HART-FULLER DEBATE

HART – POSITIVISM AND THE SEPARATION OF MORALS

Utilitarian thought

 harm principle – Mill – used especially for criminalisation (traditionally criminal law was to
prohibit what states want to prohibit) – usually looks at direct harm – but what is harm? –
three layers: whether it crosses the threshold of harm? whether it must be regulated? whether
it must be criminalised?
 Three theories of utilitarian thought on law – imperative theory of law
o Separability of law and morality
o Analytical study of law is as important as a social/historical study – analyse and
evaluate law and legal concepts
o Law is a command – imperative theory of law

Separability of law and morality

 if you confuse law and morality – clarity is gone – anything can be claimed
 morality is not social morality, but critical morality which is unchanging/universal

Analytical study of Law

 Individual concepts require study – understanding mens rea is important, more important
than precedent on mens rea
 The concept of law itself is a major concept that requires study – laws need to be certain,
predictable, consistent and therefore, efficient
 IPC and IEA – utilitarian thought is very evident here – the entire principle of this
codification exercise was utilitarian – Macaulay and Stephen both talk about how to draft law
– say the entire statute should have one set of values and you should be able discern those
values

Hart – in this essay defends the separation of law and morals – criticisms levelled on utilitarian legal
thought has touched on truth

 First part – virtues of utilitarian thought in law – on how you understand law, notion of rights,
without conceding a connection between law and morality – positivist thought – taken the
 discipline of law forward, established human rights – ironic that natural law which was
content with inequitable regimes now accuses positivism of a possible totalitarian regime
 Criticism of utilitarian thought – some are valid, but even those criticisms do not derogate
from the first thesis which is the separability thesis

Austin’s conception of law – criticisms of command theory

 in a modern legal system cannot locate the idea of a sovereign

 does not explain the existence of several types of law – sometimes law plays a mediating/
facilitative role, not commanding
 legal rights and limitations on powers of sovereign

Hart – this criticism, while valid, does not show that law and morals have to be the same – there can
be principles which can govern actions of individuals, but they do not have the force of law

Criticism from legal realism –

 Legal realism – what really goes on in the law, how does law behave, how is it brought into
existence and taken out – focussed on studying what do courts do: how do judges decide, do
judges have social aims/biases, consider outcomes –
 Legal realists have thought that legal positivists are formalists / that positivism is a formalist
theory of law – legal positivism denies that judges have any discretion, that they never apply
anything beyond the law
 Hart concedes to this – social aims, morality can be posited in law which judges might take
into account, plus there is the penumbra where judges have discretion – still does not
derogate from a conceptual separation between law and morals
 The fact that judges routinely look beyond the law doesn’t prove the natural law theory –
judges can look at anything beyond the law, not necessarily a moral principle – does not
derogate from a separation between law and morality
 Positivism recognises that are principles within the legal system that can be recognised by
judges and applied – Blackstone was a formalist

Nazi Germany – a system that turns evil – doesn’t take much for a legal system to start
discriminating in an evil manner
 German system – was extremely dryly positivist – led to all these evils being brought into law
with so little resistance – testament to failure of legal positivism – no judicial review
 Gustav Radbruch – legal positivist turned NLT after WWII
 Hart – calls this massive turn to NLT hysteria

