Philosophy:Hart–Fuller debate

The Hart–Fuller debate is an exchange between the American law professor Lon L. Fuller and his English counterpart H. L. A. Hart, published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.

Nazi informer case

The debate discusses the verdict rendered by a decision of a post-war West German court on the following case:

"In 1944, defendant, desiring to get rid of her husband, reported to the authorities derogatory remarks he has made about Hitler while home on leave from the German army. Defendant wife having testified against him, the husband was sentenced to death by a military tribunal apparently pursuant to statutes making it illegal to assert or repeat any statements inimical to the welfare of the Third Reich. . . . However, after serving some time in prison, the husband was sent to the front. Following the defeat of the Nazi regime, the wife, as well as the judge who had sentenced her husband, was indicted under § 289 of the German Criminal Code of 1871, for the unlawful deprivation of another's liberty ('rechtswidrige Freiheitsberaubung'). On appeal to a German Court of last resort in criminal cases, held, that the sentencing judge should be acquitted, but that the wife is guilty since she utilised out of free choice a Nazi 'law' to the sound conscience and sense of justice of all decent human beings about the death or imprisonment of her husband.

Philosophy

Context

Jurisprudence refers to the many different ways to analyze the philosophy of laws. Within Jurisprudence there are multiple schools of thought, each philosophizing in their own way, but the Hart v. Fuller debate surrounds the contrast in views between legal positivism and natural-law theory. Legal positivists are people who believe that "so long as [an] unjust law is a valid law, one has a legal obligation to obey it". Positivists disregard the morality of valid laws and treat written law as the sole source of authority over what is valid or not, which stands in contrast to natural law theory. Natural law-theory sees a direct connection between law validity and morality. The general source of morality used in this school of thought is a philosophy called "Utilitarianism", which suggests that moral right and wrongs are determined by how much an action benefits/harms the people affected.

Arguments

H.L.A. Hart

In Hart's initial paper, "Positivism and the Separation of Law and Morals", he establishes that the "Command Theory" perspective of Legal Positivism, which was stated by John Austin, and believes that laws are commands to human beings, is inadequate as it does not accurately represent the nature of laws. Hart then defends the problem of "the core and the penumbra", which arises when the meaning of a law can be up for interpretation. The problem of the penumbra arises when the definition of a word in a law is inadequate in deciding the outcome of the case, leading to human interpretation of the law being the deciding factor. An example of this problem would be a law that refers to a vehicle, which would clearly mean automobile in a core case, but in the penumbra case, the vehicle in question is an airplane, or motorcycle. Hart suggested that rather than interpreting the law with respect to subjective moral values on the given word, the law should be interpreted with respect to the purpose of the law. Finally, Hart approaches the criticism of separation of law and morals in an environment of extreme evil law. He discusses the viewpoints expressed by Radbruch and Kelsen surrounding the Nazi regime's extreme corruption in the legal system. From this discussion, he moves to analyzing the Nazi informer case. In this analysis, he disagrees with the reasoning for the court's ruling, and presents two alternatives. One is to let the woman go unpunished, which he acknowledges is not morally correct, or to punish the woman, and admit that it would set a dangerous precedent of retrospective law. Hart states that these two choices are both evil, which shows that hiding the morality of law is not the solution.

In Fuller's response to "Positivism and the Separation of Law and Morals", titled "Positivism and Fidelity to Law: A Reply to Professor Hart", he criticizes Hart's lack of acknowledgment of the morality involved in the creation of law, and refuses his suggestion of interpreting the objective of an entire law rather than the meaning of the individual words. Fuller states that the type of respect we give to human laws must be different than the respect we give to a scientific law. For a law to deserve our respect, it must "represent some general direction human effort that we can understand and describe", and the principle of the law must be unconditionally valid.

In the first section, "The Definition of Law", Fuller breaks down the difference of opinion between Austin, Gray, Bentham, and Holmes, all positivists that Hart defended. Fuller says that the positivist conclusion that however law is defined, it is different from morals, is useless. He then states that Hart's thesis is incomplete due to the useless idea from the positivists he referenced, and that for it to be complete, he would have to define law in a way that "will make meaningful the obligation of fidelity to law".

