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Relationship between law and morality: Hart-Fuller debate

Introduction


It has been a topic of debate and research among scholars whether the law has a relationship with morality or not. If not then why or if it is then to what extent it has a relationship? To find out the answers to such questions, there have been various research works and so many debates have been conducted throughout history but two different kinds of opinions are still in existence. Some say that law and morality have no relationship. Both are separate from each other. While some say that they have complementary relationships. In other words, different legal thinkers have interpreted the relationship between law and morality in different ways.


I will try my best to explain the real position of both in the light of Hart and Fuller's long debate on the relationship between law and morality.

For positivists-like Hart- law is simply ‘what is’ which means the area of their study is only ' what is law?” and morality is ‘what ought to be’. And law fundamentally is the separation of ‘what is’ and ‘what ought to be'. It means there is no connection between law and morality and they are not interdependent on each other.


On the other hand natural law philosophers – Fuller is one of them- reject the law that is not moral. According to them, the law is something that is placed beyond the legal system that is morality. So there is a necessary connection between law and morality and without morality, no law can serve the purpose of society.


The main points of debate between legal positivism and natural law theorists are the unjust laws implemented during the Holocaust. This was the incident that forced thinkers and philosophers to have a fresh look at the relationship between law and morality.


Hart and Fuller long debate


Hart published a paper in Harvard law journal in 1958 titled “positivism and the separation of law and morals”[1] where he tried to demarcate a boundary line between law and morality. Later on, Fuller also published a paper in the same journal titled “positivist and fidelity to law” that was a reply to professor Hart, where he indicated why and how there is a necessary connection between law and morality.


The debate has now been started between these two eminent scholars. Both of them began to justify their position through various interpretations. And then Hart published a book named “concept of law”.[2] Fuller also wrote a book titled “the morality of law.

Natural law philosophers have criticized legal positivists on certain points that are given below.


Three critics by natural law theorists


  • Command theory of law by Austin

Command theory of law talks about that “law is the command of sovereign backed by sanctions”. It means something can be regarded as law when it fulfills the following elements. There should be (1) a command (2) given by the authority. Now there is (3) obedience, that is the people should follow that law if they wish not to get punished. And if they don’t follow such law then they will be punished.


Natural law theorists say that Austin’s command theory of law is completely inadequate. Because there is no place for morality in it, there is only fear for people, and in that fear, they follow the law. They never willingly follow such laws.[3]


As per Austin’s theory, customary law can’t be treated as law because there is no command in it. People follow customary law not because of fear of authority but because of their wishes.


It should be kept in mind that there are numerous family and other laws where command and punishment have nothing to do.


Further, there’s no connection between crime and punishment. That means through punishment, crime can not be controlled. If it would be so then in every 15 minutes a case of rape could not happen in India while many have been punished for the same.


Another thing is that the law is to control the external behavior of man but what about controlling the internal behavior of a man? What will control internal behavior? If the internal behavior of a man cannot be controlled by existing law then the law will not work effectively in society because it is known to all that internal factors push a man to take any action or step.

These are some undeniable facts but there is no focus from legal positivists on these aspects, the whole focus is to control only the external behavior of man.


  • Problem of Penumbra

Penumbra is occasionally used to determine the meaning of words within the law. When established meaning seems obsolete, then judges interpret particular terms according to their understanding. This clearly shows that even Judges decide ‘what is’ by ‘what ought to be’.

For instance, suppose the law is “vehicles are not permitted in a park”. Now the question is should a bicycle then not be permitted in a park?


What does vehicle mean? This is not clear by what law is then ultimately we look into what ought to be by vehicle. In such a situation, judges try to understand the real sense of that term and finally interpret that according to the circumstances.


Professor Hart replied that this problem ‘what ought to be’ is easily solved not in a moral sense but in a rational-legal framework. It is not outside the law but it is internally consistent with the law.[4]

Penumbra is still a principal problem of debate related to what is and what ought to be by law


  • The third challenge is related to morally bad laws


This is connected to German and Nazi regimes where at a mass level morally bad laws have been implemented that ultimately led to human exploitation at a large level.

Natural law theorists say legal positivists that you have to have higher principles behind the legal system otherwise you are not condemning the Nazi regime which has committed so many crimes against humanity.

Professor Hart defends the minimum content theory of natural law.[5] In other words, to overcome the problem of morally bad law Hart will allow a certain influence of morality within the legal system that is the only absolute minimum. It also means only so much infiltration is allowed as is necessary to maintain the internal consistency of the legal system.

Under positivism, there are two categories that are as follows.


1. Inclusionary positivism


Allows inclusion of a certain amount of morality into the legal system.


2. Exclusionary positivism


Allows no moral consideration in the system of law. Hart is by side of inclusionary and allows some sort of inclusion of morality.


Fuller says it is unclear for Hart who is in a position to include a certain amount of morality, what is the ground to include that amount of morality?

Professor Hart says ‘what ought to be’ if it is understood from natural law position then it is an attempt to preserve “a precious moral principle”. Fuller replies it as “fidelity to law” and he also believes that Hart accepts it but denies its logical implications.


