HLA Harts’ view

 Hart is a positivist, he does not believe in the connection of law and

morality.
 Hart advocates that conformity to a certain moral standard is not required
for a legal system to exist.
 While he does acknowledge that there is a close relationship between law
and morality, but does not disagree that the development of the law has been
immensely influenced by morality.
 Hart acknowledges that law and morals are bound to intersect at some
point.
For example where a case comes up that the wordings of the relevant
statute is not sufficient - to give effect to the purpose of the law. Hart says
that such cases can be solved by way Judicial interpretation. A decision
can be made about what the law ought to be, and moral factors play a
crucial role in deciding such hard cases.
 He feels that a line should be drawn between what law should be, and what
law ought to be.
 Hart believes that officials should display truthfulness about the law by
concentrating on what it says rather than focusing on what one desires it to
say.

Fullers’ view
 Fuller is a naturalist, and he sees laws as a way of achieving social order by
regulating human behaviour through laws.
 Fuller prescribes eight standards, and says that for a PRINCIPLE TO BE
ACCEPTABLE AS LAW, it must be measured in terms of these standards.
i. The principle must be expounded in a manner so that it can be
generally applied.
 ii. Law must always be communicated to the people to whom they
are directed.
iii. Newly formed principles of law, should always be applied in a
prospective manner.
Retrospective application of law should only be permitted on rare
occasions depending upon the circumstances.
iv. There should be clarity in law.
v. Law should be free from contradictory mandates.
vi. Laws should not impose on individuals impossible standards of
action.
vii. Abiding by previously announced norms
viii. According to Fuller, for a law to attain its objectives, it must satisfy
the requirements of the prescribed norms and the actions of
individuals

[ JUST FOR INFORMATION – NO NEED TO INCLUDE IN EXAM]

 Fuller goes further to explain morality by categorising it in two;
Morality of aspiration suggests a desired norm of human conduct that
promotes his/her best interest.
Morality of duty describes the standards people follow to ensure smooth
functioning of society.
 Other forms of morality discussed by Fuller are
Internal morality of law – the concerned with procedure of law making
External morality of law - It focuses more on substance rules of law
which are applied in decision making.

Upon examining both Hart and Fullers view on what the law is and how it
relates to morality we find that Fuller’s naturalist ideals offer the most
solutions to the problems in the modern day legal system.
 An example of this is where Hart says that we should identify
what law is and what it should be, this still leaves the question, ‘why do we
obey the law?’ Is it because of the sanctions behind it? or is it, because we
accept it? As Hart believed. Would we refrain from committing rape if there
was no punishment?
On the other hand, it is believed that we may also obey law
because we believe that it is right or morally correct. People will comply with
the law only if they are convinced that the law is based on strong moral
foundations enacted for their common good.
However, the issue with principles of morality is that various
societies will have different moral principles. For example, in Muslim
countries it is considered immoral for a woman to walk outside without a hijab,
whereas in the west this is not considered immoral.
Therefore, Fuller argues that because there is no precise definition
for law and morality, it is pointless to argue that both of them are separate.

In conclusion, It is believed that there is a necessary connection between

law and morality. Although some of the arguments by hart and the positivists is
not without its merits but that is not sufficient to prove law and morality are not
connected. Law and morality are interdependent on each other.
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LAW OF OBLIGATION
Generally, the term obligation is used as commitment. It means the state of
being forced to do something because it is your duty or because of a law.
But in Jurisprudence this concept has been defined more broadly and in a
different way. It is a class of duties in the legal sense, which have corresponding
rights in personam.
 In Black’s law dictionary obligation means moral or legal duty to do or
not to do something.
According to Anson, obligation is a kind of control exercised by persons
over another for some specific act. For example, the obligation to pay a debt or
to enforce a contract or pay for damages in tort,

TYPES OF OBLIGATIONS
I. An IMPERFECT OBLIGATION refers to moral duty. It does not legally
bind parties together. There are no legal implications for failure to perform.
They relate to a higher power. For Example - gratitude and charity.
PERFECT OBLIGATION gives the right to one party to take legal
action against the other party for failure to perform. These obligations can be
moral, natural, or civil. For Example - one individual might be obligated to
pay a set amount of money to another party every month.

