Hart and Fuller Debate on Law and Morality

Is there any necessary connection between law and morality (however “morality” may be understood)? Explain and defend your answer.

In this essay, I am going to be discussing whether there is a necessary connection between the law and morality. 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. If one disobeys the laws of the State, they can be punished. Morality identifies human behaviour as right or wrong. If one does not conform to the moral standards of society, he cannot be penalised by the law. So, while morality seeks to control both the internal external behaviour of people, the law seeks only to interfere with the external. I aim to prove with this essay that not only is there a necessary connection between law and morality, but also prove this connection as a source of the laws binding power. As it would be impractical to discuss all the thinkers, I intend to limit the scope of this essay by focusing mainly on two thinkers: Hart and Fuller. I chose those two because the Hart-Fuller debate is arguably one of the most interesting academic debates in jurisprudence, and also because it demonstrates the divide between positivist and natural philosophy of law regarding the role of morality in law. Over the course of this essay I will be discussing both Hart and Fuller’s position on what constitutes a legal system and show why I think the naturalist school of thought should prevail. I will then proceed to look at Fullers’ argument for why he thinks there is a link between law and morality particularly in the context of Nazi regimes. Then conclude by looking at morality in our modern pluralistic society. My aim by the end of this essay to prove why I believe that there is a link between law and morality.

Before we look at why I think there is a necessary connection between law and morality we must first understand what our theorists (Hart and Fuller) think of law itself and how it relates to morality.

HLA Harts’ view

Hart is a positivist, so he does not believe that there is a necessary connection between law and morality. While he does acknowledge that there is a close relationship between law and morality, and does not disagree that the development of the law has been immensely influenced by morality. However, he does not believe that they are interdependent on each other.[1] As such he feels that a line should be drawn between what law should be, and what law ought to be. The fact of the matter remains, that a law does not stop being law due to moral criticism of it. Hart believes that officials should display truthfulness about the law by concentrating on what it says rather than focusing on what one desires it to say.[2] According to Hart the law consists of primary and secondary rules. Primary rules art duty imposing rules on the citizens and have a legal sanction. Secondary rules are power conferring laws that describe how laws should be recognised, adjudicated or changed. Hart says these rules form the heart of the legal system and the rule of recognition is the glue that binds the legal system as a whole. So, Hart advocates that conformity to a certain moral standard is not required for a legal system to exist. Hart acknowledges that law and morals are bound to intersect at some point, for instance where a case comes up where the wording of the relevant statute is not sufficient to give effect to the purpose of the law (professor hart refers to these as problems of the penumbra), Hart says that such cases can be solved by way Judicial interpretation. A decision can be made about what the law ought to be, and moral factors play a crucial role in deciding such hard cases.[3]

Fullers’ view

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.[4] He argues that for a law to be valid, it must conform to a certain moral function test.1 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.[5] 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.[6] 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.[7]

Upon examining both Hart and Fullers view on what the law is and how it relates to morality we find that Fuller’s naturalist ideals offer the most solutions to the problems in the modern day legal system. an example of this is where Hart says that we should identify what law is and what it should be, this still leaves the question, ‘why do we obey the law?’ Is it because of the sanctions behind it? or is it, because we accept it? As Hart believed. Would we refrain from committing rape if there was no punishment? Or Perhaps law is obeyed because it is the most convenient and just way of organising our societies? All these questions will have a different answer depending on one’s philosophical point of view. I on the other hand, believe that we may also obey law because we believe that it is right or morally correct. This last suggestion leads me to my next point. Are we obligated to obey the laws of a state if we deem the state immoral? examples of these states are: the apartheid laws of South Africa or the Nazi laws of Germany. These were all legitimate laws as they were passed by their relevant Parliaments. But did those laws have moral authority? To answer this question, we are going to focus the Nazi laws and applying the above views of Hart and Fuller so as to prove why I believe there is a link between law and morality.

A good example this point is that of the grudge informer case that was discussed in the Hart- Fuller Debate Published in the Harvard law review because it demonstrates the differing views of naturalism and positivism, particularly in the context of Nazi laws. Facts of the case are as follows:

 “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)”.[8]

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. I find this very disturbing for many reasons. 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. Without the courts applying a moral concept in the application of the law, the courts would have had to acquit the wife and agreed with Hart, a decision I feel would have been wrong.

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.[9] 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.[10]

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. A result I feel is unjust.

I agree with fuller and I think that hart is mistaken because Hart’s arguments fail in my opinion on the grounds that hart himself becomes inconsistent when he concedes to the fact that his rule of recognition requires a minimum morality of law. Impartiality in application of a rule is a moral standard which is necessary in any legal system.[11] Fuller believes that Hart is aware of the internal morality of law, but refers to it justice in the administration of laws. which in my opinion indicates that there is indeed a connection between law and morality. To Harts credit he tries to justify his position that morality is not always necessary in the application of the rule of law, Hart, presents us with a hypothetical illustration.

