You are on page 1of 18

JURISPRUDENCE

A PROJECT REPORT ON

HART FULLER DEBATE

Submitted by:
Sameer Gosain(02516503812)
Section - B
Semester - V

Contents
INTRODUCTION ........................................................................................................
................................ 3
HISTORY ...................................................................................................................
.................................. 4
PROF HARTS VIEWS
...............................................................................................................................
5
Prof Fullers Criticism
.................................................................................................................................
.7
The Definition of Law
.............................................................................................................................
.8
The Definition of Morality
........................................................................................................................ 8
The Moral Foundations of a Legal Order
................................................................................................ 8
The Morality of Law Itself
....................................................................................................................... 8
The Problem of Restoring Respect for Law and Justice after the Collapse of a Regime That
..................... 9
Respected Neither
.................................................................................................................................
........ 9
The Moral Implications of Legal Positivism
............................................................................................. 10
The Problem of Interpretation-The Core and the Penumbra
....................................................................... 10
The Moral and Emotional Foundations of Positivism
................................................................................ 11
Two Recent Decisions of Indian Courts Demonstrating Influence of Changing Morality
......................... 11
CONCLUSION ............................................................................................................
............................... 13
BIBLIOGRAPHY: ........................................................................................................
.............................. 14

1|Page

Cases
D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469
............................................................................... 10
Naz Foundation v Government of NCT of Delhi, 2009 (160) DLT 27
....................................................... 10

2|Page

INTRODUCTION
Law brings with itself a few impressions of public morality; however can law be divided
from morality? This inquiry is of a well-known nature in the study of Law. Such level
headed discussions were regular much before Prof Hart and Prof Fuller set forward their
perspective on the subject and is likely to continue between the two schools of thought,
one supporting it and other contradicting it. The side supporting it is basically are the
English jurists and the side restricting it are basically the American jurists. Such
distinction is not generally clear on the grounds that Sir William Blackstone, English
jurists backed the Natural Law Theory. So also Justice Oliver Wendell Holmes an
American Jurist contradicted the doctrine of Natural Law. Hart was an English jurist who
worked as Professor at Oxford. He safeguards positivist school of law. This round of
level headed discussion on partition of law and ethics was begun by Prof Hart.

Lon Fuller was an American jurist and worked as a teacher at Harvard. He shields the
Natural law standards of law. To admire the debate it is worthy to note the major contrasts
in the advancement of law in the two nations. In England Law has advanced over
numerous hundreds of years and generally through case laws. In America law has
developed over a shorter time of time and to a great extent focused around codified law.
England has seen relative political strength for a longer period of time and America for a
much shorter time. In England Equity courts are different in relation to Common Law
courts. Equity as per value can be allowed just in the Chancellor's court and all different
courts will concede equity by applying law as settled either by the letter of the law or
through case laws or by another case law made for the facts of the case.

3|Page

HISTORY
Experience is a great teacher. Gustav Radbruch, a Jew by birth lived in Germany prior to
Second World War. He was a firm believer in "positivist" doctrine. After seeing the
atrocities perpetrated by Nazi regime on the Jews under Nazi laws he changed his belief
and became a staunch supporter of Natural Law Theory and exhorted everybody to
1

discard the doctrine of the separation of law and morals. This was also a provocation for
Prof Hart to initiate this discourse. The conflicts faced by the German jurists in post war
Germany, is well illustrated by a category of cases which may be called informer
2

cases. One such case is discussed by both Prof Hart and Prof Fuller. The case is as
under

In 1944 a German soldier came home from far front for a short visit. In his conversation
with his wife he criticized the Hitler government and Nazi Party. He even expressed his
dismay that the man who attempted to assassinate Hitler did not succeed. During his long
absence there were other men in her life and hence she was keen to get rid of her
husband. After his departure to war front the wife reported his remarks to the local leader
of the Nazi party. The husband was tried by a military tribunal and sentenced to death.
However he was not executed. After a short period of imprisonment, he was sent to the
front again. After the collapse of the Nazi regime, a case was initiated against for illegally
depriving the husband of his freedom. After the collapse of the
Nazi regime, the wife was brought to trial for having procured unlawfully the
imprisonment of her husband.

The wifes defense was that she was required to furnish such information to the
authorities under the Nazi statutes and she did not commit any crime. The court of appeal
which decided the case held that the statute under which the wife was claiming protection
"was contrary to the sound conscience and sense of justice of all decent human beings."

