HART-FULLER DEBATE

HART – POSITIVISM AND THE SEPARATION OF MORALS

Utilitarian thought

 harm principle – Mill – used especially for criminalisation (traditionally criminal law was to
prohibit what states want to prohibit) – usually looks at direct harm – but what is harm? –
three layers: whether it crosses the threshold of harm? whether it must be regulated? whether
it must be criminalised?
 Three theories of utilitarian thought on law – imperative theory of law
o Separability of law and morality
o Analytical study of law is as important as a social/historical study – analyse and
evaluate law and legal concepts
o Law is a command – imperative theory of law

Separability of law and morality

 if you confuse law and morality – clarity is gone – anything can be claimed
 morality is not social morality, but critical morality which is unchanging/universal

Analytical study of Law

 Individual concepts require study – understanding mens rea is important, more important
than precedent on mens rea
 The concept of law itself is a major concept that requires study – laws need to be certain,
predictable, consistent and therefore, efficient
 IPC and IEA – utilitarian thought is very evident here – the entire principle of this
codification exercise was utilitarian – Macaulay and Stephen both talk about how to draft law
– say the entire statute should have one set of values and you should be able discern those
values

Hart – in this essay defends the separation of law and morals – criticisms levelled on utilitarian legal
thought has touched on truth

 First part – virtues of utilitarian thought in law – on how you understand law, notion of rights,
without conceding a connection between law and morality – positivist thought – taken the
 discipline of law forward, established human rights – ironic that natural law which was
content with inequitable regimes now accuses positivism of a possible totalitarian regime
 Criticism of utilitarian thought – some are valid, but even those criticisms do not derogate
from the first thesis which is the separability thesis

Austin’s conception of law – criticisms of command theory

 in a modern legal system cannot locate the idea of a sovereign

 does not explain the existence of several types of law – sometimes law plays a mediating/
facilitative role, not commanding
 legal rights and limitations on powers of sovereign

Hart – this criticism, while valid, does not show that law and morals have to be the same – there can
be principles which can govern actions of individuals, but they do not have the force of law

Criticism from legal realism –

 Legal realism – what really goes on in the law, how does law behave, how is it brought into
existence and taken out – focussed on studying what do courts do: how do judges decide, do
judges have social aims/biases, consider outcomes –
 Legal realists have thought that legal positivists are formalists / that positivism is a formalist
theory of law – legal positivism denies that judges have any discretion, that they never apply
anything beyond the law
 Hart concedes to this – social aims, morality can be posited in law which judges might take
into account, plus there is the penumbra where judges have discretion – still does not
derogate from a conceptual separation between law and morals
 The fact that judges routinely look beyond the law doesn’t prove the natural law theory –
judges can look at anything beyond the law, not necessarily a moral principle – does not
derogate from a separation between law and morality
 Positivism recognises that are principles within the legal system that can be recognised by
judges and applied – Blackstone was a formalist

Nazi Germany – a system that turns evil – doesn’t take much for a legal system to start
discriminating in an evil manner
 German system – was extremely dryly positivist – led to all these evils being brought into law
with so little resistance – testament to failure of legal positivism – no judicial review
 Gustav Radbruch – legal positivist turned NLT after WWII
 Hart – calls this massive turn to NLT hysteria

