Hart Fuller Debate - Jurisprudence Notes

Background Facts:

A woman in order to avenge her personal grudge against her husband informed of his disliking of Nazis to the Nazi authorities. After the Nazi government was overthrown the husband pressed a charge against his wife for illegally depriving him of his liberty. The wife defended her act on grounds of its legality as under Nazi rule passed by competent legislature and with her being an obligation to follow the law. Court held wife guilty and found that the statute under which husband was found guilty was contrary to the sound conscience and sense of justice of all decent human beings.

Hart’s Position

·         Hart being a positivist criticized the judgment for disregarding the written law.

·         Hart argued that the law remains law even if it does not meet the demands of external moral criteria.

·         Hart said ‘Law is not morality; do not let it supplant morality’.

·         Hart said that a law being inherently evil and how one ought to react to the law are two separate issues and merely because a law‘s foundation is on evil it cannot be said to be law.

·         Hart also stated that if wicked/immoral laws are considered valid that does not create any problem when a choice between two evils has to be made in extreme circumstances.

·         Hart said that a legal system might show some conformity with justice or morality but does that does not follow that a rule of recognition a criterion of legal validity ought to include morality in it.

·         Law and morality are not interchangeable terms and law cannot be strike down merely if it’s devoid of any moral content.

Fuller’s Position

·         Fuller stated that law must possess certain characteristics if it is to be classified correctly as ‘law’ and one of most important of such characteristic is ‘inner morality’.

·         For Fuller if law contains no morality it is not law.

·         He also criticized Hart for ignoring the inherent inability of Nazis to be considered as a legal system.

·         He then criticizes positivism itself and states that the fundamental positivism that law must be separate from morality. He considers this postulate incorrect as it denies the possibility of any bridge between the obligation to obey law and other moral obligations.

·         Fuller considered law to be a collaborative effort to aid in the satisfying of mankind’s common needs with each rule of law having a purpose related to the realisation of a value of the legal order.

·         Since, purpose and values are closely related a purpose may be considered as a fact and a standard for judging facts and thereby, removing the dualism between ‘is’ and ‘ought’.

·         Fuller considered that any regime that assists in the spread of, injustice has forfeited its right to expect allegiance from its citizens.