ASSIGNMENT

“HART FULLER DEBATE ANALYSIS ”

LAW AND JUSTICE

Submitted By: Submitted To-

Anjana Meena (LLM, Corporate Law., Semester II) Ms. Vini Singh
Roll no - 1173 (Assistant Professor)
 INTRODUCTION

Law and morality can be understood as concepts, but any attempt made to define them
becomes difficult. Laws are concerned with legal rights and duties which are protected and
enforced by the State. They are backed by sanction, and therefore if one disobeys the laws of
the State, they are liable to be punished. On the other hand, Morality categorizes human
behavior as good or bad. The cannons of morality however are based on moral duties and
obligations. If one does not adhere to the standards of morality that is prescribed, he cannot
be held legally liable. However, morality involves incentives of sorts. When we do the right
thing, we experience virtue and enjoy praise and when we do the wrong thing, we suffer guilt
and disapprobation.

Prof Hart‟s view on Law and Morality

Prof HLA Hart was a legal positivist and a critical moral philosopher. As a legal positivist, he
states that it is not necessary that laws have to necessarily satisfy certain demands of
morality. While acknowledging the close relationship that exists between law and morality,
he does not believe them to be inter-dependant on each other. He states that the existence of
law cannot be judged by its merits or demerits. A law happens to exist, irrespective of our
likes or dislikes. Whether the law confirms to a set of minimum moral standards is not a pre-
requisite for existence of a legal system. It is not essential that a legal system must exhibit
some conformity with morality. Unlike the other legal positivists, Hart does not deny that the
development of law has been profoundly influenced by morality. Hart acknowledges that law
and morals are bound to intersect at some point. Therefore, it becomes necessary to
distinguish between what law is and what law ought to be. Hart also talks about primary rules
and secondary rules. Primary rules are duty imposing rules on the other hand secondary rules
are power confirming rules.

Professor Fuller‟s view on law and morality

Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating human
behaviour through laws. He believes that our legal systems are derived from the norms of
justice which have a moral aspect. He argues that for a law to be valid, it must conform to a
certain moral function test. These are the eight desiderata set out by Fuller; (I) Rules (ii)
published (iii) prospective (iv) intelligible (v) not contradictory (vi) possible to comply with
(vii) reasonably stable through time (viii) followed by officials. Fuller implores law makers to
take into consideration each of the above before determining whether a law is valid. Fuller
goes further to explain morality by categorising it in two; Morality of aspiration and morality
of duty. Morality of aspiration suggests a desired norm of human conduct that promotes
his/her best interest. Morality of duty describes the standards people follow to ensure smooth
functioning of society. Other forms of morality discussed by Fuller are “Internal morality of
law” and “External morality of law”. the former is concerned with procedure of law making
while the latter focuses more on substance rules of law which are applied in decision making.
fuller rejects the positivist approach to law and argues that society’s goals can be achieved by
other means rather than relying solely on law.

The Hart-Fuller debate surrounding law and morality

Hart published his book, “The Concept of Law” in 1961 as a rejoinder to Fuller‟s article.
Fuller replied in 1964 by publishing his book, “The Morality of Law”. Hart‟s review of
Fuller‟s book was published in 1965 in the Harvard Law Review, to which Fuller replied by
publishing the Second (Revised) edition of his book,” The Morality of Law” in 1969, in
which he dedicated a chapter to replying to his critics.

The difference in ideologies resulted in this discourse between Hart and Fuller. While,
positivism holds that to be a valid law, all that is required is that it should have been issued
from a competent legislator after following the prescribed process, natural law theory holds
that there exists certain ideal principles or values to which the law should correspond, if it is
to be regarded as a genuine law.

The existing conflict between law and morals can be better understood by way of discussing
a case famously known as the Grudge Informer case.

Grudge Informer case

A German woman denounced her husband to the authorities in accordance with the anti-
sedition laws of 1934 & 1938. He had made derogatory remarks about Hitler. The husband
was prosecuted and convicted of slandering the Fuhrer, which carried the death penalty.
Although sentenced to death he was not executed but was sent as a soldier to the Eastern
front. He survived the war and upon his return instituted legal proceedings against his wife.
The wife argued that she had not committed a crime because a court had sentenced her
husband in accordance with the relevant law of the time. However, the wife was convicted of
‘illegally depriving another of his freedom’, a crime under the Penal Code, 1871, which had
remained in force throughout the Nazi period. The court described the Nazi laws as “contrary
to the sound conscience and sense of justice of all decent human beings” (1951)”.

View of Hart and Fuller on this case

If we follow Harts positivist views, the decision given by the Court was wrong, because hart
believes that no matter how heinous the Nazi laws were, they were in accordance with the
Enabling Act passed by the Reichstag, and were valid. It satisfies Hart’s rule of recognition.
Fuller on the other hand recognised the Court’s decision because it created respect for law
and morality, and by using his 8 desiderata Fuller states that all Nazi laws were illicit. This
justifies the courts overlooking of the earlier 1934 act and upholding the wife’s conviction.

According to Hart, the Courts were left with only two options to preserve the integrity of the
judicial decisions, either to let the wife go free because the statute protected her, or make a
retrospective laws repealing the statute under which she claimed protection, and declaring the
acts of the perpetrators of such atrocities as criminal. Even though Hart did not favour the
retrospective application of criminal statutes, he argued that the Nazi regime could have been
considered an exceptional circumstance for the application of retrospective of laws, if the
Courts were afraid that Hitler’s accomplices would be acquitted. Hart was strongly against
the Court’s decision to introduce a concept of morality and deciding the statute which
protected the woman was no law at all.

Fuller contended that Hitler’s regime was so harmful to morality, that there was nothing in
the system that could qualify to be called a law as they did not comply with his desiderata. He
stated that the Nazi laws lacked the necessary internal morality required in the process of law
making, which gives laws respect and makes them obligatory to be followed by citizens.
Fuller believed that unless the Nazi laws were treated as non-laws, the perpetrators of evils
under the Nazi regime would go unpunished.

In order to justify his arguments that morality is not always necessary or relevant when it
comes to application of rule of law, Hart, presents us with a hypothetical illustration.

Conclusion

I side with Fuller, noting the crimes perpetrated under the Nazi era. Hart himself gives justice
because he states his acceptance law would include certain legal values. Law and morality
share several things in common, as both set out acceptable habits that are demanded of
humans. I agree that if the public have to obey the rule then it will adhere to the norms of
conduct that citizens expect. The expectations are primarily dictated by morality. We can see
a lot of overlap in what Fuller said regarding natural statutory law. Progressive decisions by
the judiciary, acceptance of the standards of life in partnerships and consensus-based equality
between people of the same equality demonstrate how the judiciary has understood law in
terms of shifting societal norms in our culture.

I believe that there is a necessary connection between law and morality. While Hart claimed
the partnership between a statutory framework and the ideals of morality was not important.
Fuller insisted that law and morals cannot be isolated from one another. Both related to
contrasting fields of thought, and both supported their ideologies. We also decided, however,
that an unfair and unethical rule of law would not remain effective and existed for long.
Judicial structures seek to promote legally grounded morality. A Government's authority
comes from morals. An overwhelming portion in people won't accept the rule in law because
they have some sort of social duty. A regime that ignores truth and fairness would continue to
depend on repression. So when a government of tyranny collapses the structure sinks with it.
Practically, distinguishing law from morality is not possible, either. When civilization grows,
the idea of meaning continues evolving.