FULLER
 Hart - just because one judge is formalistic, and another is not, doesn’t mean the latter will
use his position to take the law away from NLT – non-formalistic approach doesn’t mean that
judge will follow NLT
 Fuller’s basic disagreement with Hart – good purposes have more logic coherence than bad
ones – if you want to achieve evil, you will take away the logic coherence of law – take away
basic procedural requirements and safeguards
 A logical system of law by its procedure itself makes the achievement of evil outcomes
difficult – this is the inner morality of law –
 Eg: Hyderabad encounter – starting point of the breakdown of a legal system
o Fuller – procedure not followed making evil outcome easier
o Hart – would also say this is a violation of law – secondary rules not followed –
clearly a violation of posited law – no need to go further, into morality – a legal
system cannot sustain itself if state officers start violating secondary rules – police
officer should know the inherent value of following the required procedure – here it is
a willing ignorance/disregard for this rule
 Terror acts / special statutes / POCSO – violate certain basic principles of law – derogating
from generality of law, which for Fuller is a principle of morality – if a legal system has to
achieve evil outcomes it will derogate from generality – create in your mind this idea that
certain offences are different, need to be looked at and dealt with differently – already
covered in the IPC – all these special statutes take away procedural safeguards – show that
you have no trust in state officials (like police officers) || Hart – would say that this is still
validly posited law, evil or otherwise
 state and rights of individuals are always in tension – the nature of state power is that it will
try to take away more and more of liberty – so state waits for moments of social rupture to
encroach upon these rights
 Utilitarian thought – deterrence only works when three things are satisfied – punishment is
swift, certain and severe – killing the wrong person reduces deterrence since now it’s possible
to get away with it
 Nazi case – wife reported husband for bad-mouthing Hitler in private; law said that public
criticism must be criminalised; statute was immoral as punishment was disproportionate to
crime committed
o Hart – she followed posited law, what she was obligated to report – saying that she
can be punished for following law is an evil outcome – having a retrospective posited
law is evil, but if you concede that you are creating an exceptional circumstance, you
will know that this is only justified in certain cases, this will not be often repeated –
there is a value to doing evil clearly
o saying that the legal system did not have the force of law, when it came close to
having the formal requirements of law – doesn’t make sense, no clarity – denying the
moral dilemma – brings in a lot of confusion into what is law – positivism clears this
away and tells you what is and is not law, whereas NLT does not tell you that – Hart
says face the moral dilemma
 Special statutes – might be evil laws, might not create obligations in the fullest sense – but
still have the authority of law, because they are posited
 Hart-Fuller debate – talk about different things – Hart talks about individual laws, whereas
Fuller talks about the system – but this is how these theories view the law – NLT has always
been concerned with the bigger picture, with the law as a system which is progressing
towards the society which we wish to achieve
 Fuller – Hart’s criticism on Radbruch – confront the question as to whether the Nazi legal
system was a legal system at all – this system was in a habit of passing retrospective statutes,
secret laws – for the most evil things in the regime there was no record of it ever being law,
might have been word of Hitler – can a system that works in this manner be called a legal
system – does it fulfil the basic conditions, whatever they are – should a judge go through
Nazi files and ascertain what was and was not passed / posited as law – and so to disregard
the statute under which the woman complained is not to disregard law, but rather saying that
it never had the force of law
 Law must necessarily take into account the difference between order and
good(/just/merciful) order – if you just view the law as a descriptive term you can never take
into account the aim that law had, as a social instrument to achieve certain things – law must
 exist to create good order – Nazi Germany had order, just not good order – just because
something has formal recognition doesn’t mean it becomes a legal system – would things
passed in secret or some man’s word, would that have the force of law, and be part of a legal
order – cannot restrict it to creating order, but needs to create a good order
 Hart – wants to define what law is || Fuller – looks at the legal system as a whole
 Hart – you can achieve the most evil and pernicious ends by way of a perfectly good order ||
Fuller – let’s assume that the judge is hell bent on doing evil – is it more likely that the judge
will reach this point by following general/legal principles, or not? – if the former, it is more
likely that he will achieve an equitable result – if a judge wants to achieve evil, he is more
likely to do so by ignoring/disregarding these principles and their normative values –
generally these principles lead to good results, if you want to achieve evil you mostly start by
disregarding them – even the most evil regime will hesitate to write down evil laws, at least
in theory they will accept these principles as being there
 Eg: Citizenship Amendment Bill
o Hart – evil coherent design
o Fuller – look at the application – the judge if he has to apply this and reach a humane