FULLER
 Hart - just because one judge is formalistic, and another is not, doesn’t mean the latter will
use his position to take the law away from NLT – non-formalistic approach doesn’t mean that
judge will follow NLT
 Fuller’s basic disagreement with Hart – good purposes have more logic coherence than bad
ones – if you want to achieve evil, you will take away the logic coherence of law – take away
basic procedural requirements and safeguards
 A logical system of law by its procedure itself makes the achievement of evil outcomes
difficult – this is the inner morality of law –
 Eg: Hyderabad encounter – starting point of the breakdown of a legal system
o Fuller – procedure not followed making evil outcome easier
o Hart – would also say this is a violation of law – secondary rules not followed –
clearly a violation of posited law – no need to go further, into morality – a legal
system cannot sustain itself if state officers start violating secondary rules – police
officer should know the inherent value of following the required procedure – here it is
a willing ignorance/disregard for this rule
 Terror acts / special statutes / POCSO – violate certain basic principles of law – derogating
from generality of law, which for Fuller is a principle of morality – if a legal system has to
achieve evil outcomes it will derogate from generality – create in your mind this idea that
certain offences are different, need to be looked at and dealt with differently – already
covered in the IPC – all these special statutes take away procedural safeguards – show that
you have no trust in state officials (like police officers) || Hart – would say that this is still
validly posited law, evil or otherwise
 state and rights of individuals are always in tension – the nature of state power is that it will
try to take away more and more of liberty – so state waits for moments of social rupture to
encroach upon these rights
 Utilitarian thought – deterrence only works when three things are satisfied – punishment is
swift, certain and severe – killing the wrong person reduces deterrence since now it’s possible
to get away with it
 Nazi case – wife reported husband for bad-mouthing Hitler in private; law said that public
criticism must be criminalised; statute was immoral as punishment was disproportionate to
crime committed
o Hart – she followed posited law, what she was obligate to report – saying that she can
be punished for following law is an evil outcome – having a retrospective posited law
is evil, but if you concede that you are creating an exceptional circumstance, you will
know that this is only justified in certain cases, this will not be often repeated – there
is a value to doing evil clearly
o saying that the legal system did not have the force of law, when it came close to
having the formal requirements of law – doesn’t make sense, no clarity – denying the
moral dilemma – brings in a lot of confusion into what is law – positivism clears this
away and tells you what is and is not law, whereas NLT does not tell you that – Hart
says face the moral dilemma
 Special statutes – might be evil laws, might not create obligations in the fullest sense – but
still have the authority of law, because they are posited
 Hart-Fuller debate – talk about different things – Hart talks about individual laws, whereas
Fuller talks about the system – but this is how these theories view the law – NLT has always
been concerned with the bigger picture, with the law as a system which is progressing
towards the society which we wish to achieve
 Fuller – Hart’s criticism on Radbruch – confront the question as to whether the Nazi legal
system was a legal system at all – this system was in a habit of passing retrospective statutes,
secret laws – for the most evil things in the regime there was no record of it ever being law,
might have been word of Hitler – can a system that works in this manner be called a legal
system – does it fulfil the basic conditions, whatever they are – should a judge go through
Nazi files and ascertain what was and was not passed / posited as law – and so to disregard
the statute under which the woman complained is not to disregard law, but rather saying that
it never had the force of law
 Law must necessarily take into account the difference between order and
good(/just/merciful) order – if you just view the law as a descriptive term you can never take
into account the aim that law had, as a social instrument to achieve certain things – law must
 exist to create good order – Nazi Germany had order, just not good order – just because
something has formal recognition doesn’t mean it becomes a legal system – would things
passed in secret or some man’s word, would that have the force of law, and be part of a legal
order – cannot restrict it to creating order, but needs to create a good order
 Hart – wants to define what law is || Fuller – looks at the legal system as a whole
 Hart – you can achieve the most evil and pernicious ends by way of a perfectly good order ||
Fuller – let’s assume that the judge is hell bent on doing evil – is it more likely that the judge
will reach this point by following general/legal principles, or not? – if the former, it is more
likely that he will achieve an equitable result – if a judge wants to achieve evil, he is more
likely to do so by ignoring/disregarding these principles and their normative values –
generally these principles lead to good results, if you want to achieve evil you mostly start by
disregarding them – even the most evil regime will hesitate to write down evil laws, at least
in theory they will accept these principles as being there
 Eg: Citizenship Amendment Bill
o Hart – evil coherent design
o Fuller – look at the application – the judge if he has to apply this and reach a humane
outcome, he will look at principles (posited or otherwise)
