MORALITY AND LAW: HART AND FULLER DEBATE

INTRODUCTION

The Hart-Fuller dispute in jurisprudence is one of the most fascinating scholarly discussions of all time. It exemplifies the gap between positivist and naturalistic legal theory in terms of the importance of morality in the law. Hart contended that law and morality are distinct from one another and are mutually exclusive. Fuller believed that there is a strong link between law and morality, and that law’s authority stems from its conformity with morality. The purpose of the law is to maintain law and order in society. The prima facia question is whether the law should operate strictly on statutes or it should have n essence of morality and ethics. Laws work with the state’s nature of safeguarding and enforcement of legal rights and obligations. These laws are sanctioned, which leads to the that if anyone fails to follow the laws of the state is penalised. Morality classifies human conduct as good or evil Human conduct is described as either good or evil by morality. One is not liable to be held legally accountable if he does not follow the established moral principles. We are intrigued by questions such as Should morality be enforced by law? , If laws did not reflect moral principles, would they be still binding? And Is disobedience of bad laws morally justified? With reference, to one of the prominent discourses between Professor Hart and Professor Fuller on the point that is it necessary to have an ethical or moral standard in applying the law.

ISSUE

Prof. HLA Hart, a legal positivist, believes that the law doesn’t need to meet specific moral standards. Hart acknowledges the concrete relationship that is present between morality and law but The existence of a legal system is not contingent on whether or not the law adheres to a series of minimal ethical criteria. This is not necessary for a legal structure to adhere to morals in a certain way. Based on ethical critiques, laws do not just vanish. Hart said the substance of the law consists of two types of rules: primary and secondary rules.[1] The heart of the legal system is made up of primary and secondary regulations. The principle of justice, often known as the rule of recognition, is the overarching principle that holds the entire legal system together. The problem of penumbra[2] refers to the attempt to determine meaning, where the law is ambiguous. Hart identifies the issue that may arise as a result of an absence of accuracy in the terms employed in the language of legislation, which he refers to as the law’s core. Not every situation will fall squarely inside this scope of the legislation. It is important to state the significance of phrases in a statute before the application of legal rules to the facts of the case. He feels that the issue of penumbra can be easily resolved through legal interpretation. Another criticism is that it is ethically reprehensible-permitting morals to have some impact on the law. However, this power is only exercised to the amount necessary to guarantee legal coherence.[3] Professor Fuller explains the law as a method of attaining social order by implementing principles to the behaviour of humans. According to Fuller, our legal procedures are based on just principles that include an ethical component. The methods embedded in a legal system are ethically significant in assessing whether a set of laws qualifies as a law system or not. He argues that legislation must pass a moral functional test before it can be termed a law in the genuine sense. If a regulation or collection of rules does not fulfil this purpose, it is not considered a law. He conceptualised “Morality of aspiration” and “morality of duty”.[4]Fuller contradicts the positivist view of the law. He desires that law-makers should recognise other alternative paths for the attainment of society’s aim than just relying on the law. He contends that if lawmakers acknowledge this point of view, there are likely chances to effectively employ law as a mechanism to govern our society. According to Fuller, not every mandate with the capacity to enforce compliance can be recognised as law. He gave eight conditions and explains that a concept ought to be evaluated against these pre-defined requirements to be recognised as law.

The debate between Prof. Hart and  Prof. Fuller – The debate between Hart and Fuller proceeded with a case, where a German woman reported her spouse to the Gestapo for opposing the war strategy of Hitler. The husband was found guilty and sentenced to death, which later was commuted to military service. The husband endured the battle and began legal actions against the wife thereafter. In her defence, the wife claimed that she had reported her husband because he had committed an offence under a Nazi statute from 1934. The Enabling Act of July 12, 1934, enacted by the German Reichstag, established the underlying premise of Nazi legislation by amending the German Constitution to allow Hitler to issue decrees that were contradictory to it. It declared that Hitler’s laws and will were the same. The German courts faced serious conflict to either decide to obey the law or to obey the ethical duty to perform what people thought was correct. There was an emergent need to re-establish the prestige and authority of laws and justice. They agreed that declaring all regime’s laws under Nazi rule, and citizens’ activities following those laws, illegal would result in utter social disintegration. However, they believed that some of the Nazi mechanisms of regulations were so condemning to human values that it was evident to discard activities conducted through such laws to persuade the citizens that the new regime is against such warped laws. As a result, the Court declared the wife guilty for doing contrary to the clear conscience and “sense of justice” that is present in ordinary human beings.[5]