outcome, he will look at principles (posited or otherwise)
 Fuller – generality limits the evil that you can do – the moment you derogate from it, it’s
easier to achieve evil
 Ameliorated goals – have to be achieved by general law, without resorting to special law –
SC/ST Atrocities Act – tweaks to move towards equity can be achieved without a special
statute – not to say that if you derogate from even one of these principles your legal system
will cease to exist
 The moment you concede that these moral principles exist in law, they tie you down –
because you cannot say out loud that you are doing evil things and derogating from these
principles
 Hart – says the content of the laws being evil cannot make them not law || Fuller – when he
speaks about these characteristics of the legal system, he also doesn’t look at the content of
the laws, he looks at what he has identified as inner morality of law – retrospective laws, laws
passed in secret, the method of passing legislation which was clearly evil – these institutions
of law weren’t even necessary in Nazi Germany, they could just ask Nazi Party workers – a
system like this cannot create law, and hence laws created by this system cannot create a
legal system
 Conceptual difference between positivism and NLT – the way law is looked at
o positivism – looking at law as purely a physical phenomenon with a set of rules
o NLT – look at law as a continuing enterprise that puts into action collective/good
goals and aims, then you’ll look at the inner morality of law, how it is legislated –
looks at law in a holistic manner, as purporting social aims
 Radbruch – clearly saw that the overreliance on positivism led to the system breaking down –
lawyers and courts were the first barriers, should have asked the right questions to power,
find out the end goal of the government, and whether this is justifiable – German courts and
the legal system were unable to do this because they had internalised the formalistic idea that
if something was laid down it must be adhered to, doing a purely logical analysis without
looking into how this law had come into being, what its purpose was – and if law is a social
instrument you cannot be restricted to a formal analysis – formalism is a vice promoted by
legal positivism
 Hart denies this charge of positivism being formalistic – also shows how judges not being
formalistic does not necessarily mean that they will be moral – being formalistic and non-
formalistic are both value neutral – if you have an evil judge, you’d rather he be formalistic,
and tied down by positive law
 Eg: PIL movement – lowered procedural barriers (no filing, no IEA) to encourage greater
access to SC – need for locus standi (person to be well-versed with the matter and argue it to
the best of their capability) – acceptance of PIL movement reflects activism in law – non-
formalistic view taken of the matter – this doesn’t mean justice will be reached
 On penumbra:
o Hart – looks at penumbra in a linguistic sense, some words having fixed meanings
and others having vague meanings – sees it as an exceptional circumstance
o Fuller – says that each word is placed in a statute in a specific context, without which
you cannot understand what the statute is doing – always need to keep statute in mind
while interpreting law, not just in exceptional circumstances of penumbra – while
looking at context you inherently look at social aims and goals of the law
 Two concepts differentiated by Fuller – distinguish between order and good order – the
purpose of NLT is to ensure that order created by law is good order, whereas LP will be
content with order – good order is got from the legal system complying with morality, having
fixed principles it cannot violate – seen in Constitutions, where values are posited in some
ways, not posited out of agreement, posited because society, if allowed to violate them, will
 violate them which will lead to a collapse of the legal system (eg: secularism as a principle) –
these values exist as a limitation to posited law, and exist to guide judges and law makers –
this limitation makes it a good order
 Any legal system should have the basic principles of certainty, predictability, clarity – but
NLT takes it a step forward, says that the order created must be good, and values apart from
these procedural values (just, fair, equal, etc) are also part of the good order.
 Hart – reasons are also important but because they stem from a social condition, not from
“morality”
 Good order always provides for a channel of dissent – does not suppress it
 “morality” – doesn’t have to be an esoteric, exotic principle – it can be simple basic
principles – limitations on what the law can do, not talking about legal validity, but looking at
a legal system as a whole and the validity of the system – invalid if it lacks some of these
basic principles – more than just the existence of law
 classical NLT – look at the law as having a specific purpose or set of purposes – to give
effect human reason and capability – assuming that human beings want certain universal
things – purpose of law is integral human fulfilment
 modern NLT – law as having some basic values – eg: fairness, achieved through things like
reasonable procedure, general law, no retrospectivity, etc.
 legal positivist – need not say that in any sense the law has a higher purpose – might have a
purpose that social convention wants it fulfilled, there might also be no purpose – we can
choose which social conventions to recognise or discard – a necessary connection is not
required with morality – law fulfills what social convention tells it to fulfill
 ELPs – no link between law and morality other than a historical coincidence – Austin talks
more about ELP
 Finnis – law as a conceptual idea being dictated by something that has to pronounce it as so

