Herbert Lionel Adolphus Hart was a British jurist who worked as Professor at Oxford

University. He upheld the positivist school of jurisprudence. His course of action for the debate
on the separation of law and morality was provoked by the aftermath of Nazis legal system after
the World War II ended.
Lon Luvois Fuller on the other hand, was an English jurist who also worked as a
Professor in Oxford. Fuller defends the natural law principles of jurisprudence. The debate
between these two famous jurists was published in the Harvard Law Review 1958 on law and
morality which signifies the differences between the positivist and natural law theory. For Hart,
he believed that morality and law were separate. Fullers reply contended that morality is the
source of laws binding power.
The Hart Fuller debate is in essence, concerning whether or not there should be
separation between law and morality, which is also the central key to the fundamental
philosophy of the natural law school and the positivist school. Hart took the positivist view in
arguing that morality and law were separate. He insisted that the law is the law even though it
may not satisfy the demands of morality. Fuller's reply argued for morality as the source of law's
binding power. He was of the opinion that law and morality must not be separated and that any
law which is totally divorced from morality ceases to be law.1
The occasion of the Hart Fuller debate began in the late 1950s following the end of the
2nd world war due to their reaction to certain events in Germany at that time. The discussion
between Hart and Fuller focused on the conflicts faced by the German jurist after the war. A well
illustrated case which may be called the Grudge Informer depicts the 1958 debate. 2 In the year
of 1944, a German army returned home for a short visit. The wife was present at the time where
the husband criticized the Hitler government and Nazi regime. He also expressed his dismay on a
failed attempt of a man to assassinate Hitler. During the husbands long absence the wife was
with other man in her life. She was keen to get rid of the husband.
Hence, after the husband departure to war the wife denounced him to the local leader of
Nazis regime. The husband was caught and tried by the military tribunal and sentenced to death.
1

HLA Hart, (1958) Positivism and the Separation of Law and Morals, Harvard Law Review.
SUDDEUTSCHE JURISTEN-ZEITUNG [SJZ] 105, 105-08 (1946) (Ger.), translated in 26 OXFORD J.
LEGAL STUD. 1, 7 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 2006)
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He was however, not executed. After a short period of imprisonment he was sent to the eastern
front where majority were killed. The husband survived the war and initiated an action against
the wife for illegally depriving his freedom.
The wife, in her defence, claimed that since the husbands conduct had contravened to the
Nazis law prohibiting the making of statements which is detrimental to the government at that
time, she was required to provide such information to the authorities.
The court of appeal however was not in favour of the wife by declaring that the Nazis
statute, being contrary to the sound conscience and sense of justice of all decent human beings,
did not have legality and for that reason she could not be given protection under such statute.
This reason became precedent in many other informers case which denoted the superiority of
natural law over positivism.
Hart believes the court was wrong in their decision as he says that the separation of laws
from morals lies a moral as well as intellectual value, which makes a law stronger. Professor
Fuller, on the other hand says that law cannot be built on law. He observes;
In the life of a nation these external and internal moralities of law reciprocally influence
one another; a deterioration of the one will almost inevitably produce a deterioration in the
other.3
In The Morality of Law and elsewhere Fuller argues that the positivist vision of law as
merely the system of rules created by an all-powerful sovereign or state flat is misleading;
instead, law should be seen as a "purposeful enterprise" which can only operate on the basis of
reciprocal expectations on the part of the government and ordinary citizens. Citizens will only
engage and abide by the activities and dispositions necessary for a legal order to exist if the lawgiver abides by certain moral principles.4
These moral principles can be divided into external and internal morality. He further
explains his 8 desiderata, or things which will constitute a valid law. This includes; Generality,

Hari Chand (1994). Modern Jurisprudence, International Law Book Services, Kuala Lumpur
Lacey, Nicola (2008). Philosophy, Political Morality, and History: Explaining the Enduring Resonance of the HartFuller Debate, NYU Law Review, pp 1059 to 1087
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Promulgation, Prospectivity, Inelligibility, Non-contradiction, Possibility of obedience,

consistency through time, and Congruence between official action and declared rules.
Professor Hart stated that these desiderata are unfortunately incompatible with very
great inequity. Hart says that Fuller has confused efficacy with morality because Herods order
for the massacre of innocents satisfied all the conditions of the 8 deciderata, as did the Nazi
Laws.5 Instead, Hart introduced his 5 basic truisms which are human vulnerability, approximate
equality, limited altruism, limited resources, limited understanding and strength of will that must
be considered in making a valid law.6
In application, the belief that law should reflect morality has spurned some interesting
cases. In the case of Shaw v DPP7, for example, the House of Lords upheld a conviction of the
offence of a conspiracy to corrupt the publics morals when the defendant published a book
publicizing the names and special features of prostitutes. The Court found that a fundamental
purpose of the law was to conserve not only the safety and order but also the moral welfare of
the State. Similarly, in R v Gibson8, a conviction was obtained for the common law offence of
outraging the public decency when the defendant artist exhibited earrings made from freezedried foetuses even though there was no law at that time disallowing such a business.9
In conclusion, the basis of Hart-Fullers argument is that to Hart, a legal system which is
to command the fidelity of reasonable man must consist of the inner morality of the law in which
he extracts the 8 desiderata. Hart, rejects Fullers view that the 8 desiderata can be used to
determine the validity of law and insists law is still the law even though it may not satisfy the
demands of morality. In his view, there is no exact link between law and morality but there is a
minimal content of law that must be taken into consideration which he terms as the 5 truisms.
Thus, it can be said that both jurists agree that laws need certain requirements to be valid
ie; for Fuller, the 8 desiderata, and for Hart, the 5 truisms. Hart, does not completely reject the

Note 5 at 2
Haswira Nor Mohamad Hashim et al, (2009). Law, Morality, Justice, Freedom and Equality: The Underlying
Concepts, McGraw Hill.
7
[1962] AC 220; [1961] 2, All ER 446, HL
8
[1991] 1 All ER 439 CA
9
nd
Antione, Rose (2008) Commonwealth Caribbean Law and Legal Systems 2 Ed, Routledge.
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need for morality in law but he believes morals can be the guideline in situations whereby there
is no rule of law established.

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