Hart Fuller Debate

JURISPRUDENCE A PROJECT REPORT ON

HART – FULLER DEBATE – LAW AND MORALITY IN CONTEMPORARY INDIAN SOCIETY

NATIONAL LAW UNIVERSITY ODISHA Prepared under the guidance of: Ms. Sheela Rai (Assistant Law Professor) (School of Law)

Submitted by: Avilash Kumbhar (2012/BBALLB/015) Gautam Panigrahi(2012/BBALLB/022) Semester - V

National Law University Odisha Contents INTRODUCTION ........................................................................................................................................ 3 HISTORY ..................................................................................................................................................... 4 PROF HART’S VIEWS ............................................................................................................................... 5 Prof Fuller’s 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

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

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National Law University Odisha 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.

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National Law University Odisha 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 discard the doctrine of the separation of law and morals.1 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 cases”.2 One such case is discussed by both Prof Hart and Prof Fuller. The case is as under3

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 wife’s 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."4 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.5 1

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) 3 See Hart, supra note 1 4 Hart, supra note 1, 5 Ibid 2

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National Law University Odisha

According to Prof Hart there were only two options: 1. 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.6 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 HART’S 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.7

Austin formulated the doctrine: The existence of law is one thing; its merit or demerit is another.8 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. Hart’s 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 disregard it”.9 On the other hand the reactionary may argue: “This is the law, therefore it is what it ought to be”.10 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

6

See Hart, supra note 1 Hart, supra note 1, at 594. 8 Id. , at 596 9 Hart, supra note 1, at 598 10 Ibid. 7

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National Law University Odisha 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. 12 Such an approach can lead to all round confusion.

It is admitted by Prof Hart and other supporters of Positivism that legal systems had been powerfully influenced by moral opinion13and, 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. “Prof Hart identifies the essentials of positivism as the following:15 i.

The contention that laws are commands of human beings,

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,

11 12

Ibid. Id. At 599.

13

Id. At 598.

14

Ibid.

15

Hart, supra note 1, at 601-602

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National Law University Odisha 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 a decision sound in such cases is some concept of what the law ought to be.17 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 Fuller’s 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 God’s 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 Hart’s 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 Hart’s 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. 16

Id. At 607. Hart, supra note 1, at 608. 18 Ibid. 17

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National Law University Odisha 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 Hart’s theory under the following specific points The Definition of Law20 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 The Definition of Morality21 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. The Moral Foundations of a Legal Order 22 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 The Morality of Law Itself 23 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.

19

Fuller, supra note 2, at 635 See Fuller, supra note 2, at 633-635 21 Id. at 635- 638 22 Id. at 638-643 23 Id. at 644-648 20

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National Law University Odisha The Problem of Restoring Respect for Law and Justice after the Collapse of a Regime That Respected Neither24 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.27

24

See Fuller, supra note 2, at 648-657 Id. at 656 26 Id. at 657. 27 Ibid. 25

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National Law University Odisha 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 nearly lawful way of making unlawful what was once law.32 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.

The Problem of Interpretation-The Core and the Penumbra33 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”.34

28

See Fuller, supra note 2, at 657-661 Id. at 657. 30 Id. at 659. 31 Id. at 659 32 Id. at 661. 33 See Fuller supra note 2, at 661-669 34 Id. at 663 29

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National Law University Odisha The Moral and Emotional Foundations of Positivism35 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 Delhi37 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 India’s 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. Patchaiammal38 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

35

Id. at 669-672 Id. at 670 37 Naz Foundation v Government of NCT of Delhi, 2009 (160) DLT 27 38 D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469. 39 D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469, at para 36-37 36

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National Law University Odisha “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.”

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National Law University Odisha 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 Fuller’s doesn’t seem to be only voice against the apparent flaw with the positivist viewpoint, as Radbruch, himself a positivist, agreeing with Fuller’s 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.

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National Law University Odisha 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

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