The doctrine of fidelity to law


This makes the law internally consistent. It does not come out of the law itself; it is something you appeal to that.


The very notion of fidelity to law is beyond the law. It is something necessary that the legal system should have fidelity in it. But Fuller says that legal positivism denies it.[6]


According to Fuller, there are two kinds of morality

  1. Internal morality

  2. External morality

External morality is a kind of suggestion that people should follow. There may be many factors to push people to follow that external morality.


So it is clear that everything that is moral is not legislated and everything that appears in law has nothing to do with morality. Fuller believes that Hart is too aware of “internal morality” but he vehemently calls it “justice in the administration of the law”.


Legal positivists also have some sort of internal morality in the legal system in the form of natural justice. Positivists accept principles of natural justice.


1. No one can be a judge in his one matter otherwise it violates natural justice principles.

2. Both parties must be heard then Justice has been done.


These inclusive principles have been added into the legal system that’s why Fuller says this is the backdoor entry of morality into legal positivism.


Relationship of law and morality in terms of bad law


The Informer case


A good example of 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. The 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 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.


Whether she should be punished while she was obedient to the law of time? What legal positivism says?


Natural law philosopher says that the law was unjust and against humanity so she should not report about the criticism done by her husband.


Verdict


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 statute under which she claimed protection was “contrary to sound conscience and all sense of justice for any decent human being”. She could not be given protection under a previously existent statute.[7] This seems to show the victory of natural law against legal positivism.


Hart classified rules into two categories:

  • Primary rules i.e. (Austinian sense)

Primary rules art duty imposing rules on the citizens and have a legal sanction

  • Secondary rules that include

  1. Rules of recognition.

  2. Rules of change.

  3. Rules of adjudication.

Secondary rules are power conferring laws that describe how laws should be recognized, adjudicated, or changed.


Laws came after the Second World War and others clearly favor natural law theory.


Fuller’s eight principles


For Fuller, eight particular principles make up an inner morality of law and help to describe a procedural version of natural law. Law must be

  • Existent not ad hoc. The law should already be there,

  • Promulgated,

Because on one hand, we say that ignorance of law has no excuse but that can only be true if a law widely be promulgated. How can a person be put behind bars if he has no idea about a particular law?

  • Prospective rather than retrospective

That means the law should have come into force from that day when it came into effect not 30 years before and people who have committed a crime long before that law would be punished. That does not make any sense so the law must be prospective.

  • Clearly stated and comprehensive

  • Its various aspects must be consistent with each other.

  • Possible to be obeyed

If it is not even possible to obey the law then how can one be accused for violation.

  • Constant or relatively long lasting

It should not be just for a brief period and should be somehow long lasting. This makes it difficult for people to abide by.

  • Applied and administered as stated.[8]

These principles seem to be acceptable at prima facie.Obviously for a law to be valid must be possible to be obeyed. The law must be implemented in a way as it is meant. Obviously, the law should be prospective and not retrospective. These are standard ways to understand the procedure of law.


Fuller's argument is that these all are based on an internal moral sense.[9] It is morally wrong to condemn people unheard. It is morally wrong to accept people to follow laws that cannot be possible to follow. It is morally wrong to apply law in different ways from as it was originally made. It is morally wrong to punish a person who has no idea since it has promulgated.


Conclusion


For Fuller law must serve the purpose which is to achieve social order by subjecting conduct to moral rules. Failure to comply with the principles would not make certain laws invalid.


The minimum content of morality in law is a sort of common meeting ground or a place of unity in this long debate.


Thus, in terms of contents, morality is intrinsically related to law in specified areas and can be a controlling factor in certain situations. Law and morality are two elements that control and regulate external and internal behaviors in a human community so as to allow harmonious and effective inter-subjectivity in the society. Both notions have their common foundation and function. They have a complementary relationship. Law compensates for the functional weaknesses of morality and morality tempers the mechanical implementation of positive law through the notions of solidarity and responsibility.


References

[1] Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71: 593–629. [2] HLA Hart, The Concept of Law, Revised Edition, Oxford University Press Publications, 2002 at p. 185-200 [3] Lon Fuller, The Morality of Law (Yale University Press c 1964) 33 – 91 [4] Hart, H. L. A. 1965. “Review of Lon Fuller’s The Morality of Law.” Harvard Law Review 78: 1281–1296. [5] Steven Shavell, „ Law versus morality as regulators of conduct‟, [2002] Vol 4, no. 2, American Journal and Economics review at p. 227-257 [6] Fuller, Lon L. 1958. “Positivism and Fidelity to Law—A Reply to Professor Hart.” Harvard Law Review 71: 630–672. [7] Lon Fuller, The Morality of Law (Yale University Press c 1964) 245 – 255 [8] Luban, David. 2010. “The Rule of Law and Human Dignity: Reexamining Fuller’s Cannons.” Hague Journal on the Rule of Law 2: 29–47 [9] Murphy, Colleen. 2005. “Lon Fuller and the Moral Value of the Rule of Law.” Law and Philosophy 24: 239–262.

This article is written by Yaqoob Murtaza, a student of the Faculty of Law, Aligarh Muslim University Centre Malappuram.

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