GROUP TWO

A REVIEW ON POSITIVISM AND FIDELITY TO LAW; A REPLY TO PROFESSOR HART

When it comes to positivism and fidelity there is an interesting debate between Professor Fuller and
Professor Hart. Professor Fuller critiques Professor Hart’s positivist take on the topic “Positivism and the
separation of law and morals”. According to Professor Hart, fidelity to law is about obeying legal systems
and its established norms regardless of personal beliefs or morality. His argument highlights the
significance of Legal precision and predictability.

Fuller argues that fidelity to the law requires not just following the strict interpretation of the law but
also understanding its importance. The essay below seeks to delve into Professor Fuller’s response to
Professor Hart’s arguments on the topic “Positivism and the separation of laws and morals”

Legal positivism is the approach in the philosophy of law which treats positive law (law laid down in
human societies through human decisions) as a distinct phenomenon, susceptible of analysis and
description independently of morality, divine law or mere reality. (From Routledge Encyclopedia of
philosophy)

Hart’s arguments defends positivism’s position that legal validity is determined solely by social facts,
rather than moral considerations. Professor Fuller argues that fidelity to law does not necessarily imply
moral obligation, and that positivism provides a more accurate understanding of legal systems and their
operation. Positivism views the relationship between law and morality as separate and distinct.
According to Professor Hart, law and morality are two separate spheres that should not be merged. He
makes a claim on “what is and what ought to be”. In this case, he refers to the law as what is and
morality as what ought to be. “What is”, being legal rules that facilitate human conducts and morality as
“what it ought to be” being set of principles and beliefs about what is right or wrong.

Professor Hart believes that morality undermines fidelity to law as law is often more specific whiles
morality can vary among people and can be interpreted differently by each individual. Strictly Following
the law ensures that judges and law professionals do not have to concern themselves with general
moral obligation in pursuit of what is right or wrong in the implementation of the law thus relieving
them of the burden of having to choose to strictly follow the law or their moral beliefs, this process
allows them to perform their duties without fear or favour

Even though Professor Hart makes strong positivists arguments we find shortcomings with his positivist
ideologies. The positivist school of thought does not factorize any other school of thought in the
implementation of law and undermines the importance of the factor of moral obligation that compels
individuals in the society to obey said laws. For example, some argue that Legal Positivism can lead to a
rigid and inflexible legal system that fails to address the changing needs of society.
Additionally it may prioritize the interest of those in power over the rights and wellbeing of individuals.
For example, in the years before the Nazi regime the positivistic philosophy had achieved in Germany a
standing such as it enjoyed in no other country. This allowed Adolf Hitler to make laws which were
without moral standards after his rise to power leading to a genocide Jewish migrants in the country

Professor Fuller’s arguments have had several positive effects. For example, His arguments have
encouraged people to analyze and engage with legal concepts. His arguments have also challenged
traditional perspectives, pushing for a more inclusive understanding of the law by emphasizing the
importance of moral obligation.

Fuller’s argument have highlighted the need for a deeper connection between positivism and moral
considerations. This has led to a better understanding of legal validity and the role morality in enforcing
the law. For example his ideas have inspired creativity and innovative thinking in legal scholarship.

In conclusion, positivism does not necessarily undermine fidelity to law but rather provides a structure
for understanding the law. Legal certainty and predictability is important in the implementation of law in
society as it provides clarity in legal decision making while Professor Fuller’s arguments have had a
positive influence on legal communication, promoting a more understanding of the law and its
relationship with morality. Fidelity to law can better be achieved through obedience to set legal rules
and principles in cohesion with morality when needed.