 Fuller – generality limits the evil that you can do – the moment you derogate from it, it’s
easier to achieve evil
 Ameliorated goals – have to be achieved by general law, without resorting to special law –
SC/ST Atrocities Act – tweaks to move towards equity can be achieved without a special
statute – not to say that if you derogate from even one of these principles your legal system
will cease to exist
 The moment you concede that these moral principles exist in law, they tie you down –
because you cannot say out loud that you are doing evil things and derogating from these
principles
 Hart – says the content of the laws being evil cannot make them not law || Fuller – when he
speaks about these characteristics of the legal system, he also doesn’t look at the content of
the laws, he looks at what he has identified as inner morality of law – retrospective laws, laws
passed in secret, the method of passing legislation which was clearly evil – these institutions
of law weren’t even necessary in Nazi Germany, they could just ask Nazi Party workers – a
system like this cannot create law, and hence laws created by this system cannot create a
legal system
 Conceptual difference between positivism and NLT – the way law is looked at
o positivism – looking at law as purely a physical phenomenon with a set of rules
o NLT – look at law as a continuing enterprise that puts into action collective/good
goals and aims, then you’ll look at the inner morality of law, how it is legislated –
looks at law in a holistic manner, as purporting social aims
 Radbruch – clearly saw that the overreliance on positivism led to the system breaking down –
lawyers and courts were the first barriers, should have asked the right questions to power,
find out the end goal of the government, and whether this is justifiable – German courts and
the legal system were unable to do this because they had internalised the formalistic idea that
if something was laid down it must be adhered to, doing a purely logical analysis without
looking into how this law had come into being, what its purpose was – and if law is a social
instrument you cannot be restricted to a formal analysis – formalism is a vice promoted by
legal positivism
 Hart denies this charge of positivism being formalistic – also shows how judges not being
formalistic does not necessarily mean that they will be moral – being formalistic and non-
formalistic are both value neutral – if you have an evil judge, you’d rather he be formalistic,
and tied down by positive law
 Eg: PIL movement – lowered procedural barriers (no filing, no IEA) to encourage greater
access to SC – need for locus standi (person to be well-versed with the matter and argue it to
the best of their capability) – acceptance of PIL movement reflects activism in law – non-
formalistic view taken of the matter – this doesn’t mean justice will be reached
 On penumbra:
o Hart – looks at penumbra in a linguistic sense, some words having fixed meanings
and others having vague meanings – sees it as an exceptional circumstance
o Fuller – says that each word is placed in a statute in a specific context, without which
you cannot understand what the statute is doing – always need to keep statute in mind
while interpreting law, not just in exceptional circumstances of penumbra – while
looking at context you inherently look at social aims and goals of the law
 Two concepts differentiated by Fuller – distinguish between order and good order – the
purpose of NLT is to ensure that order created by law is good order, whereas LP will be
content with order – good order is got from the legal system complying with morality, having
fixed principles it cannot violate – seen in Constitutions, where values are posited in some
ways, not posited out of agreement, posited because society, if allowed to violate them, will
 violate them which will lead to a collapse of the legal system (eg: secularism as a principle) –
these values exist as a limitation to posited law, and exist to guide judges and law makers –
this limitation makes it a good order
 Any legal system should have the basic principles of certainty, predictability, clarity – but
NLT takes it a step forward, says that the order created must be good, and values apart from
these procedural values (just, fair, equal, etc) are also part of the good order.
 Hart – reasons are also important but because they stem from a social condition, not from
“morality”
 Good order always provides for a channel of dissent – does not suppress it
 “morality” – doesn’t have to be an esoteric, exotic principle – it can be simple basic
principles – limitations on what the law can do, not talking about legal validity, but looking at
a legal system as a whole and the validity of the system – invalid if it lacks some of these
basic principles – more than just the existence of law
 classical NLT – look at the law as having a specific purpose or set of purposes – to give
effect human reason and capability – assuming that human beings want certain universal
things – purpose of law is integral human fulfilment
 modern NLT – law as having some basic values – eg: fairness, achieved through things like
reasonable procedure, general law, no retrospectivity, etc.
 legal positivist – need not say that in any sense the law has a higher purpose – might have a
purpose that social convention wants it fulfill, that it recognised, there might also be no
purpose – we can choose which social conventions to recognise or discard – a necessary
connection is not required with morality – law fulfills what social convention tells it to fulfill
 ELPs – no link between law and morality other than a historical coincidence – Austin talks
more about ELP
 Finnis – law as a conceptual idea being dictated by something that has to pronounce it as so