Hart discarded the judgement of the German court stating as the Nazi laws were actual laws since they were established under the Reichstag’s Enabling Act, no matter how terrible and horrific they were. The recognition rule of Hart was followed. According to Professor Hart, there were only two choices left with the judges either to maintain the credibility of the legal decisions: let the wife go free because the legislation shielded her, or enforce retrospective legislation repealing the law within which she claimed protection. Hart critiqued the Supreme Court for using the idea of morality to decide that the conduct of the wife was immoral.[6] Fuller accepted the Court’s decision because it fosters regard for both morality and law by making illegal laws illegal and therefore obtaining a high level of adherence to the law. According to Fuller, all laws made during the Nazis’ regime were non-laws. He claimed that the Nazi dictatorship was so anti-moral that there was nothing concrete in the institution that could be classified as a law.[7] He claimed that the Nazi laws lacked the inherent sensibility and morality essential in the legislative procedure, which gives it authority, making them mandatory to follow. Fuller contended that until Nazi laws were recognised as non-laws, perpetrators of Nazi-era atrocities would go unpunished.[8]

CONCLUSION

From the debates and analysing of the point of contention produced by Harter and Fuller, judgements and laws put a balance between law and morals. We have a rule of law for the major issues and conflicts courts face, but it’s impossible to put every clause and situation for every issue in the statute, hence then the discretion of judges comes into the frame where ethics play a vital role to impart justice. It is considered that if legislation is to be embraced by the public, it must comply with the desired behaviour pattern. Morals play a crucial role in determining these norms. The writ of habeas corpus and what Fuller has written about procedural natural law share a lot of similarities. Similarly, the United States Supreme Court’s conception of the procedural mandates of the due process clause 16 is founded on Fuller’s conception of law and morality[9]. The judiciary’s progressive decisions, which recognise the concepts of live-in relationships and consensual sex among adults of the same sexes, demonstrate how the courts have interpreted the law in light of evolving societal values in our society. The recent debate upon Marital rape and how it destabilises the morals and dignity of women is taken into the course by the courts. Courts have started taking into consideration the purpose of laws framed and in what context it is formed. Another aspect is that morals are subjective and change from time to time and are affected by various paradigms but rule of law, especially in India which is codified and written, defines credibility and strong importance. Hence, rule of law is supreme but with societies changing at a fast pace, the goal of law that maintains order in the behaviour of human beings should be accomplished.

Author(s) Name: Smriti Yadav (Maharashtra national law university, Nagpur)

References:

[1] H.L.A. Hart on Legal and Moral Obligation. (1974). Michigan Law Review, 73(2), 443–458. https://doi.org/10.2307/1287782, accessed on March 20, 2022.

[2] Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), 593–629. https://doi.org/10.2307/1338225, accessed on March 21, 2022

[3] Hart, H. L. A. (1958). Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), 593–629. https://doi.org/10.2307/1338225, accessed on March 21, 2022

[4] Fuller, L.L. (1958). Positivism and Fidelity to Law: A Reply to Professor Hart. Harvard Law Review, 71(4), 630–672. https://doi.org/10.2307/1338226, accessed on March 22,2022

[5] H.L.A. HART, The concept of law, 3rd edition ,Oxford University press- 2012, accessed on April 8, 2022

[6] Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), pg-613-619 https://doi.org/10.2307/1338225, accessed on March 25, 2022

[7] Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), pg-613-619 https://doi.org/10.2307/1338225, accessed on March 26, 2022

[8] Fuller, L.L. (1958). Positivism and Fidelity to Law: A Reply to Professor Hart. Harvard Law Review, 71(4), 630–672. https://doi.org/10.2307/1338226, accessed on March,22 2022

[9] Fourteenth Amendment | Browse | Constitution Annotated | Congress.gov | Library of Congress. (z.d.). https://constitution.congress.gov/browse/amendment14/#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws. ( Accessed on March 10.2022)

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