LAL ZENDA COAL MINES CASE

Compulsory contribution made from worker’s salary to the PMRF – claim that this is unauthorized,
legally – Steering Committee made this decision – whether written authorization is required for this
deduction

Can it be said that workers constructively gave assent to this decision?

  para 11 – the Union supported the decision, though it might not have been party to decision
making
 Wages Act S.7(2)(b) – says that written permission is required for every single wage
deduction – this is the legal issue here – whether this has been complied with or not – this
compliance is not there – in which case this deduction is unauthorized and should be undone
– but this money has already been sent to the PMRF which means management has to refund
them – unlike to be done
 not a formalist application, no basic logical reasoning followed

SC instead looks at fraternity and fundamental duties

 is this a moral application?

 is this a justiciable application of law, by using the Preamble and Fundamental Duties
 who is the Preamble meant for? Does it create obligations? Who does it create obligations for
– the people or the State?
 Consider the time interval – the facts occurred in 1998, this case was decided in 2014 –
impractical to return this amount
 But such a reasoning opens gates for misuse
 administrative convenience?
 can argue the constitutional right of right to property – cannot be taken away in a manner
contrary to law

Hart

 separation of law and morality – morality must only be brought in in case of a penumbra,
which this case does not have – the law must be followed
 but what if we say that what is posited in the Constitution, these values must also be
considered law – fundamental duties and preamble are non-justiciable rights – just because
principles are posited in law, doesn’t mean they apply in all situations with equal force –
general principles in the Constitution are not justiciable, their purpose is to guide official
action towards its realization
 is fraternity an open textured word – does this word lead to a penumbra?
o possibly not, because the problem here is whether fraternity should be applied in this
case, rather than the meaning of fraternity
o it can be said that there is clarity as to the meaning of fraternity used
  by filing this case as a writ petition in the HC, instead of at the labour court, the parties
themselves widened the scope of the problem – the remedy they wanted would’ve easily been
got from a labour court – but by going to HC, have they brought it upon themselves – by
choosing the forum, have they necessitated the HC to look into these things, thus allowing for
the penumbra
 just because it’s a constitutional law case, doesn’t mean that the judge can bring in principles
that haven’t even been argued upon, but when arguing 14 and 15 are you not opening up the
court to apply substantively the law of equality, which has within it fraternity – courts have
done this before, establishing fraternity starts with equality
 if there is no question of penumbra here, then the rules of logic are sufficient to decide this
case – law qua law has authority, apply this law honestly, don’t look at anything else – this
case is fully satisfied by a formalist application of law – what judges are doing is a non-
formalist application of law in a situation that doesn’t demand it – not a penumbral case
 “formalism is a vice of legal positivism” – this case shows that just because a judge abandons
formalism, doesn’t take you any closer to a more moral result, or the right result, in this case
the judges have reached an iniquitous result – sometimes for law to be clear, and predictable,
you need law to be followed in a formalistic manner – in this case a formalistic approach
would lead to an equitable result, where as a worker your wages will only be deducted under
certain conditions and not otherwise and this right would not be snatched away from you
 generally speaking can say that secondary rule is higher placed above a primary rule because
a secondary rule dictates how a primary rule is to be applied


Fuller

 legal reasoning shouldn’t violate existing law

 harmonious construction of statute with morality
 When a legal procedure is not followed, makes achievement of evil outcomes easier – but this
applies to judges
 a general result should follow from the application of a general law – here there is a
derogation from this generality – procedure not followed, the procedure too must be moral
 this morality is the inner morality of law – which includes basic principles of certainty,
consistency and predictability, along with generality – the law tells us in this case that there is
 a procedure that must be followed generally speaking, that procedure has not been followed
in this case – the court is effectively carving out an exception to the applicability of general
law, this takes away from generality, but it also takes away from predictability and certainty –
you don’t know as a worker how your wages might get deducted – the procedural
requirement is effectively being done away with – you lose an entitlement to the full part of
your wages – taking away from the general applicability of statute – values that a legal
system should generally adhere to – the Bombay HC is derogating from these values in its
judgement

MR X V HOSPITAL Z
Mr.X went to the Consumer Court - dismissed the case saying that an alternative remedy was
available at the civil court - most likely that he appealed this at a civil court, rather than looking for
alternative remedy since there’s no mention of a lower court discussing this on merit - Case comes
up before the SC in appeal

Appellate jurisdiction of SC - challenging the decision of lower courts - you can decide what grounds
you wish to bring up in appeal - ideally you wouldn’t bring up points that have already been held in
your favour