Supposing a law forbade the taking of a vehicle into a park, and is not specific as to which type of vehicle. An apparent meaning of the term ‘vehicle’ would imply that cars are prohibited from entering the park. However, in absence of any clear definition of the term vehicle, would toy cars or airplanes qualify as vehicles? And, would the rule of prohibition be equally applicable on them? Hart emphasises that interconnection between what the law is and what the law ought to be in the penumbra does not depict how the law actually functions at the core.[12] I find harts arguments here to be weak because I believe that language does not determine the core of legal rules. this is because it is not possible to determine what the wording of a statute in this case the term ‘vehicle’ without first looking at the purpose behind the rule. Fuller also argues that it is not possible to determine if a rule applies to a given situation, without understanding the purpose that the rule was supposed to serve by referring to the objectives of entire provisions of law rather than seeking to find meaning of individual words. He identifies the problem as one of interpretation of words and not an issue of core and penumbra as claimed by Hart. Fuller emphasises that fidelity to law can be only achieved if the law is in accordance with morals at all stages, be it at the time of making of the law or its application by the court. People will comply with the law only if they are convinced that the law is based on strong moral foundations enacted for their common good.[13] Fuller further criticises Hart’s definition of law which insists that law and morality needs to be separated. Fuller contends that there cannot be a specific definition of law. Likewise, even morality cannot be defined accurately. Therefore, Fuller argues that because there is no precise definition for law and morality, it is pointless to argue that both of them are separate.[14] and I believe that this offers a much more compelling argument than any of Harts positivist claims.

Onto my final point, the issue with principles of morality is that various societies will have different moral principles. So in pluralistic societies such as ours, there will be conflicting ideas of what is, or not moral. For example, in Muslim countries it is considered immoral for a woman to walk outside without a hijab, whereas in the west this is not considered immoral. There is also the issue that morals tend to change over time, so what was deemed immoral 50 years ago may no longer be immoral. An example of this same sex marriage, this was perceived as being so immoral that it was illegal. It wasn’t until the Marriage (Same Sex Couples) Act 2013[15] was passed by the UK Parliament that it became legal and somewhat morally acceptable in the UK. Personally, I disagree with same sex marriage, but it does aid my case that the law reflects what society deems as moral as such there is a connection between law and morality. In Forsythe v DPP and the AG of Jamaica the courts said “That a law is valuable not because it is ‘the law’ but because there is ‘right’ in it and laws should be like clothes; the Laws should be tailored to fit the people they are meant to serve.”[16]

In conclusion, I believe that there is a necessary connection between law and morality. Although some of the arguments by hart and the positivists is not without its merits but that is not sufficient to prove law and morality are not connected. Fullers arguments present the least amount issues on this topic therefore I believe law and morality are interdependent on each other.

Bibliography

Books

Lon Fuller, The Morality of Law (Yale University Press c 1964)

HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71(4) Harvard Law Review

Nigel Simmonds, Central Issues in Jurisprudence (4th edn, Sweet & Maxwell 2013).

Articles

Tommaso Pavone, „A Critical adjudication of the Fuller- Hart debate’, available at https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_review.pdf

Stephanie Patron,‟The Inner morality of law- An analysis of Lon L Fuller‟s Theory‟, [2014], Glassgow University Law Society Law Review, available at http://www.gulawreview.org/entries/legal-theory/the-%E2%80%98inner-morality-of- law%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theory

Benjamin C Zipursky, „Practical Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty‟, [2008] Vol 83, New York University Law Review available at http://www.nyulawreview.org/issues/volume-83-number-4/practical-positivism-versus-practical-perfectionism-hart-fuller-debate

Steven Shavell, „ Law versus morality as regulators of conduct‟, [2002] Vol 4, no. 2, American Journal and Economics review

Frederick Schauer , „A critical guide to vehicles in the park‟, [2008] Vol 83, New York University Law Review

Legislation

Marriage (Same Sex Couples) Act 2013

Cases

Forsythe v Director of Public Prosecutions and Attorney General (1997 34 J.L.R. 512)

---

[1] HLA Hart, The Concept of Law, Revised edition, Oxford University Press Publications, 2002 at p. 185-200

[2] ibid.

[3] HLA Hart, „Positivism and the separation of law and morals‟ [1958] Vol 71, no. 4, Harvard Law Review at p. 593- 629

[4] Lon Fuller, The Morality of Law (Yale University Press c 1964) 33 – 91

[5] ibid.

[6] Benjamin C Zipursky, „Practical Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty‟, [2008] Vol 83, New York University Law Review at p.1170- 1212


[7] supra note 4.

[8] Lon Fuller, The Morality of Law (Yale University Press c 1964) 245 – 255

[9] HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71(4) Harvard Law Review 619

[10] Stephanie Patron, “The Inner morality of law- An analysis of Lon L Fuller’s Theory‟, [2014], Glasgow University Law Society Law Review, available at http://www.gulawreview.org/entries/legal-theory/the-%E2%80%98inner- morality-of-law%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theory

[11] Steven Shavell, „ Law versus morality as regulators of conduct‟, [2002] Vol 4, no. 2, American Journal and Economics review at p. 227-257

[12] Frederick Schauer , „A critical guide to vehicles in the park‟, [2008] Vol 83, New York University Law Review at p. 1109- 1134

[13] Tommaso Pavone, „A Critical adjudication of the Fuller- Hart debate’, available at https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_review.pdf

[14] supra note 4.

[15] Marriage (Same Sex Couples) Act 2013

[16] Forsythe v DPP and the AG of Jamaica