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  • Noaman Atique

Navigating the Relationship between Law and Morality with special reference to Hart-Fuller debate

Written by: Noaman Atique, B.A.LL.B (Hons.), 3rd Year, Faculty of Law, Aligarh Muslim University, Aligarh

  

1.    Introduction

Defining law and morality can be challenging, as they encompass complex concepts. Laws pertain to legal obligations and rights safeguarded and enforced by the government, with disobedience leading to punishment. Morality, on the other hand, evaluates human conduct as either virtuous or objectionable based on moral duties and responsibilities. Not adhering to moral standards doesn't typically result in legal consequences.

Various legal scholars hold differing perspectives on the relationship between law and morality. According to the natural law theory, any law that egregiously violates moral standards is not truly a law. This implies a close connection between law and morality, as the concept of "natural law" suggests that human morality arises from nature and manifests as societal rules and regulations. Notable proponents of the natural law theory include Augustine, Aquinas, and Lon L. Fuller. Conversely, analytical jurists such as Bentham and Austin reject any inherent connection between law and morality. Philosophical school jurists, however, staunchly advocate for morality's significance. Modern natural law philosophers like Fuller stress the importance of "reason" in legal education and argue that law and morality are inherently intertwined.

2.    Philosophical School

According to proponents of this school of thought, legal philosophy should be grounded in ethical principles to inspire individuals toward moral living. Ethics, as a discipline, focuses on moral principles that shape human behaviour, allowing individuals to discern between right and wrong and to respect the rights of others, thereby fostering social cohesion. Within this framework, justice is seen as having a philosophical or ethical essence, and law and justice are intimately linked concepts. Law serves as a tool to achieve justice's objectives, functioning as a means rather than an end in itself. Thus, law is perceived as a vehicle for realizing justice's aims. In this manner, philosophical jurisprudence serves as a common ground for moral and legal philosophy, as well as for ethics and jurisprudence.

2.1   Immanuel Kant

Kant was a hardcore believer of morality, Kant pointed out that law to be acceptable to people in general should have within it an element of justness. According to him, legislation could be effective only when it represents the united will of the people. However, the Kant was criticised on the ground that morality might differ from person to person. Answering to this criticism, Kant says, the general morality will be same, the universal morality by which humans are bound.

In his “Critique of Pure Reason” he gave the concept of “Generality of Actions.” According to his theory, there exists one primary moral duty known as the categorical imperative, which stems from the notion of duty itself. He argued that categorical imperatives are inherently good principles that must be followed universally, without exception, serving as the foundation for all moral obligations.[1] Kant also proposed that the concepts of means and ends can be applied to categorical imperatives, allowing rational beings to pursue specific goals using appropriate methods. Consequently, a categorical imperative represents an obligation that must be obeyed irrespective of personal will or preference. Kant distinguished between morality and legality based on the actor's different approaches to their duties.

3.    The Relationship between Law and Morality

The relationship between law and morality has become a central focus in contemporary jurisprudential discourse. Positivists, following H.L.A. Hart, maintain that labelling a statute or judicial ruling as "law" doesn't necessarily imply moral endorsement. They argue that laws can be valid even if they are morally objectionable or unjust. Conversely, opponents of this perspective, such as Lon Fuller, contend that moral acceptability is a prerequisite for considering a statute as law. Alternatively, scholars like Ronald Dworkin assert that moral principles complement valid enactments as integral elements of the law.

The relationship between law and morality is often subject to change as societal values and attitudes shift over time, rather than remaining consistently clear or static. There are various points of intersection between law and morality:

·         Legal regulations often stem from moral principles, with societies establishing laws that reflect their ethical beliefs. For instance, laws against murder and theft are grounded in moral convictions regarding the value of human life and the importance of respecting property rights.

·         Moral considerations can impact legal interpretations and rulings. Judges and legal professionals may draw on moral values when addressing issues not explicitly covered by existing laws or when existing laws yield perceived injustices.

·         Legal frameworks can serve as agents for moral progress in society. Reforms may be enacted to advance more progressive or equitable moral values, such as the legalization of same-sex marriage or the decriminalization of homosexuality in many nations.

·         Moral shifts within society can prompt legal reforms. As societal attitudes about moral values evolve, there may be calls for corresponding changes in the legal system, as seen in movements advocating for environmental conservation, gender equality, or revisions to drug policies.

 

4.    Hart-Fuller Debate

The Hart-Fuller debate stands out as a significant academic discourse in jurisprudence, highlighting the contrasting perspectives between positivist and natural law philosophies concerning the relationship of morality to law. Hart asserted that law and morality are distinct entities, capable of being considered independently of each other. In contrast, Fuller contended that law and morality are intricately linked, with the legitimacy of law stemming from its alignment with moral principles.

The Hart-Fuller debate showcases the conflicting perspectives of positivism and natural law, particularly concerning the interpretation of Nazi laws. Hart presented his views in the Holmes Lecture at Harvard Law School in April 1957, titled "Positivism and the Separation of Law and Morals"[2] which was subsequently published in The Harvard Law Review in 1958. Fuller responded to Hart's arguments with his own article titled "Positivism and Fidelity to Law: A reply to Prof. Hart,"[3] also published in The Harvard Law Review in 1958. This marked the initiation of their renowned debate.

