Morality & Law: The Hart & Fuller Debate

By Shraddha Tiwari

First-year law student at Christ University

Edited by. Ms Ragini Sehgal

INTRODUCTION

Law and morality are concepts that are very difficult to define. Many attempts were made in the past by different philosophers to define law and morality but all were not successful. Laws are basically concerned with legal rights and duties which are protected and enforced by the state, laws are also backed by sanctions, therefore, if one attempts to disobey the laws of the state, he/she is liable for punishment. On the other hand, morality basically categorizes human behavior as good or bad. The cannons of morality however are based on moral duties and obligations. If one does not adhere to the standards of morality which are prescribed, he/she cannot be held legally liable. However, morality involves incentives of sorts. When we do the right thing, we experience virtue and enjoy praise and when we do the wrong thing, we suffer guilt and disapprobation. Both law and morality channel human behavior.

Morality is concerned with regulating both the internal and external conduct of a human being and on the other hand, Law is concerned with regulating the external conduct of an individual. Law and morality go hand in hand, both are not exclusive because time and again we have seen examples of certain things which are immoral and illegal at the same time. But in the past, many philosophers had debated over this point and had tried to answer the intriguing questions, i.e. , whether or not morality should be enforced by law or whether laws would still be binding if they do not reflect moral principles or whether it is morally justified disobeying bad laws? In this article, the most popular debate of all times between Hart and Fuller over Law and Morality will be the discussed in detail.

PROFESSOR HART’S VIEWS ABOUT LAW AND MORALITY

Professor HLA Hart was a legal positivist and a critical moral philosopher. As a legal positivist, he states that it is not necessary that laws have to satisfy certain demands of morality. While acknowledging the close relationship that exists between law and morality, he does not believe them to be interdependent. According to him, it is not essential that a legal system must exhibit some conformity with morality. Laws simply do not cease to exist on the ground of moral criticisms.

Unlike the other legal positivists, Hart does not deny that the development of law has been profoundly influenced by morality. Hart acknowledges that law and morals are bound to intersect at some point. Therefore, it becomes necessary to distinguish between what law is and what law ought to be. According to Hart, legal interpreters should display the truthfulness or veracity about law, by concentrating on what it says rather than focusing on the aspect of what one wishes it to be said.
Hart says that the essence of law consists of two different kinds of rules, i.e. the primary and secondary rules. Primary rules are the duty imposing rules that have legal sanction and imposes certain duties on the citizens. Secondary rules are the power-conferring rules that prescribe how the primary rules are to be recognized, changed, and adjudicated. Secondary rules can be said to be rules for primary rules. Together the primary & secondary rules form the heart of the legal system. And, the principle of justice or the rule of recognition is the ultimate rule that binds the legal system as a coherent whole.

PROFESSOR FULLER’S VIEW ABOUT LAW AND MORALITY

Professor Fuller defines law as a particular way of achieving social order by guiding human behavior according to rules. It is the enterprise of subjecting human conduct to the governance of rules. According to Fuller, our legal procedures are built out of norms of justice, which have a moral aspect. The procedures which are embodied in a legal system are morally important in determining whether a set of rules count as a legal system. He believes that for a law to be called a law in a true sense, it must pass a moral functional test. If a rule or a set of rules fails to conform to this function, it does not count as law.

While explaining the concept of morality, Fuller categorizes the term morality into two different sets of components. One set comprises “morality of aspiration” and “morality of duty”. The morality of aspiration connotes the desired norm of human conduct which would seek to promote his best interest. The morality of duty describes the standards which are followed by human beings at a given time and place, to ensure the smooth functioning of the society. The other set of moralities consists of what Fuller calls as the “external morality of law” and the “internal morality of law”. The internal morality of law is concerned with the procedure involved in making law. The internal morality of law can be said to be a morality of aspiration rather than a morality of duty. And, external morality of law denotes the substantive rules of law which are applied in decision making.

Hart used to believe in the ideas of natural school but Fuller used to support the positive school because he asserts that not all mandates which have the power to compel compliance can be rightfully treated as law. He urges lawmakers to realize that there exist other ways and means to attain society’s end rather than relying only on law. He believes that if lawmakers realize this, then they can make efficient use of law as an instrumentality to regulate our society.

STANDARDS PRESCRIBED BY FULLER

Fuller prescribes eight standards, and says that for a principle to be accepted as law, it must be measured in terms of these standards which are as follows-

1. The principle must be interpreted in a manner so that it can be generally applied.
2. Law must always be put into effect and communicated to the people.
3. Law should always be applied in a prospective manner. Retrospective application of law should only be permitted in rare cases depending upon exogenous circumstances.
4. There should be clarity in the law.
5. Law should be free from contradictory mandates.
6. Laws should not impose impossible standards of action.
7. Stare decisis is desirable according to Fuller, as the individuals are spared of the changes that they are otherwise subjected to in case of frequent alteration of laws.
8. According to Fuller, for a law to attain its objectives, it must conform to the prescribed norms and the actions of individuals.

