UPSA LAW SCHOOL

FIRST SEMESTER, 2023-2024 ACADEMIC YEAR

BLAW 403: JURISPRUDENCE I
READING ASSIGNMENT

READING ASSIGNMENT 1: Read and summarize pages 348 to 840

START DATE:
END DATE: Oct 30, 2023

FULL NAME: PHILOMENA APPAW

INDEX NO:10282621

CLASS: Evening
TUTORIAL GROUP: Justice Tally Team

LECTURER: Dr. Rowland Atta-Kesson

SUBMISSION DATE: October 30, 2023

HONOR STATEMENT:
By signing below, I confirm that I have personally read and summarized this reading in not more than
3 pages as instructed, and that I did not use any artificial intelligence software.

SIGN:………………………………………
H. L. A. HART - Positivism and the Separation of Law and Morals

The third criticism of the separation of law and morals is a passionate appeal rooted in the
experiences of German thinkers during the Nazi regime. Gustav Radbruch, a former proponent of the
separation of law and morals, recanted his position after witnessing the atrocities of the Nazi regime.
He argued that morally evil laws should not be considered valid, challenging the Utilitarian
separation between law as it is and as it ought to be. Radbruch's view was that fundamental
principles of humanitarian morality should be an integral part of the concept of legality (Recht), and
any law contravening these principles should be considered invalid. This perspective was applied in
post-war German courts, where certain war criminals were punished on the grounds that the Nazi
laws they followed were morally unjust. However, the author criticizes this approach, pointing out
that declaring a statute invalid based on moral iniquity can lead to problems. It suggests that candor
is crucial in addressing such moral dilemmas. The author prefers the Utilitarian perspective, which
asserts that laws can be considered valid but too morally reprehensible to obey, a stance that is
easier for people to grasp without delving into complex philosophical debates. In essence, this
criticism underscores the importance of using plain and straightforward language when making
moral criticisms of laws and institutions, as this approach is more accessible and compelling to a
broader audience.

L. L. FULLER - Positivism and Fidelity to Law—a Reply to Professor Hart

The central issues raised in Professor Hart's essay revolve around the distinction between "order"
and "good order" within the context of law. Law represents "order," the basic structure and
organization within a legal system, while "good order" signifies law's alignment with justice, morality,
and societal ideals. This distinction highlights the challenge of defining what constitutes a functioning
order and how much moral goodness it should entail. Even when focusing exclusively on "order,"
there exists an inherent "morality of order." For example, even a selfish ruler must exercise some
level of self-restraint to ensure that their commands lead to meaningful results. The internal morality
of law is crucial for establishing a legal system, even if it is flawed. Legal positivism, which rigidly
separates "law as it is" from "law as it ought to be," proves inadequate in addressing moral
dilemmas. When judges or officials encounter conflicting moral convictions and legal obligations,
legal positivism fails to provide a resolution. The dilemma arises from this philosophical separation.
The example of the German courts during the Nazi regime and Gustav Radbruch's beliefs serves as
an illustration. They faced a moral dilemma but employed the assertion that statutes of sufficient evil
cease to be law. Legal positivism's inability to address the issue becomes evident in such situations.
The primary divergence between Professors Hart and Radbruch lies in how they frame this dilemma.
Legal positivism suggests a choice between an amoral duty to obey the law and the moral duty to do
what is right. However, this formulation lacks coherence, as it isolates the obligation to obey the law
from other moral obligations. Radbruch's perspective, on the other hand, recognizes the dilemma
more clearly, emphasizing the need to restore both respect for law and justice in post-war Germany.
He frames the issue as balancing the demands of "order" and "good order." This perspective
acknowledges the interconnectedness of these concepts and does not treat them as isolated and
conflicting demands.

F. SCHAUER The Nature of the Debate

Hart and Fuller engaged in a philosophical debate about the nature of law, particularly in common
law legal systems. The core of their disagreement pertained to the interpretation of legal rules, and
more specifically, the distinction between the core and the penumbra of these rules. Hart proposed
that the core of a rule is determined by the plain language of the rule but conceded that purpose or
intent could also play a role in defining the core. Fuller, on the other hand, argued that the purpose-
based interpretation of rules is a necessary feature of proper law and that most judges and legal
actors, especially in common law systems, would employ this approach. Their dispute also had an
empirical aspect, as Fuller claimed that purpose-driven interpretation accurately described how law
functions in most common law jurisdictions. Hart remained somewhat agnostic on this point but
seemed to suggest that Fuller might be overemphasizing the role of purpose and underestimating
the importance of plain language in legal behaviour. The example of the "no-vehicles-in-the-park"
rule exemplified their differences. The debate extended to the role of judges within the legal system.
Fuller seemed to favor judges who set aside plain language in favor of achieving just outcomes, while
Hart leaned toward a more conservative view that justice-seeking was not always part of a judge's
job description. In the end, there is no clear winner in this debate. Rather, both perspectives
contribute valuable insights into understanding the complexity of rule interpretation in modern legal
systems. The conjunction of their ideas and examples sheds light on the various aspects of law,
highlighting how both formal and purpose-driven interpretations play roles in shaping the legal
landscape. The real winner is a comprehensive understanding of rule interpretation and the diverse
nature of legal systems.