Hence it was reasoned that she could not be given protection under such statute. This
reasoning became a precedent in many other informer cases. This reasoning was followed
in many cases which have been hailed as a triumph of the doctrines of natural law and as
signaling the overthrow of positivism.
1324
5

H.L.A.
Hart,
Positivism
andFidelity
the Separation
of Law
Morals,
7171
Harv.L.Rev.616
(1958)
Lon
L.supra
Fuller,
Positivism
to Law -A Reply
to and
Professor
Hart,
Harv. L. Rev. 658
(1958)
See Hart,
supra
note
Hart,
note
1, 1 and
Ibid

4|Page

According to Prof Hart there were only two options:


2

To let the woman go free because the statute protected her;

2. To make a retrospective legislation repealing the statute under which she claimed protection.

Because retrospective legislation is anathema in most criminal justice system the woman
should have been allowed to go free if integrity of judicial principles was to be preserved.
Prof Hart considers it a cardinal mistake of the Court of Appeal to introduce the concept
of morality of the law, under which she was claiming protection, to say that law was no
law at all.

PROF HARTS VIEWS


Prof Hart believes in the theories of law as put forward by jurists like Bentham and
Austin. These jurists propounded utilitarian theory of law. Bentham and Austin,
constantly insisted on the need to distinguish, firmly and with the maximum of clarity,
law as it is from law as it ought to be.

Austin formulated the doctrine: The existence of law is one thing; its merit or demerit is
8

another. A judge deciding a case should go by law as it is. Prof. Hart points out that all
cases may not fall exactly within the law as it is which he calls the core. There will be
cases in the penumbra of law. Harts view is that morals can be an influential factor in
deciding cases in the penumbra.
Jurists like Bentham saw two dangerous results of natural law theory. The anarchist may
argue:
This ought not to be the law, therefore it is not and I am free not merely to censure but to
9

disregard it. On the other hand the reactionary may argue: This is the law, therefore it
10

is what it ought to be. In other words the danger is that on the one hand law and its
authority may be dissolved in man's conceptions of what law ought to be and on the other
hand there is the danger that the existing law may supplant morality as a final test of
conduct and so escape criticism. So
9873 Hart,
See, at
Hart,
1
supra
note 1,note
at 594.
Id.
596 supra
598
10

Ibid.

5|Page

Prof Hart canvasses for the distinction between laws as it is and law as it ought to be.

Bentham criticized Natural Law theory on the ground that "the natural tendency of such a
doctrine is to impel a man, by the force of conscience, to rise up in arms against any law
whatever that he happens not to like.

11

Bentham also feared that under natural law theory courts might be legally bound to

decide in accordance with what they thought just or best.


all round confusion.

12

Such an approach can lead to

It is admitted by Prof Hart and other supporters of Positivism that legal systems had been
13

powerfully influenced by moral opinion and, conversely, that moral standards had been
profoundly influenced by law, so that the content of many legal rules mirrored moral
rules or principles. According to Bentham this is only a historical causal connection, but
Bentham was certainly ready to admit its existence.

14

Prof Hart presents the discussion of separation of law and morals as a problem of
separating law as it is and law as it ought to be. He criticizes natural law thinkers for
ignoring this difference.
i.

Prof Hart identifies the essentials of positivism as the following:


The contention that laws are commands of human beings,

15

ii.

The contention that there is no necessary connection between law and morals or law as it
is and ought to be

iii.

The contention that the analysis (or study of the meaning) of legal concepts is worth
pursuing and to be distinguished from historical inquiries into the causes or origins of
laws, from sociological inquiries into the relation of law and other social phenomena, and
from the criticism or appraisal of law whether in terms of morals, social aims,
functions, or otherwise.

iv.

A legal system is a closed logical system in which correct legal decisions can be
deduced by logical means from predetermined legal rules without reference to social
aims, policies, moral standards,
412
13
Id. At
14 Ibid.
15

599.Id. At 598.

Ibid.
Hart, supra note 1, at 601-602

6|Page

v.

The contention that moral judgments cannot be established or defended, as statements of


facts can, by rational argument, evidence, or proof.

Prof Hart also deals with the issue lack of precision in the words used in any human
language and the role of this factor in judicial interpretation. While applying legal rules to
the facts of a case it become necessary quite often to decide the meaning of the words in a
statute and to decide whether the words used covers the facts to be decided. Sometime
standard instances of the words may not be sufficient to give proper effect to the law.
Prof Hart calls these as
problems of the penumbra.

16

Problems of penumbra cannot be solved by logical deduction. The criterion which makes
17

a decision sound in such cases is some concept of what the law ought to be. This is
where a moral judgment is made about what law ought to be. This is called by Prof. Hart
as necessary
intersection between law and morals.

