for following those laws. 

Hart, as a positivist upheld that there isn’t and should now not be any necessary relationship between a legal system and the notion of morality, a legal system can operate effectively regardless of whether or not it is just or moral. In 1961 H.L.A Hart advocated for the separability of law and morality in The Concept of Law, where he supported that there ought to be a clear differentiation between the idea of law as it is and what the law should in fact be. He believed that it was possible to study and apply law in a descriptive sense (how people behave, rather than a normative sense (how people should behave). However, one should not form the idea that Hart believed that law and morality were separated entirely, he conceded to the overlap between them and accepted that there was a connection regarding politics systems as it is now time to mention the example of the Nazi system of Hitler. 

Hart alleged that a legal system based on power, coercion and sanctions, outlined a misguided picture of the law. As Hart famously put it, ‘law is surely not the gunman situation’ and “legal order is surely not to be identified with compulsion.” Eventually, Hart conceded that law is based on “fundamental accepted rules specifying the essential lawmaking procedures.” Following this further Hart argued that legal order is the product of a combination of primary rules and secondary rules, primary rules of obligation, imposing duties and secondary rules conferring powers; in particular the rule of recognition, however, the most important of these is the rule of recognition, the rule that determines legal validity. 

Professor Hart supports the Positivist school of jurisprudence from many of the criticism which been levelled against its insistence on distinguishing the law that is from the law that ought to be. In the Harvard Law Review, he demonstrates the views of Bentham and Austin and expresses their concern with two issues. Firstly the lack of a constitution, cannot derive the fact that if a rule is morally wrong, it cannot be a “rule of law” and secondly that we cannot recognise a “rule of law” merely on the fact that is moral. The Utilitarian separation of law and morals was welcomed form many theorists as it provided clarity and was described as self-evident. However, he continues by commenting on the criticism of this separation and defending Bentham and Austin by explaining that when they were making up this rule of separation, they had in mind specific laws with clear meaning.

In contrast to Hart, Fuller thought that the legal theory debate was best understood as one about different ideas of fidelity to the law at the fundamental level. Fuller, as a modern natural lawyer, supports the notion that law and morality cannot be mutually exclusive from one another and he upholds the decision of the courts nullifying Nazi rules. Fuller’s idea of morality is based on the consistency of the law-making process and, he continues arguing that there is an “internal morality” consisting of eight fundamental principles and that no system of rules which does not comply with these principles of legality is to be referred to as law. Those principles are: laws should be general; they should be promulgated, that citizens might know the standards to which they are being held; retroactive rulemaking and application should be minimised; laws should be understandable; laws should not be contradictory; laws should not require conduct beyond the abilities of those affected; they should remain relatively constant through time and, there should be a congruence between the laws as announced and as applied. What Fuller didn’t realise, however, is that the Germans faced explicit pressure at the time, it was under the dictatorship of Hitler and anyone who spoke against his regime faced harsh sentences. 

Fuller, therefore, tried to express his belief that the Nazi system and its rules were not an actual legal system because in his eyes they were just upholding a Tyrannical regime and failed to meet certain ‘morally internal’ principles that would establish legitimacy. He emphasised that the incorporation of evil aims in law results in removing its very foundation, namely the claim to command fidelity to the law. As Nicola Lacey comments “The Nazi system was so shot through with breaches of law’s inner morality that it has lost any claim to fidelity or legal authority”.

The ‘internal morality’ that Fuller focuses on is similar to the rule of law because it has a procedural aspect as we will see. In the debate, Fuller states that if we look at the Nazi rules, we cannot even say it was law, but why not? Because they did not comply with the inner morality of law as he believes. Fuller expresses his view by saying that “To me, there is nothing shocking in saying that a dictatorship which closes itself with a tinsel of legal form can do far depart from the inner morality of law itself, that it ceases to be a legal system.” If the legislators create rules which are not possible to obey by citizens, it will lead to failure in making the law. In the situation, it will rise to ‘something bad law but not law at all’. We can say that the law is not reflecting a system of rules which is completely incapable of guiding the conduct of ‘legal system.’ Consequently, the grudge informer case serves as a means of demonstrating the opposing views surrounding both the nature of law and its connection with morality. 

Revisiting the Hart-Fuller debate, it is worth reflecting on the remarkable fact that it still speaks to us so powerfully today. Hart and Fuller had much in common, and both present a powerful belief in their legal systems and that of the other. As Leslie Green notes in his paper, both Hart and Fuller share a belief in law and that belief can be separated from that of anarchists such as Kropotkin who wrote of the ‘uselessness and the harmfulness of law’. Both assumed a society organised in a particular way with an appropriate legal framework and system.

The debate between H.L.A Hart and Lon Fuller maintains a special place with the substantial contribution to twentieth-century legal and political philosophy. One valuable way of looking at the debate is as an extended dialogue on the contour and significance of the rule of law. Peter Cane writes that the aim was to look forward rather than backward, using the debate as a point of departure and inspiration.

Through the debate, it becomes a matter of capital importance what position is assigned to the judiciary in the general frame of the government. In any case, Hart and Fuller concur that immoral and unjust legal frameworks are probably not going to be steady and extensive. Lacking ethical quality and equity, can’t charge the dependability of the general population and must rely on restraint. At the point when the repressive regime falls, its framework falls with it. As John Stuart Mill stated “law should not impose its concept of morality on individuals. Individuals should be free to choose their own conduct, as ing as they do not harm others.”

Lord Bingham in his interview with Joshua Rozenberg’s gave his opinion about the rule of law. As he stated, “We live in a world and, to some extent, in society, in which great differences exist of race, of nationality, of religion, of wealth etc. No simple principle is going to transmute all these differences into universal harmony,” however, he believes, and he is satisfied to the fact that the observation of the rule of law is the solitary way we can get closer to a universal secular religion. Another point that he makes is that we want to be governed by laws and not discretions, the rules are there to maintain a standard in our society, it is not possible to have laws that are favourable for everyone in today’s society.

The Hart-Fuller debate shows that there are different ideas concerning the rule of law, Hart believed that the law could be identified regarding criteria of recognition and distinguished from prevailing social norms, arbitrary exercises, morality or religion. The rule of law always stood for the notion that power is constrained by its exercise according to legal forms. But the nature and extent of this constrain has inevitably varied over time. One of the interesting things of the debate as Nicola Lacey pointed out, “is the way it frames the downing of an ambitious idea of an international rule of law-oriented to the universal holding of states and state officials to certain basic criminal law standards.”

Hart and Fuller’s articles quickly became, and remain, a standard reference point for the opposition between legal positivism and natural law theory and for our conception of the rule of law. As far we concern as long we have good law does not mean we can produce a good society. The inner morality must be there in each individual so only we can develop a good society. As always in Jurisprudence, things are not quite as straightforward as we might wish, and some initial ambiguities and uncertainties must be addressed before we can proceed to the primary engagement.

In conclusion, the conflict between Hart and Fuller over these topics as discussed are consistently apparent; neither one is prepared to recognise much to the other’s viewpoint and rests committed to defending their opinions in the face of repeated attacks and allegations from the other. As a result of this, since the arguments of each professor depends conclusively on his understanding of the law and his sense of morality about the nature of man and the world in which man lives, their philosophical disagreements seem incompatible. What is significant from the debate is that we can explore the two opinions of the philosophers about what a “law” is and when is a law to be considered as a “rule of law”. The answer differs in the eyes of each philosopher, and as we can extract from Lord Bingham’s interview, the rule of law still needs to be observed. 

Categories: Case Study


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