G. RADBRUCH - Statutory Lawlessness and Supra-Statutory Law

The text discusses how National Socialism, during its reign, used two maxims, "An order is an order"
and "a law is a law," to bind its followers, including soldiers and jurists. The first maxim allowed some
restrictions, stating that soldiers had no obligation to obey orders serving criminal purposes.
However, the second maxim, "a law is a law," had no restrictions. It reflected the positivistic legal
thinking that prevailed in Germany for decades, where "statutory lawlessness" was seen as a
contradiction in terms. The text goes on to discuss instances from the criminal law, particularly in the
Russian Zone, where individuals were tried for actions committed under the National Socialist
regime. It argues that many of these actions were not based on legitimate laws and that the legal
system was politicized and often devoid of justice during that time. The author criticizes positivism,
arguing that it made the German legal profession defenseless against arbitrary and criminal statutes.
They suggest that legal validity should not be solely based on power and compulsion but on values
inherent in the statute, including legal certainty, justice, and purposiveness. In cases where justice is
in conflict with legal certainty, it may be necessary to prioritize justice over statutes, especially when
statutes are unjust. The text also condemns Hitler's regime for its lack of a sense of truth and right
and wrong, which allowed it to create laws that violated the principles of justice and equality. It
claims that such statutes lack the very nature of law and are examples of "statutory lawlessness."
The text concludes by emphasizing the importance of overcoming positivism and preparing to
prevent the recurrence of such abuses in the legal system.

R. ALEXY A Defence of Radbruch’s Formula

The text discusses the issue of dealing with a past that lacks the rule of law and how it has
confronted the courts in Germany after significant historical events: in 1945 after the defeat of
National Socialism and in 1989 after the fall of the German Democratic Republic. The central
question in both cases was whether actions that were legally valid according to the laws of the
previous regime, even if they offended against fundamental principles of justice and the rule of law,
should still be considered valid today. In simpler terms, can something be considered illegal now if it
was legal in the past? The text introduces Gustav Radbruch's formula, which plays a key role in this
context. Radbruch's formula suggests that positive law loses its legal validity when its contradiction
with justice reaches an "intolerable level." It also states that when equality (the core of justice) is
deliberately disavowed in the enactment of a positive law, that law has no claim to legal status.The
text discusses the practical significance of Radbruch's formula through two examples. The first
example involves a decision by the Federal Constitutional Court regarding a law related to the Reich's
Citizenship Law of 1941. The court ruled that the law was void from the outset due to its
contradiction with justice. The second example concerns judgments related to the deaths of fugitives
on the former internal German border. The Federal Court of Justice applied Radbruch's formula,
considering whether the actions constituted an extreme injustice. The court concluded that they did,
and the soldiers were not justified under the laws of the former German Democratic Republic. These
examples illustrate how Radbruch's formula is applied in practice and the significant implications it
can have in determining the legality of actions taken during past regimes. Radbruch's formula for
dealing with unjust laws, particularly in the context of extreme injustice touches upon arguments like
the relativism argument, democracy argument, lack of necessity argument, and the candour
argument. These arguments are presented as challenges to the application of Radbruch's formula in
determining the legality of certain laws. The relativism argument questions whether there is such a
thing as extreme injustice and whether moral principles can be rationally defended or discovered. It
suggests that extreme relativism and subjectivism would undermine the anti-positivist concept of
law, as it presupposes a non-relativist ethical framework. The text cites examples of National Socialist
injustice and killings on the internal German border to illustrate the concept of extreme injustice. The
democracy argument raises concerns about judges opposing legislative decisions in the name of
justice and how this may infringe upon the separation of powers. However, it is noted that
Radbruch's formula only applies to cases of extreme injustice, and it doesn't fundamentally challenge
the legislative process in democratic states. The lack of necessity argument questions the need for
Radbruch's formula, especially after the collapse of an unjust regime when a new legislature could
rectify injustices through retroactive laws. The text acknowledges that in some cases, like that of a
Jewish emigrant's restitution, the formula may be necessary to protect fundamental rights. The
candour argument argues that Radbruch's formula can bypass the principle of "nulla poena sine
lege" (no punishment without a law) and suggests that openly pursuing retrospective criminal
legislation might be more candid. However, the text argues that the scope of application for this
argument can be narrowed and that Radbruch's formula doesn't retroactively change the legal
situation but rather determines what the legal situation was at the time of the act. Overall, these
arguments are presented as part of a broader discussion about the application of Radbruch's
formula, particularly in cases of extreme injustice and unjust laws. It concludes that, in the face of
the threshold of extreme injustice, Radbruch's formula is justifiable and necessary, even in the
domain of criminal law.

H. L. A. HART - Definition and Theory in Jurisprudence

The text discusses the challenges of defining legal words like "right," "duty," "State," or
"corporation." It emphasizes the need to consider these words in the context of sentences where
they are used to understand their meaning fully. The author argues that these legal terms have
unique features, such as being tied to specific legal rules and the existence of a legal system. They
describe conclusions of law rather than making predictions about future actions. The author suggests
that rather than trying to provide single-word definitions for these legal terms, it is more illuminating
to explain them by specifying the conditions under which sentences containing these words are true.
For instance, defining "right" involves describing the existence of a legal system, a rule imposing a
duty on someone else, and the choice given to the person with the right to enforce the duty. In
summary, the text argues that the traditional method of providing single-word definitions for legal
terms is inadequate, and instead, legal terms should be elucidated by explaining the conditions
under which they are used in sentences. This contextual approach helps to capture the specific
nature of legal language and its distinctive features.