Grounds raised in appeal:

1. Breach of duty of care of medical professionals which includes confidentiality

2. Breach of the right of privacy of the patient
3. Right to marry 

Relief sought - compensation, which is probably why he went under COPRA

Confidentiality

 There is a duty to maintain confidentiality, and the doctor should not reveal except by order
of the court - as per Code of Medical Ethics - this is the only exception in India, by order of
court
 In Britain - the exception is when there is a risk to a third person, then you can disclose (harm
principle) - a sexual partner would fall under this - this is a justifiable exception to
confidentiality
 The court applies the British exception in India
 IEA, S.57(2) - the Courts must take judicial notice of laws passed by UK Parliament - but
judicial notice doesn’t mean that it holds binding value
  Is it justifiable that the Hospital went and informed the fiance, without informing the patient
himself first - breach of confidentiality only arises if you inform third-parties - should’ve at
least given him a chance to take care of these things himself
 what about if they informed through public notice to everyone - would that be justifiable,
since that is also informing anyone who might be at risk
 Does S.269 which shows that there is a risk of not informing, does this give the obligation to
the hospital to give public notice? - doesn’t make sense as per proportionality - proper
reading of S.269 is that you inform the patient - then it’s the patient’s responsibility to not
spread that disease - assume that an adult person is capable of acting rationally and
reasonably 
 But the court does no analysis of how this exception is justifiable - whether the
proportionality principle was followed 
 What if Ms.Y was the wife?

Privacy argument – Article 21

 Art.21 – not an absolute right – so privacy under Art.21 cannot be absolute

 but Art.21 doesn’t have a restriction in the text of the article itself, “procedure established by
law” is simply telling you how the Art.21 right operates, it’s the procedure to impose
restriction, not a restriction in itself – this gives 21 a lot more scope for restriction, unlike 19
which has set grounds for restrictions – conceptually, there are external restrictions
 Privacy – evolution of the concept is intricately tied with criminal law, because that’s the
sphere where the State usually interfered
o initially concerned with search and seizure of property – so if you had no property,
privacy would not apply – Omsted v US overruled by Katz v US – said privacy is not
necessarily concerned with privacy – looked at whether you expected privacy, and
that was a reasonable expectation, it would be protected – changed from objects to
reasonable expectation
o at its core level, privacy inheres not in objects, but in persons – certain areas where
one expects privacy – it is an aspect of personality that you do not give up, even
though people can observe and deduce it will remain private
o 2009 Naz case – used this kind of reasoning – said that 377 will not apply to acts done
by adults in private – which takes us a step back wrt privacy – public acts would still
 come under 377 – but you have obscenity to cover this – Navtej Singh Johar doesn’t
have this qualification in the judgement
o doesn’t have to be in objects, property, etc – it is a right that inheres in personality
 what do you say you can reasonably expect privacy in? – earlier when it was connected to
property, it depended on the nature of the space you occupied, whether you could occupy a
private sphere – now privacy goes beyond that, it stays with you even if you occupy a public
space
 one aspect looks at the criminal law aspect, another looks at constitutional contours – how do
we come to the conclusion that it comes within life and personal liberty – CAD contains a
negation to it being incorporated

Would this action be maintainable if it was against a private hospital? Should the court even hear
the Article 21 argument? As a lawyer should you make it?

 if you can colour the exercise as state action, then it’s fine – 21 will apply
 21 does not say it’s maintainable only against State, unlike, say 15, doesn’t use the word
State as given under Art.12
 21 – only allows for this to be done as per “procedure established by law” – only way out of
21 is through State action, so State action must be looked at
 we don’t generally ask for constitutional remedies against private individuals – what remedy
will we ask for, if the court can’t issue a writ – here, compensation was asked for, injunction
can also be asked for – but all this comes after maintainability
 here 21 is not being used to argue a violation, but rather using these principles to show the
unreasonableness of these actions – a writ is not being asked for – 21 is only being used for
persuasive value
 but would you make this argument as a lawyer?
o you don’t get a remedy under this argument, so why make it – there’s no damage
under 21 so you can’t get compensation under 21
o 21 can be used to say that this principle of confidentiality in the Medical Code is a
principle embodied in our Constitution – but here aren’t you stretching the limits of
21, since 21 isn’t a right you don’t have here in the first place so how can you
compare?
 would you make this prior to Puttaswamy?
o Puttaswamy framed the right of privacy in a more concrete sense
 Claim of appellant – privacy includes the safeguard of privacy of family, marriage, procreation,
etc – this is violated due to the knowledge of HIV