According to Fuller, lawmakers should consider these eight tests before making any law. Though he is a natural school philosopher but he believes that law is terrestrial in its origin and application i.e. a law has to have a unity of purpose for regulating human behavior for attaining society’s objectives. Fuller had always believed that a law should be fluid enough to adjust to the dynamic nature of mankind. And, it is only possible if it takes into consideration the nature of man. Law according to Fuller should be used to bring people together for fostering their best interest.

The Hart- Fuller debate demonstrates the difference in ideologies between Hart and Fuller. While positivism holds that to be a valid law, all that is required is that it should have been issued from a competent legislator after following the prescribed process, natural law theory holds that there exists certain ideal principles or values to which the law should correspond, if it is to be regarded as a genuine law.

The existing conflict between law and morals can be better understood by way of discussing a case famously known as the ‘Grudge Informer’ case. The said case was discussed at length by both Professor Hart & Fuller. The facts of the case are such that the wife of a German man had reported her husband to the Gestapo for criticizing Hitler’s conduct of war. The husband was tried and sentenced to death, but later on, his sentence was converted to service as a soldier on the Russian front. The husband survived the war, and after the war instituted legal proceedings against the wife. The wife in her defense contended that she had reported her husband because her husband had committed an offense under a Nazi statute of 1934. The basic principle of the Nazi law was laid down by the Enabling Act of July 12, 1934, passed by the German Reichstag, which had amended the German Constitution by permitting Hitler to issue decrees inconsistent with the Constitution. It declared the law and will of Hitler to mean one and the same thing. The German Courts faced a serious dilemma. On one hand, there was a moral duty to obey the law. On the other hand, there was a moral duty to do what people thought was right and decent. Then, there was also the need to restore respect for law and justice. They agreed that it was not possible to declare all the laws made by the Nazi regime and the actions of citizens in conformity with such laws to be illegal, as it would result in total destabilization of the society. However, they felt that some of the laws made by the Nazi regime were so repulsive to human morals, that there was a need for disapproving actions taken in conformity with such laws, so as to assure people that the new regime did not approve of such twisted laws. Accordingly, the Court held the wife to be liable for having acted in a contrary manner to sound conscience and sense of justice of all decent human beings and stated that they did not consider such which were so repulsive in nature.

In light of the facts of the above case, 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. On the other hand, Fuller accepted the Court’s verdict because it creates respect for both law and morality, by making unlawful laws illicit, achieving fidelity to the law. But according to the author, Hart was not completely wrong, in fact, the wife acted according to the valid laws of those times, she did nothing wrong, in fact, she followed the laws. According to the author, a valid judgement will be, the wife should not be held liable because she did nothing wrong and had acted according to the established laws and at the same time the Court should remove those laws which are immoral.

CRITICISM TO HART’S THEORY

Hart has been criticized on the ground that he himself becomes inconsistent when he concedes to a minimum content of natural law which includes human vulnerability, approximate equality, limited resources, limited altruism, and limited understanding and strength of will. Hart’s rule of recognition requires a minimum morality of law. Impartiality in the application of a rule is a moral standard which is necessary for any legal system. Fuller believes that Hart is aware of the internal morality, only he calls it justice in the administration of laws.
In order to justify his arguments, Hart presents us with a hypothetical illustration of ‘VEHICLE’. Fuller challenged Hart’s idea of a language-determined core of legal rules, by giving a counter illustration of ‘PATRIOTS’. Fuller contended that it was not possible to determine if a rule applied to a given situation, without understanding the purpose that the rule was supposed to serve by referring to the objectives of entire provisions of law rather than seeking to find the meaning of individual words. He identifies the problem as one of interpretation of words and not an issue of core and penumbra as claimed by Hart. He also emphasizes that fidelity to the law can be only achieved if the law is in consonance with morals at all stages, be it at the time of making of the law (core) or its application by the court (penumbra of law). People will comply with the law only if they are convinced that the law is based on strong moral foundations enacted for their common good. Fuller further criticizes Hart’s definition of law which insists that law and morality need to be separated. Fuller contends that there cannot be a specific definition of law. Likewise, even morality cannot be defined precisely. Therefore, Fuller argues that because there is no precise definition for law and morality, it is futile to argue that both of them are separate.

CONCLUSION

Hart believed that there is no necessary relationship between a legal system and the ideas of morality. Fuller maintained that law and morality could not be divorced from each other. The two belonged to opposite schools of thought, and both of them defended their ideologies. However, they both did agree that an unjust and immoral legal system would not be stable and long-lived. Legal systems aim at achieving justice, which is grounded in morality. The legitimacy of a government is derived from morality. A vast majority of society will not conform to law’s dictates if they don’t feel any sense of moral obligation. A system that lacks morality and justice will have to depend upon repression. And, when a repressive regime falls, its system falls with it. The author agrees with Prof. Fuller because law and morality have many elements in common, a good law can be formed only after taking into consideration its effect on human behavior. Therefore, Law and Morality are not exclusive but go hand in hand