The Hart-Fuller debate stemmed from ideological disparities. Positivism contends that for a law to be valid, it only needs to have been enacted by a competent legislator following the appropriate procedure. Conversely, natural law theory asserts that certain fundamental principles or values must be reflected in the law for it to be considered legitimate.

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

 

4.1   Grudge Informer Case

 "In 1944, defendant, desiring to get rid of her husband, reported to the authorities derogatory remarks he has made about Hitler while home on leave from the German army. Defendant wife having testified against him, the husband was sentenced to death by a military tribunal apparently pursuant to statutes making it illegal to assert or repeat any statements inimical to the welfare of the Third Reich. . . . However, after serving some time in prison, the husband was sent to the front. Following the defeat of the Nazi regime, the wife, as well as the judge who had sentenced her husband, was indicted under § 289 of the German Criminal Court, 1871, for the “Unlawful deprivation of another’s liberty” ('rechtswidrige Freiheitsberaubung'). On appeal to a “German Court of last resort in Criminal cases,” held, that the sentencing judge should be acquitted, but that the wife is guilty since she utilised out of free choice a Nazi 'law' which is contrary 'to the sound conscience and sense of justice of all decent human beings' about the death or imprisonment of her husband.

                                                                      — Harvard Law Review, 1951, pp. 1005–7

 

Hart: Hart argued that the decision given by the Court was wrong, because no matter how hideous and monstrous the Nazi laws were, they were in accordance with the Enabling Act passed by the Reichstag, and were valid laws. It satisfied Hart’s rule of recognition. 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 legislation repealing the statute under which she claimed protection, and declaring the acts of the perpetrators of such atrocities as criminal, and both are equally evil according to Hart.[4]

Fuller: Fuller embraced the Court's decision as it fosters reverence for both legal principles and morality by deeming unlawful laws as illegitimate, thereby upholding fidelity to the legal system. Fuller asserted that all laws enacted by the Nazi regime were essentially invalid. He argued that the Nazi regime's profound disregard for morality rendered its legal system devoid of any elements qualifying as genuine laws. According to Fuller, the Nazi laws lacked the inherent moral integrity essential in the legislative process, which lends laws their legitimacy and compels obedience.

Hart: Hart has been criticized on the ground that he himself becomes inconsistent when he concedes to a minimum content of natural law. Impartiality in application of a rule is a moral standard which is necessary in any legal system. In order to justify his arguments that morality is not always necessary or relevant when it comes to application of rule of law, he presented the philosophy of Core and Penumbra.[5] By Core he means the legal rules which have settled meaning which are predefined, ascertained and positive. However, the problem in interpreting the core which at all time couldn’t serve the purpose of law, which can be solved by penumbra. Penumbra, the space where there is a chance of judicial interpretation, morals can be of an influential factor in deciding cases in penumbra.

Fuller: Fuller critiques Hart's notion that law must be distinct from morality, arguing against the notion of a rigid definition for both law and morality. He maintains that attempting to precisely define law or morality is inherently futile.[6] Consequently, Fuller asserts that since there is no precise definition for either law or morality, it is fruitless to argue for their complete separation.

5.    Conclusion

Hart held the belief that a legal system and moral principles are not inherently connected, suggesting that a legal system can function independently of moral considerations. In contrast, Fuller argued that law and morality are inseparable, advocating for their intrinsic connection. Despite their differing perspectives, both Hart and Fuller staunchly defended their respective ideologies. However, they found common ground in acknowledging that an unjust and immoral legal system is unsustainable and unlikely to endure over time.

In conclusion, Professor Fuller's perspective gains more significance when he critiques the rigidly positivist approach, particularly in light of the atrocities perpetrated during the Nazi regime. Even Hart acknowledges the role of morality, conceding that his rule of recognition must adhere to minimal moral standards. Both law and morality share common elements, as they prescribe desirable behaviour expected from individuals. I believe that for law to gain acceptance among the populace, it must align with the behavioural standards desired by people, which are largely dictated by morals. Moreover, it is practically unfeasible to separate law from morality. The concept of morality evolves as society progresses, further emphasizing the intertwined nature of law and morals.

 Conclusion

[1] N. V Paranjape, Studies in jurisprudence & Legal Theory, 77 (Central Law Agency, Allahabad, 10th edn. 2023).

[2] H.L.A. Hart, “Positivism and the Separation of Law and Morals”, HLR71(4), 613-619 (1958).

[3] Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart”, HLR 71(4) 630–672 (1958).  

[4] Sonali Banerji, “The relevance of Hart & Fuller debate relating to Law and Morality: A critical analysis” 4 IJLLJS 129 (2015).

[5] H.L.A. Hart, “Positivism and the Separation of Law and Morals”, HLR71(4), 613-619 (1958).

 

[6] Lon L. Fuller, The Morality of Law, (New Heaven & London, Yale University Press, Rev. Ed., 1969).

 

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