 Courts understand 21 as a limited right – factors of restrictions are judicially made even
though 21 has no restrictions – uses the limitation of health/morals/protection of rights of
others – disclosing the information is fine
 No sense of proportionality – you can say that privacy is limited but the hospital still went
beyond what it should have reasonably done – still should have informed Mr.X first – the
court is agreeing that any action is justified as long as its relevant to a limitation – then what’s
the point of privacy
 when you read in a right within Art.21, are you reading in the right at the same level or at a
lower level? Can you expect the same level of protection? – if it is inherent in 21, it must be
protected at the same level

Right to marry

 is there such a right? – right to marry is being claimed to against the govt, but generally –
duty to not infringe on the exercise of this right
 court says that right to marry and duty to inform are vested in the same person – this is
meaningless, how can a right and corresponding duty be vested in the same person
 given that venereal disease is a ground to divorce, only healthy, able-bodied persons have
the right to marry – and this person, as someone with HIV, doesn’t have that right
 purpose of marriage is sex and procreation – but here sex would affect Ms.Y according to the
judge – court is looking at the institution in a moralistic sense – also suggesting that the
deception would continue
 if there is a duty to inform, must an opportunity to inform be given?
 since this is a no-fault (frustration) ground for divorce, you don’t lose the right to divorce,
even if at the time of marriage you knew and agreed
 court says that you have the right to marry only upon completing certain conditions,
including disclosure – you didn’t fulfil that
 how do rights of X and Y come into conflict given that this case is only against the hospital –
the court has the end-goal in sight, where they think the hospital did the right thing, and to
justify that is brining Y’s rights into the case

ELP – one exception in code of ethics, not following that exception, unacceptable.
ILP – no penumbra in the ethics rule – does penumbra only apply for Courts who have to interpret
and apply the law, is it only for officials,

The judge definitely sees morals as part of law, and as guiding legal principles – so not positivist

Does the judge look at critical or conventional morality?

 Marriage as per Finnis is a social institution for the purpose of procreation that must be
protected – uses this to exclude people who cannot form these bonds or partake in these
activities – for him this is critical morality
 Is marriage being talked about in the same way here?

The court is weighing the rights of Mr.X against that of Ms.Y – even though this is only an action
against the Hospital, not really before the court to adjudicate – Easy way out for adjudicatory body –
pitching rights against rights – reach a middle ground – throughout this case the court juxtaposes the
rights of Mr. X against that of Ms.Y – common thread of analysis in all three grounds

The court loses out on any sense of proportionality:

 looking at what the Hospital should have done – but this analysis is completely missing from
the judgement
 Mr.X’s diagnosis as a HIV patient was not confirmed at this point – it’s confirmed only
subsequently – this is also a question of proportionality – this cannot be the reaction to the
possibility of HIV
 Art.21 – subject to certain limits – the limits stem from contrary rights of Ms.Y
 right to marry – nothing in law to say that a person suffering from HIV cannot marry – not a
qualification to be free of disease in order to marry – the occurrence of a venereal disease
allows for divorce but that does not mean disqualification from marriage
 Ms.Y was not a necessary party in this litigation, he is not seeking any remedy against her

What should the court have looked at – whether the Hospital acted negligently – the appellant also
should not have invoked an Art.21 ground, but stuck to the COPRA ground, he widened the grounds
– but still where does Ms.Y rights come in?