18

Prof Fullers Criticism


Fuller on the other hand believes in the Natural Theory of Law and the moral foundations
of a legal order. So for him law should always conform to the idea of Gods justice. He is
more concerned with fidelity to law. He emphasizes the view point that fidelity to law can
be achieved only if law is consistent with morals at all stages that is during its making
and during its application by the court whether the case is in the core or the penumbra of
law.

Prof Fuller feels that Prof Harts argument is about definition of law and why there is no
room for morals in the defining law. His argument is that morals cannot be fitted into any
type of definition of law. This is the main criticism against Harts line of thinking as
given by Prof Fuller. Professor Fuller argues that there cannot be a precise definition of
law. So also there cannot be precise definition of morals. When neither can be defined
correctly it is futile to argue that both are separate.
517
Id. At 607.
18 Hart, supra note

Ibid.

1, at 608.

7|Page

The primary concern of Prof Hart is to preserve the integrity of the concept of law.

19

For Prof Fuller fidelity to law is of utmost importance. He argues that there will be
fidelity to law only if laws are consistent with moral values of the people who have to
follow law. Prof Hart criticized
Harts theory under the following specific points
20

The Definition of Law


It is pointed out that it is clearly recognized that there cannot be any one definition of law.
When definition of law is not precise it is futile to argue that it is different from morals
21

The Definition of Morality


Defining Morality is as difficult as defining Law. Law and Morals can be considered to
be different only if we define morals as all desirable standards for human behavior other
than law itself.
22

The Moral Foundations of a Legal Order


People comply with law only if they are convinced that the law is for common good. That
is to say for achieving fidelity to law, Law should have moral foundations
23

The Morality of Law Itself


On rare occasions legal system is confronted with Laws which are anathema to general
sense of morality. Such situations were faced during Nazi regime. After the fall of the
Nazi regime the jurists had a challenge to choose between the consequence of such
immoral laws and the rule of law itself. Prof Fuller presents this dilemma as one

involving order and good order and he argues that good order should be chosen for the
reason that it is good.

6
20

21
22
23

Fuller, supra note 2, at 635


See Fuller, supra note 2, at 633-635

Id. at 635638-643
638
Id. at 644-648

8|Page

The Problem of Restoring Respect for Law and Justice after the Collapse of a
Regime That
Respected Neither
24

The conflict between law and morals came to sharp focus in the predicament faced by the
German Court after the collapse of the Nazi Regime. It was not possible to declare all the
laws made by the Nazi regime and actions of citizens in conformity with such laws to be
illegal. This would have resulted in total destabilization of the society. On the other hand
some of the laws made by Nazi regime were so repulsive to human morals that there was
a need for disapproving actions taken in conformity with such wicked laws. There was
also a need to send a message that the new regime does not approve all the wicked laws
of the Nazi regime.

Thus on the one hand, there was a moral duty to obey law. On the other hand, there was a
moral duty to do what people thought after the war was right and decent. The
fundamental postulate of positivism that law must be strictly severed from morality
seems to deny the possibility of any bridge between the obligation to obey law and other

moral obligations.

25

Thus the German Courts faced a serious dilemma in restoring both

respect for law and respect for justice. Essentially Radbruch saw the dilemma as that of
meeting the demands of order, on the one hand, and those of good order, on the other.

26

Order by itself is no good unless it serves some purpose for the society. So we should not
get obsessed with just order. At the same time in the process of seeking good order we
should lose order itself leading to anarchy. As we seek to make our order good, we can
remind ourselves that justice itself is impossible without order, and that we must not lose
order itself in the attempt to make it good.

726
See Fuller,
27 Id. at 657.

Ibid.

27

supra note 2, at 648-657 Id. at 656

9|Page

The Moral Implications of Legal Positivism

28

After the war Gustav Radbruch started believing that a general acceptance of the
positivistic philosophy in pre-Nazi Germany made smoother the route to dictatorship.

29

Professor Hart regards this as the most outrageous of all charges against positivism. In
pre-Nazi Germany the German jurists had little respect to the Natural Law Theory
discussed by The English and the Americans. For them positivism was the only theory of
law that could claim to be scientific in an Age of Science.

30

It could be reported by

1927 that to be found guilty of adherence to natural law theories is a kind of social
disgrace.

31

Prof Fuller, like Professors Hart and Radbruch, would have preferred a retroactive statute
to deal with informer cases. His reason for this preference is not that this was the most
32

nearly lawful way of making unlawful what was once law.

He argues that this would

have helped the judiciary to return more rapidly to a condition in which the demands of
legal morality could be given proper respect. According to him this would have helped in
preserving the fidelity to law in a more ideal manner.