II. SOLE OBLIGATION - There is a person on each side. This is a normal

type of obligation in which there is one creditor and one debtor.
For Example - X promises to Y to pay $100. In this example, there is
only one creditor and only one debtor.

III. SOLIDARY OBLIGATION

In this case - there are two or more debtors who owe the same thing to the same
creditor. There are three kinds of solidary obligation;

1. SEVERAL SOLIDARY OBLIGATION – The creditor has independent

causes of action against each of the debtor. The release of one debtor does
not necessarily extinguish the obligation of the others but performance of
the obligation by one debtor will discharge the others as well.
 For Example – A lends Rs. 3000/- to B, C and D on a promise to repay the
amount. If B, C and D execute separate promisory notes each of Rs.3000/-
on the understanding that A might enforce anyone of them then – B, C, and
D have obligation on same subject matter but their sources are different.

2. JOINT SOLIDARY OBLIGATION – where there is only one single bond

binding all, the obligation is joint. The lender has only one cause of action
against the 3 debtors. The release of one debtor, without the consent of
others, operates as release of all.
For Example – B, C and D execute a single bond in favour of A for the sum
of Rs.3000/- their obligation is on same subject matter and from one source.

3. JOINT AND SEVERAL SOLIDARY OBLIGATION – in this class, it is

the option of creditor to treat the liability either as joint or as several. Under
such circumstance the person vested with the right can make any of the
several persons who are vested with the duty - to perform the duty.
In India, Under Section 43 of Indian Contract Act - we have Joint and
Several obligations.

SOURCES OF OBLIGATION
There are four sources of obligation, they are as follows:
I. OBLIGATION ARISING OUT OF CONTRACTS
 It is an obligation arising out of a contract.
 Section 2 (h) of Indian Contract Act defines contract as an agreement
enforceable by law.
 Under a contract, parties to the contract have to fulfil the obligations
made towards each other.
  Thus there are rights and duties from both the sides of the contract
which they have the obligation to perform.
 Rights arising out of contract are right in personam
 If one party is unable to perform his obligation or wilfully abstains from
performing his obligations then it amounts to breach of contract.

II. OBLIGATION ARISING OUT OF TORTS

(DELICTUAL OBLIGATION)
 These obligations arise from torts.
 Torts is a branch of law which is considered as civil wrong i.e. it is civil
in nature. For example – trespass, defamation.
 Under Torts, the duty is fixed by the law and people are accepted to
abide by such duty. When they don’t abide by their duty and cause harm
to other person then the person against whom tort is committed has a
right to claim for unliquidated damages.
 Unliquidated damages are the one wherein the amount of compensation
is not pre decided. Generally includes payment of money by way of
penalty.
 In torts parties don’t know each other, unlike contracts where parties are
well known to each other.
 Thus, under torts the obligation is for the payment of unliquidated
towards the person against whom tort is committed and such other person
has a right over unliquidated damage.

III. OBLIGATION ARISING OUT OF QUASI CONTRACTS

 Quasi contracts are the contracts (as defined earlier) but are still different.
  Quasi contracts are the one which are not created by a formal agreement
between the parties with their consent. But these contracts are created by
the intervention of the court.
 A quasi contract is a contract by fiction. It is based on equity, justice and
good concise.
 The reason behind implementation of quasi contract is that any person
who receives any type of benefit on the cost of another person then the
cost on which such benefit arose should be restored back so that no harm
is suffered by any person.
 For Example - "X" leaves his Bag at Y's house by mistake. "Y" has
Quasi-contract obligation to return it to "X"

IV. INNOMINATE OBLIGATION

 This is the residuary class of obligations – which do not fall under the
above 3 divisions.
 For Example - trustee ‘s obligation to the beneficiary. A trustee has a
fiduciary obligation with respect to the beneficiary. A trustee is made
personally liable for breach of duty which he has towards property of the
beneficiary.
Or a bailee has towards bailors
Or guardian has towards their wards.
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