Can it be said that we will look at the reasonableness of the Hospital’s action in regard to her rights –
but the Hospital had no right or duty towards her, she was not associated with the Hospital in any
way

Art.21 argument – where is the question of reading in restrictions, even the concept of privacy is
unclear – no logical analysis of what the law is, and how it applies to this case
The court is just balancing contrary rights against each other in order to justify the actions of the
Hospital – privacy can be breached absolutely, or by a degree – even if you concede that public
health is a limit to privacy, you can still argue that privacy cannot be breached any way you want,
just because there is a limitation doesn’t mean any action is justified, and this action is overbroad – it
must be proportionate

Hart – if you ignore formalism, things like this will occur – no certainty that a non-formalistic line
of reasoning will reach a just outcome – were the Hospital to be held to a strict adherence of
procedure, the result would have then been just – Ms.Y has been saved, but you’re still using her
rights to reach the end goal – Irrespective of the end goal, the Hospital must be held to a strict
standard, that they will generally abide by confidentiality, and after following the right procedure,
they can then disclose the information to others

Fuller – would agree that the outcome is not just

 Ms. Y is not in question here, this case is not about her, it’s about Mr.X and his rights, you
can agree that Ms.Y had to be informed, and disagree with the procedure – his aspects of
inner morality would agree with following the right procedure
 Here the Court is also not following procedure – applying sections and limitations wherever it
finds fit
 leaves the law unclear – you don’t know what a Doctor should do in a case like this –
introducing greater vagueness into the law

Art.21 jurisprudence – comes from the PIL – no guarantee to the enforceability of these rights that
the Court comes up with under 21 – backdoor of reading into 21 limitations that are not there – there
is a clear hierarchy and difference between 21 and 19 – but conflating and confusing the two brings
you to this vagueness, brings 21 down to the level of 19 where several rights are given but none are
guaranteed, and this is the result of processes of reasoning like this
 HART-DEVLIN DEBATE
Wolfenden Committee – look into the question of whether certain crimes deserve to be retained as
crimes, or decriminalized – looked at homosexuality, and voluntary sex work – Report not accepted
immediately by English Govt, but accepted ten years later in English law – based on the harm
principle

What is the purpose that law should serve in regulating criminal behaviour, in an individual sphere of
liberty / private sphere?

Devlin – law had a legitimate function in preserving social values and fabric – if law plays a role in
protection of social convention, that is a legitimate role – social morality (capable of change) – first
social morality must change, then law can follow, not vice-versa

Hart – the function of the law is not to preserve or protect any version of society – no legitimacy in
interfering in anyone’s private affairs to preserve social morality

Devlin – what would happen if social morality collapses – would lead to the collapse of a social
order

Hart – there must be a clear and perceptible harm which this regulation seeks to prevent – cannot
speculate and say that this regulation is to prevent the ultimate disintegration of society – direct link
must be established, if you cannot do that, the default must be for the law to step back and grant
liberty – law cannot intrude a sphere of liberty without justification and identifying a particular harm
that this legislation seeks to prevent

Devlin – says that the harm is to society – but Hart is looking for a particular harm – the crux of the
debate is how do you understand harm in this case – liberty v law

Devlin – laws by their very nature are not individual-specific – it may locate a victim but this is not
necessary – laws exist to preserve social norms, need not justify itself of any additional ground than
this – looks at conventional morality, which is susceptible to change

Andrew von Hersh – two aspects of criminal punishment – harsh punishment, and public censure

What is Devlin actually saying? – the law may be used in particular aspects where its use can
preserve social convention and social mores – the transgression of social mores can be considered
justifiably a criminal offence – the law as an instrumentality can be used to help preserve what
society is – different forms of law do that, eg: family law (gives you a great amount of privilege –
testamentary privilege, property inheritance, taxation privileges) – gives structure to society and that
structure remains constant, and this structure is because of law – Devlin claims that law in general
plays this role, and criminal law playing this role is justified – he does not recognise, as a
conceptional limit, that there are private spheres where criminal law does not have a hold – criminal
law regulates all kinds of things, including thought (mens rea)

The question here is whether you can identify a conceptual limit to criminal law, or can it be, as
Devlin says, criminal law can dictate whatever society wants it to?

You have the State on one side and a sphere of privacy on the other – liberty v law – Because of this
context we have thought of this debate in terms of liberty – and this is where the harm principle
comes from – Devlin says there is no need to look at the harm or the benefit – criminal law just
needs to be looked at in terms of preservation of social mores, and not from the perspective of liberty

Devlin – nuanced approach to criminal sentencing – it is always a moral question to decide the extent
to which someone is sentenced – for Hart, sentencing is not a moral question at all

Harm principle

 does this mean harmful to individuals, or harmful to society? – if this includes harm to
society, like crime is seen, then why can’t a harm to social convention also be criminalized
 is harm sufficient for something to be criminalized?
 what about the possibility of harm – should that also be criminalized
 mala in se (crime in itself) v mala prohibita (crime because it is prohibited)

What is and is not justified criminalization? Is there a limit to what society can collectively
criminalise? If positivists themselves say that law can arise from social conventions, what if society
decides to criminalise private behaviour? What is wrongful?