33

The Problem of Interpretation-The Core and the Penumbra


Professor Fuller sees the problem as one of meanings of words and not an issue of core
and penumbra of law. Further he advocates that the objectives of entire provisions should
be sought rather than the meanings of individual words which are claimed to have
standard instances.

829
30
32 Id.
SeeatFuller,
657. 31 supra
33

Id. at
at 659.
661.

34

note
at 657-661
Id. at2,659
34

See Fuller supra note 2, at 661-669

10 | P a g e

Id. at 663

The Moral and Emotional Foundations of Positivism

35

Prof Fuller is of the view that every Rule has a structural integrity. Within the limits of
that structure, fidelity to law not only permits but demands a creative role from the judge,
but beyond that structure it does not permit him to go.

36

Two Recent Decisions of Indian Courts Demonstrating Influence of Changing


Morality
It may be interesting to examine some recent cases in India in this context. The following
cases are relevant to the context:

1. Naz Foundation v Government of NCT of Delhi

37

In their decision, Chief Justice A. P. Shah and Justice S. Muralidhar declared Section 377
of IPC, as it pertains to consensual sex among people above the age of 18, in violation of
important parts of Indias Constitution. Consensual sex amongst adults is legal, which
includes even gay sex and sex among the same sexes, they said. Thus a law which has
been applied for long in India has been recently found ultra-virus to the Constitution.
Such a decision could never have been thought of in 1950. So decisions of courts depend
on the changing moral values

2. D. Velusamy v D. Patchaiammal

38

In this case the Supreme Court decided that women who had a living in relationship with
a man can claim for maintenance under section 20 (1) (d) of The Protection of Women
from Domestic Violence Act, 2005. The lower Courts declined to grant maintenance
under section 125 of Criminal Procedure Code, to a lady who had a living relationship
with a man but was not a legally wedded wife. The Supreme Court took note of section 2
(f) and section 20 (1) (d) of The Protection of Women from Domestic Violence Act, 2005
and directed that the matter should be examined in the light of these provisions. In this
case it is not that the Court has made a new law but interpreted a new law made by the
Parliament considering the changing social values in Indian society. In the said judgment
the court observed:

39

938
37
Id. atFoundation
669-672 Id.
at 670
Naz
v Government
of NCT of Delhi, 2009 (160)
39 D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469.

DLT 27
D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469, at para 36-37

11 | P a g e

In feudal society sexual relationship between man and woman outside marriage was
totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel

`Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great
Bengali writer Sharat Chandra Chattopadhyaya. However, Indian society is changing, and
this change has been reflected and recognized by Parliament by enacting The Protection
of Women from Domestic
Violence Act, 2005.

12 | P a g e

CONCLUSION
Law and Morals both lays down desirable behavior from human beings. So there is
nothing surprising that both have many elements in common. If law has to be accepted by
people it should conform to the behavior standards that people desire. These standards are
decided largely by morals. Prof Fuller is not completely off the mark, when he criticizes
the positivist approach to law. He has a point while attacking the strict positivist
approach, which was evident during the Nazi war crimes trials, where the deciding
authorities were faced with the strange paradox of having a monstrous law in one hand,
while on the hand, was the defense, that the same law was good law in the days of the
Reich. And to this point, Prof Fullers doesnt seem to be only voice against the apparent
flaw with the positivist viewpoint, as Radbruch, himself a positivist, agreeing with
Fullers view in the wake of the trials.

The issue devolves into the larger question over how law should be defined. Prof Hart
was of the opinion that integrity of the law must be maintained. Prof Fuller argues that
law itself cannot be defined within set parameters and hence it is fidelity of law which
must be preserved. Fidelity, he maintains, would involve morality and so one has to see
law and morals as one, in this context.
In everyday practice it would be wise for any individual to keep a moralistic lookout
while acting upon laws, because, as Fuller later points out, not all situations may fall
within the core areas of the law. There are some unchartered waters as well, which he
calls, the penumbra. And the standard instances may not be standard after all, an in
such cases, it will be prudent to look at the objective of the entire provision.

So it is not possible to separate law from morals. No law can be very precise because
every word has different meanings and different shades of meanings. Further no law can
envisage all types of situation it has to handle to achieve the desired behavior. So when in
doubt regarding the meaning of law one has to look at the moral values among other
things.

13 | P a g e

BIBLIOGRAPHY:
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev.616
(1958)
Lon L. Fuller, Positivism and Fidelity to Law -A Reply to Professor Hart, 71 Harv. L.
Rev. 658 (1958)
Separation of law and morals : A debate about legal validity and its implications for
moral criticism
The Hart-Fuller Debate by Justice Markandey Katju

14 | P a g e

You might also like