HART FULLER DEBATE

INTRODUCTION

Hart Fuller Debate is one of the most interesting academic debates of all times that took place in
jurisprudence. It demonstrates the divide that exists between the positivist and the natural philosophy of
law regarding the role of morality in law. While, Hart argued that law and morality are separate from
each other and they can be termed as mutually exclusive. Fuller was of the view that there exists a deep
connection between law and morality and the authority of law is derived from its consistency with
morality. The debate began when Hart published his Holmes lecture entitled “Positivism and the
Separation of Law” in Harvard Law Review, 1958. The reply was given by Fuller in his article
“Positivism and Fidelity to Law- A reply to Prof. Hart also published in 1958 in the Harvard Law
Review. The Hart Fuller debate illustrates the opposing points of view of positivism and natural law,
particularly in context of Nazi Laws. Natural law theory holds that along with the positive law there
exist certain ideal principles or values to which the positive law should correspond if it is to be
regarded as genuine law. Thus, while positivism holds that to be valid law, all that is required is that it
should issue from a competent legislator after following the prescribed process, natural law theory
requires in addition that such law, to be valid, must conform to some ideal principle (which may
emanate from morality, reason, God, or some other such source). The Hart-Fuller "debate" illustrates
the opposing points of view of positivism and natural law, particularly in the context of Nazi laws.

Hart being a positivist criticized the judgement for disregarding the written law. He argued that the law remains law even
if it does not meet the demands of external moral criteria. He said ‘Law is not morality; do not let it supplant morality’. He
said law being inherently evil and how one ought to react to the law are two separate issues and merely because a laws
foundation is on evils has to be made in extreme circumstances. He said that a legal system might show some conformity
with justice or morality but does that does not follow that a rule of recognition a criterion of legal validity ought to include
morality in it. Law and morality are not interchangeable terms and law cannot be strike down merely if it’s devoid of any
moral content.1

1
Hart Fuller Debate- Jurisprudence Notes. (2017, 12 16). Retrieved from Notesforfree: http://notesforfree.com/2017/12/16/hart-fuller-debate-jurisprudence-notes/