Hart-Fuller Debate

- The Questions:
 Should Law operate strictly on statutes, or should it be based on morality and ethics?
 One is not held legally accountable if does not follow moral principles. So, should
morality be enforced by the law? If laws did not reflect moral principles, would they still
be binding? And is disobedience of bad laws morally justified?
- Law has three elements: Sovereign Body, Command, Sanctions
 Sovereign Body – entity that creates and enforces the law, who demands obedience
from its subjects.
 Command – the rule that the sovereign enforces.
 Sanctions – the evil that comes after the violation of the law. Penalties

Hart

- Hart is a positivist.
- Hart acknowledges the concrete relationship between morality and law, but the existence of a
legal system is never contingent with whether or not the law adheres to moral criteria. It is not
necessary for a legal structure to adhere to morals.
- Hart says that the Rule of Recognition is the overarching principle of the legal system.
- Rule of Recognition: The ultimate criteria of validity in the legal system. Basically, it resolves
doubts and disagreements by adhering to the primary rules which marks them as binding.
- Hart’s stance is that morals should not be a deciding factor in the legal system but the primary
rules.

Fuller

- Fuller is the naturalist.

- Believes that legal procedures are based on just principles that include ethical components.
- Legislation must pass a moral functional test before it can be termed a law in the genuine sense.
- Methods embedded in the legal systems are “ethically significant” in assessing whether a set of
laws qualifies as a law system or not.
- He desires that lawmakers recognize other alternative paths for the attainment of society’s aim
than just using the law as a mechanism (Hart’s ideology)
- Not every mandate with the capacity to enforce compliance can be recognized as a law, it must
be morally right first.

The Nazi Informer Case

- Wife reported husband for opposing war strategy of Hitler.

- Husband was found guilty and sentenced to death, but later commuted to the military, survived
the war, and began legal actions against wife.
 - Wife’s defense was the husband violated the Enabling Act of July 12, 1934, enacted by the
German Reichstag, to allow Hitler’s words and or will to be the law. (He can issue decrees
contradictory to the German Constitution).
- German courts allowed morality to into their judgement and declared wife guilty for doing the
contrary to the clear conscience and “sense of justice” that is present in ordinary human beings.

Hart’s arguments

- Discarded the judgement of German court stating that the Nazi laws were already actual laws
since they were established under the German Reichstag’s Enabling Act (The Rule of
Recognition), no matter how terrible and horrific they were.
- Two choices: Let the wife free, because the legislation shielded her, or repeal the law in which
she claimed protection.
- Critiqued the Supreme Court for using the idea of “morality” to decide that the wife’s conduct
was unjust.

Fuller’s arguments

- Accepted the court’s decision, for it fosters regard for morality and making illegal laws illegal.
- All laws made during the Nazi regime were non-laws. Because the Nazi dictatorship was anti-
moral.
- Nazi laws lacked the sensibility and morality essential in the legislative procedure, which gave
them authority, and made them mandatory to follow.

Conclusion

- Even with the rule of law in place to resolve major issues and conflicts the courts face, it is
impossible to put every clause and situation for every issue in the statute.
- Hence, the discretion of the judges comes into frame where ethics play a vital role to impart
justice.
- If legislation is to be embraced by the public, then it must comply with the desired behavior
pattern wherein morals determine these norms.
- Morals are subjective from time to time, society evolves. Hence even with rule of law being
supreme, societies are changing fast, and the goal of law is to maintain order in the behavior of
human beings.
- In a positivist view: Laws don’t always have good justifications; some are just bad. But to
resolve this, there needs to be human intervention. Orders should be given, rules to be applied,
decisions to be taken, customs to emerge, or justifications to be endorsed or asserted.