Gardner – it should be criminalized because society would be worse off without criminalization – if
you are looking at it this way, are you not conceding to Devlin’s point that what is worse off must be
decided based on its effect on society

Obergefell v Hodges – dissenting opinion by Justice Scullia – looked at intention of framers to

give meaning to the Constitution – the debate in society is whether the institution of marriage
should be changed to include same-sex marriage – it is possible that society and public opinion
will change its views, and you’re not giving them this chance to change – you’re shutting the
debate down for them
If social conventions or morality changes, laws will change accordingly – if social mores evolve to a
point where society thinks that the law cannot go into the private sphere, then the law will change at
that point – how can you conceptually limit the law without society agreeing to this

Hart – centres his debate around the harm principle – that’s his only response – conceptually whether
or not criminal law has inherent limitations is not clear from his response – how do you reason out
the corollary that what is not harmful should not be criminalized

Where will you place limits on what the law can regulate?

Harm is seen as identifiable harm – this is used as the principle to place limits – add to this the
concept of wrongfulness

But if you go into this debate ignoring liberty as an underlying perspective, then the answer is
unclear – Feinberg adds to harm the concept of wrongfulness – but wrongfulness will also be based
on social conceptions, what Devlin is basically talking about

Hart pushes the burden onto Devlin by assuming liberty, and asking him to prove what can justify
breaching liberty

Eg: Adultery or sex work as a crime – the harm here can be identified as a harm to the institution of
marriage – which is a very remote harm – but if society decides that these harms are enough, then
society can regulate it

What Devlin is trying to protect is social morality, as opposed to critical morality (moral principles
which are universal truths, independent of human choice and do not change because humans don’t
recognise them) – Devlin leaves this unclear, as to what morality he’s trying to protect

But there’s no need to go all the way to morals – even in a positivistic approach, law arises from
social conventions – Devlin’s only point is that the law can act in accordance with social conventions

Hart’s problem with this is that it leaves no room for liberty – the law should be restricted in the
private sphere – Devlin also says that generally law should allow for liberty, but for Devlin this is not
a conceptual limitation or restriction upon law

Where is the argument coming from that the law cannot proceed into the private sphere – the harm
principle argument is one of policy, but it is not a complete answer to what Devlin is saying – can
society use law to preserve its conventions or not, can law be used to enforce these conventions, is it
a valid exercise to do this?
There is nothing inherent in the law that acts as a limit to what the law may or may not be able to do
– the harm principle is an inadequate understanding of the grounding of criminal law – it can serve as
a guide that is generally applicable, but it doesn’t answer the question in theory

When we talk about the harm principle, we don’t look at structural, institutional harm, remote harm
caused across generations – the harm is not manifested immediately in these cases – but, regardless,
routinely, the law locates areas it has to regulate, harm or no harm

What function does criminal law play in society? Does it modify or change society? Why do you
insist on criminalizing a certain wrong, eg: untouchability? – when you locate the function of
criminal law in this sense, you have to consider its other aspects (not just individual liberty v state
power) – in this context, criminal law is empowering, where a minority can persecute someone for a
practice that is demeaning to them

If you include within harm, harm to others and to oneself, then paternalism is justified – but there’s
still a blurry line on what harm is

Social conventions are more often than not unjust and anti-minority – if allowed to perpetuate they
will always perpetuate, especially if backed by law – most social conventions don’t change on their
own, they have to be changed, by law

Eg: Codification of Hindu law – difference between law and convention was heightened – here very
clearly the law altered social convention – generally speaking Devlin would be okay with this as it
was the opinion of informed people

Conceptually, it is yet to be located what the limitations on law should be – if we look at criminal
law as the ultimate tool of the State against citizens, then we will agree with Hart on that there should
be a harm principle – but conceptually, what should be the limitation?