LAL ZENDA COAL MINES CASE

Compulsory contribution made from worker’s salary to the PMRF – claim that this is unauthorized,
legally – Steering Committee made this decision – whether written authorization is required for this
deduction

Can it be said that workers constructively gave assent to this decision?

  para 11 – the Union supported the decision, though it might not have been party to decision
making
 Wages Act S.7(2)(b) – says that written permission is required for every single wage
deduction – this is the legal issue here – whether this has been complied with or not – this
compliance is not there – in which case this deduction is unauthorized and should be undone
– but this money has already been sent to the PMRF which means management has to refund
them – unlike to be done
 not a formalist application, no basic logical reasoning followed

SC instead looks at fraternity and fundamental duties

 is this a moral application?

 is this a justiciable application of law, by using the Preamble and Fundamental Duties
 who is the Preamble meant for? Does it create obligations? Who does it create obligations for
– the people or the State?
 Consider the time interval – the facts occurred in 1998, this case was decided in 2014 –
impractical to return this amount
 But such a reasoning opens gates for misuse
 administrative convenience?
 can argue the constitutional right of right to property – cannot be taken away in a manner
contrary to law

Hart

 separation of law and morality – morality must only be brought in in case of a penumbra,
which this case does not have – the law must be followed
 but what if we say that what is posited in the Constitution, these values must also be
considered law – fundamental duties and preamble are non-justiciable rights – just because
principles are posited in law, doesn’t mean they apply in all situations with equal force –
general principles in the Constitution are not justiciable, their purpose is to guide official
action towards its realization
 is fraternity an open textured word – does this word lead to a penumbra?
o possibly not, because the problem here is whether fraternity should be applied in this
case, rather than the meaning of fraternity
o it can be said that there is clarity as to the meaning of fraternity used
  by filing this case as a writ petition in the HC, instead of at the labour court, the parties
themselves widened the scope of the problem – the remedy they wanted would’ve easily been
got from a labour court – but by going to HC, have they brought it upon themselves – by
choosing the forum, have they necessitated the HC to look into these things, thus allowing for
the penumbra
 just because it’s a constitutional law case, doesn’t mean that the judge can bring in principles
that haven’t even been argued upon, but when arguing 14 and 15 are you not opening up the
court to apply substantively the law of equality, which has within it fraternity – courts have
done this before, establishing fraternity starts with equality
 if there is no question of penumbra here, then the rules of logic are sufficient to decide this
case – law qua law has authority, apply this law honestly, don’t look at anything else – this
case is fully satisfied by a formalist application of law – what judges are doing is a non-
formalist application of law in a situation that doesn’t demand it – not a penumbral case
 “formalism is a vice of legal positivism” – this case shows that just because a judge abandons
formalism, doesn’t take you any closer to a more moral result, or the right result, in this case
the judges have reached an iniquitous result – sometimes for law to be clear, and predictable,
you need law to be followed in a formalistic manner – in this case a formalistic approach
would lead to an equitable result, where as a worker your wages will only be deducted under
certain conditions and not otherwise and this right would not be snatched away from you
 generally speaking can say that secondary rule is higher placed above a primary rule because
a secondary rule dictates how a primary rule is to be applied


Fuller

 legal reasoning shouldn’t violate existing law

 harmonious construction of statute with morality
 When a legal procedure is not followed, makes achievement of evil outcomes easier – but this
applies to judges
 a general result should follow from the application of a general law – here there is a
derogation from this generality – procedure not followed, the procedure too must be moral
 this morality is the inner morality of law – which includes basic principles of certainty,
consistency and predictability, along with generality – the law tells us in this case that there is
a procedure that must be followed generally speaking, that procedure has not been followed
in this case – the court is effectively carving out an exception to the applicability of general
law, this takes away from generality, but it also takes away from predictability and certainty –
you don’t know as a worker how your wages might get deducted – the procedural
requirement is effectively being done away with – you lose an entitlement to the full part of
your wages – taking away from the general applicability of statute – values that a legal
system should generally adhere to – the Bombay HC is derogating from these values in its
judgement
 HART-DEVLIN DEBATE
Wolfenden Committee – look into the question of whether certain crimes deserve to be retained as
crimes, or decriminalized – looked at homosexuality, and voluntary sex work – Report not accepted
immediately by English Govt, but accepted ten years later in English law – based on the harm
principle

What is the purpose that law should serve in regulating criminal behaviour, in an individual sphere of
liberty / private sphere?

Devlin – law had a legitimate function in preserving social values and fabric – if law plays a role in
protection of social convention, that is a legitimate role – social morality (capable of change) – first
social morality must change, then law can follow, not vice-versa

Hart – the function of the law is not to preserve or protect any version of society – no legitimacy in
interfering in anyone’s private affairs to preserve social morality

Devlin – what would happen if social morality collapses – would lead to the collapse of a social
order

Hart – there must be a clear and perceptible harm which this regulation seeks to prevent – cannot
speculate and say that this regulation is to prevent the ultimate disintegration of society – direct link
must be established, if you cannot do that, the default must be for the law to step back and grant
liberty – law cannot intrude a sphere of liberty without justification and identifying a particular harm
that this legislation seeks to prevent

Devlin – says that the harm is to society – but Hart is looking for a particular harm – the crux of the
debate is how do you understand harm in this case – liberty v law

Devlin – laws by their very nature are not individual-specific – it may locate a victim but this is not
necessary – laws exist to preserve social norms, need not justify itself of any additional ground than
this – looks at conventional morality, which is susceptible to change