In the next section, "The Definition of Morality", Fuller likens those who agree with Hart to people building defense for a village, knowing who they want to protect, but not who they are protecting them from. The thing they are trying to protect is the integrity of the concept of law, and their defense is a precise definition of law, but the attackers are what their definitions do not apply to. Fuller then interprets Hart's examples of the many degrees of "what ought to be" that are immoral, concluding that Hart is reminding positivists that the program that they adopt may come with undesirable moral consequences. Fuller agrees with this point, and follows up by stating the following observations and asking the following questions

1. Fuller observes that Hart assumes that evil objectives have the same coherence and logic as good objectives, and he disagrees with this observation, believing that coherence and goodness have more correlation that coherence and evil. He then states his belief that when someone explains their decisions, the decisions will move towards goodness. Finally, he rejects the idea that over time, a legal system will work itself towards goodness case by case, and will instead entrench itself in unjust behavior.
2. Fuller questions the idea that the decline of the separation between law and morality would allow immoral values to be ingrained in the justice system, asking what the protection against this risk would be. Fuller then states that the answer would not be found in the writing of Austin, Gray, Holmes, and Hart, as they break the problem into a state of simplicity that ignores the true dangers.
3. Fuller hypothesizes a situation in which a judge aims to pursue a goal that most citizens would view as morally wrong, and questions if the judge would be likely to make their decision based on a higher moral principle, or aim to keep the interpretation consistent with the existing laws, and explain the decision in a way that would align with the chosen laws.
4. Fuller hypothesizes a situation in which both him and Hart were in a country where their beliefs were the minority, and they believed that the majority's beliefs were morally evil. Fuller then states that they would be worried that laws would be manipulated to operate against their beliefs, but he doubts that they would be worried that someone would challenge those laws, appealing to the majority morally evil beliefs in the country. Fuller says that even in the most oppressive institutions, there is still a reluctancy to codify extremely evil laws, and that it is clear that the reluctancy stems from a tendency to associate law with easily justifiable morals.
5. Fuller states that in populations where the judicial process is functioning effectively, it is very unlikely that immoral law will be integrated. He defends this by giving the example of commercial law in Britain adopting a "law-is-law" formalism, going against the work in the field that was done by Lord Mansfield. At this time, this situation grew to be a large problem as many commercial cases were being taken to arbitration. Fuller states that the reason for this shift towards arbitration is that arbitrators are willing to offer a more flexible process that will consider the needs of the situation and industry more. At the end, Fuller says that even though Hart rejects "formalism", he believes that Hart's theory leans in the direction of formalism.
6. Fuller references the Pope's 1949 statement in which he told all Roman Catholic jurists in the world to not pass sentences base on laws that the church sees as unjust, stating that this is an instance of a bias that often influences how one perceives everything regarding a subject. He says that this is a conflict between two different kinds of law, and in a situation like this, it is difficult to have a meaningful exchange surrounding the topic, which may affect readers of Hart's essay

In Fuller's third section, "The Moral Foundations of a Legal Order", he begins by agreeing with Hart's analysis of the command theory. Fuller continues by stating that he predicted that Hart would acknowledge the role of morals in the rules allow law making to happen, then critiques Hart based on the fact that he did not acknowledge the relationship. This brings him to analyzing Austin's Lectures V and VI on Jurisprudence, bringing up all the inconsistencies in Austin's theories which could have easily brought him to abandon his command theory. Fuller then questions how the words "fundamental" and "essential" could be defined in Hart's idea of fundamental rules specifying the essential legislative process. He acknowledges that Kelsen's theory had an answer to this, but it is achieved by simplifying reality so much that it can be absorbed by positivism. Fuller continues by stating that written constitutions are vital in legal systems, and should be provisionally accepted as good law.

In Fuller's fifth section, "The Problem of Restoring Respect for Law and Justice After the Collapse of a Regime That Respected Neither", he finally looks at the Nazi informer case. Fuller believed the none of the Nazi laws were valid, as the entire regime was evil, and the law making process lacked internal morality.   

See also

• Hart–Dworkin debate
• Legal positivism
• Natural law

References

• Hart, H. L. A. (1958). "Positivism and the Separation of Law and Morals". Harvard Law Review 71 (4): 593–629. doi:10.2307/1338225. 
• Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart". Harvard Law Review 71 (4): 630–672. doi:10.2307/1338226. 

External links

• Jan Komárek: Ještě ke konferenci k padesátinám debaty mezi HLA Hartem a Lonem Fullerem (in Czech)
• Aakash Singh Rathore, "Video lecture on the Hart-Fuller Debate": [1]