Introduction

Law and morality are different words with different meanings, yet they influence each other and often used overlapping. Law is defined as “a rule of conduct or action prescribed or enforced by controlling authority: as a) a command or provisions enacted by a legislature b) judicial decisions1. Morality means “the quality of being right, honest or acceptable”2. Law creates an obligation as the disobedience of law would lead to punishment or fines. Morality is more of a social obligations dictated by the societal understanding of right and wrong. Morality is for the good conduct of men for themselves and other fellow beings. Laws on the other hand are for the smooth functioning of the society itself. The Hart and Fuller debate revolves around the philosophy of law and morality

H.L.A Hart espouses what is known as legal positivism. According to the legal positivism law and morality are two different entities without any necessary connection. Legal positivists see the law in terms of ‘what is’ and morality as ‘what ought to be’3, therefore the legal system is free standing and doesn’t need support from any other school of thoughts to “justify its independence”. Whereas natural law theories propounded by Lon L Fuller suggests otherwise. Law for them is not limited to the legal system itself but has its basis from morality. Natural law theorists also discard those laws which are not morally right. Fuller is of the view that law should serve a purpose4. Hart’s work was to make the legal positivism more refined version from that of Austin’s command theory. Fuller had completely rejected the view point of Hart and was not at all convinced by the argument put forward by him.

Law as Command

Hart defends Austin and Bentham who first promulgated that “law as it is” and not “what ought to be”. The Austin theory of command defines law as a command by a sovereign backed by threat of sanctions which is obeyed by people. Basically in this definition there is no scope for morality. The utilitarian concept was to establish the idea of free standing legal system. Even though Austin had ascertained the rules of the God yet he had no interest to bring into the same light moral principles and rational legal principles.

Hart while criticizing the concept of obeying point out that this is a “normative behaviour”5 followed by all to avoid standing out. And law is more of a command with regards to criminal law which refrain a person from committing wrong by according appropriate sanctions. For the rest of the laws, such as contract laws and administrative laws, it is more of a method and steps

to follow or as stated by him “if you wish to do this, here is the way to do it.”6 Thus thoroughly dividing the rules into primary and secondary rules and founding the science of jurisprudence.

Hart fully understand the need of morally just law for the betterment of individuals and by extent the whole society. The obedience to morally bad law should rest on individuals, even though such rules are legally valid.7 He does not deny the “correspondence of law and morality” for the stability of the legal system.

Fuller explains that the fidelity of law as the loyalty which is owed by the human made laws. They command our respect not because they have been made by some authority but because they should “represent human achievements”8.

The Problem of Penumbra

Penumbra means a looming problem. The problem of penumbra arises when the words do not clearly define the meaning of the law or when established in law the meaning seems obsolete. In such situation the judges are free to interpret the meaning of the law. Herein Fuller accuses Professor Hart for “following the tradition of his predecessors and treating morals as extralegal entity.”9 According to him when the judges interpret a law they are by means of interpreting going for ‘what ought to be’ than ‘what it is’. Therefore they are opting for the morals behind the meaning to interpret the law.

Hart defends his point of view by stating that ‘what ought to’ is not understood in a moral sense but is understood in a rational legal sense itself. ‘What ought to do’ is read in to the law is not appealing to the outside of the law (i.e., to morality) but it is appealing to the rational inconsistency of the law itself.10

This problem of penumbra is illustrated by an example which has been used by Hart himself. As per the law a vehicle is not permitted into a park. Now a bicycle is parked in the park. A police officer left a ticket for parking the bicycle in the park. When this matter went to the court the question before the judge was to consider bicycle as a vehicle or not. The purpose of this particular law was to keep motorized vehicle outside of the park to keep the pollution in check. The judge understands the purpose of the law and therefore “bicycle ought not to be included in the definition of vehicle”. Fuller portrayed this as the perfect example of ‘what ought to be’ by reaching out to some external factor, but again Hart claimed that this conclusion has been inferred from the total “categorisation and harmonisation” of the legal system.

The Morally Bad Law

This is the third component of the debate in which directly questioned morality and the law. During the third Reich it was a criminal offence to insult the Fuehrer. A wife informed the authorities that her husband was using derogatory against Hitler, so the police came and took him away. When the war was over she was tried and convicted along with many others. She was not affiliated to the Nazi party or to the Stormtroopers. She was just a civilian following the law in place at that time. This was called the informer’s case. The lady was convicted but the judge who tried and sentenced her husband was let go when the case went into appeal.

For the positivist the lady was simply following the law and the law is what it is. She simply was obedient citizen to a command. But the naturalist think that she “ought not to have” obeyed such a law which was not morally or consciously right. Her defence and claim for protection for following the law which was “contrary to all sense of justice” was not accepted in the court.

Fuller’s Eight Principles

Fuller recommended some principle for the laws to be accepted

1. The laws made should be “expounded”. He rejects any kind of law which is “ad-hoc” in nature.

2. “Promulgation” of the laws which are made should be informed to the people.

3. Laws should be applied only in “prospective” manner.

4. Laws should be clear and comprehensible in all manner and sense.

5. Laws should not be contradictory in nature. It should follow a consistent pattern.

6. Laws should not be impossible to obey. It should be made in a manner which is possible to obey

7. Laws should not be made in such manner that they need to be changed frequently. He finds this “has deleterious impact on persons”11

8. Laws should be administered and stated as it is.12

Conclusion

The positivist accepted these principles given by Fuller. Moreover Hart had accepted the notion that some kind of moral backing is needed for the smooth functioning of laws. These are called the natural principles of justice. But the difference arises when morality is divided into external morality and internal morality. For Fuller external morality is that one should follow the law and the internal morality is the justice in the administration of law. Hart is all for morality as an external entity.

In most situations positivism seems to work and law and morality seems parallel working from their own spheres. But there are instances when the laws itself are questioned. So in terms of morally bad law positivists have not been able to put forward a convincing argument. Natural law seems to tackle situations such as war crime, genocide etc.

Bibliography

Dictionary of Law. (2005). Merriam-Webster .

Cambridge Dictionary. (n.d.). Retrieved June 07, 2020, from Cambridge Dictionary English: https://dictionary.cambridge.org/dictionary/english/

Fuller, L. (1958). Positivism and Fidelity to Law: A Reply to Professor Hart. Harvard Law Review , 71(4), 630-672.

Fuller, L. (1964). The Morality of Law. Yale University Press.

Hart, H. (1958). Positivism & the Separation of Law & Morality. Harvard Law Review , 71, 593-629.

Hart, H. (2012). The Concept of Law. Retrieved June 08, 2020, from https://books.google.co.in/books?id=hC0UDAAAQBAJ

Tucker, E. W. (1965). The Morality of Law, by Lon L. Fuller. Indiana Law Journal , 40 (2).

Vega Gomez, J. (2014). The Hart-Fuller Debate. Philosophy Compass , 9, 45-53.

Author: Ananya Nair, Legal Intern at Legal Desire (June 2020)

Law student from Symbiosis Law School, Noida., interested in fields areas of human rights, constitutional law and IPR.