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Within Hart’s theory, he maintains that Law
and Morality should remain separate. In one of his most famous works; ‘The
Concept of Law1′
he analysis’ the relation between that is between law, coercion and morality.

In order to try to and clarify whether laws are coercive orders or moral
commands. Hart states in this book that there is no logical connection between law
and morality, if we to conceive all laws as coercion orders or moral commands this
would be oversimplifying and it would also impose misleading uniformity upon
different types of Law. Therefore, he makes it clear within ‘The Concept of Law2’ that law and morality
should remain separate. In Hart’s Holmes lecture he claims that, “there is no
necessary connection between law and morals3.” Hart doesn’t believe it
is possible to define law in such a way as to state that they are all simply
coercive orders. As to Hart some laws are ‘enabling rules’ which dictate how we
are to make a contract or a will for example. Although, Hart does states that he
does believe law is able to be regarded as coercive orders. As mentioned previously,
the fact that some laws do confer privileges and powers upon individuals
without imposing any duties or obligations on people.

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Within Hart’s theory there are criticisms of the traditional positivism
views, such as the view brought forward by John Austin in The Province of
Jurisprudence Determined.4 The
first criticism by Hart is Austin’s theory of command. In which Hart believes
that this command is inadequate, as this theory is that law is self-standing.

Austin claims that all laws are coercive orders as the command is issued by the
sovereign with a threat of sanction or punishment and in response to this
people are usually obedient. These four concepts would allow us to understand
the law as free floating. There would be no need for morality and no scope for
it to even fit in, as it wouldn’t fit into the four concepts. There is no need
for a higher power of God or morality. However, Hart believes laws do differ
from simply being ‘commands of a sovereign’ due to the fact they can apply to
those who enacted and not to other individuals.  Also, the fact as previously mentioned; not
all laws impose duties some laws do confer powers upon people.

Hart address the issues he finds with
Austin’s theory by establishing the Primary and Secondary rules. The secondary
rules are; the rule of recognition,5 the rule of change6 and the rule of
adjudication7.

Hart states that laws which do impose duties or obligations upon individuals are “primary rules
of obligation.” For a system of primary rules to function efficiently,
“secondary rules” are in place. Due to the fact it may be necessary
to allow the legislators to make changes to primary rules if they are seen to
be defective or inadequate. Secondary rules may be necessary can be used by
courts interpret and apply primary rules. The rule of change are the rules that
empower people to create new primary rules, which not only includes
authorisation of legislative bodies but also the empowerment of individuals to
create new rights and duties through wills, trusts and such8. Rules
of adjudication “empower individuals to make authoritative determinations of
the question whether on a particular occasion a primary rule has been broken9”

 

The rule of recognition is a set of criteria by which the
officials determine which rules are and which rules are not part of the legal
system.10 Hart’s
believes that the foundations of a legal system is the adherence to and the
acceptance of an ultimate rule of recognition. In which the validity of the
primary or secondary rules can be evaluated11. If
a primary or secondary rule doesn’t satisfy the criteria which is provided by
the rule of recognition, then the rule is not legally valid. For this there are
two minimum requirements which must be first satisfied in order for a legal
system to exist; firstly, that private citizens must generally be obedient of the
primary rules of obligation. Secondly that the public officials must accept the
secondary rules of recognition, change, and adjudication as standards of
official conduct12. The ‘internal’ aspects
of rules are central to Hart’s approach to law13.

Hart distinguishes between the ‘external’ and ‘internal’ aspects of rules. As
he describes the external point of view as, the observer not necessarily needing
to accept the rules of the legal system.14 The
internal point of view is that the individuals governed by the rules must accept
these rules15. Hart does see law as
being a system of rules, however, he does believe that where there are gaps in
the system, and there is a penumbra of doubt within cases, that judges should
use their own discretion when they apply the law. As Hart does believe that
statute law and cases can be too vague16.

Hart believed that there was no necessary logical connection
between of law and morality. For Hart, the existence of legal rights and duties
may be devoid of any moral justification17.

Hart’s definition of legal positivism is, that it is the theory in which there
isn’t logically a connection between law and morality. However, he describes his
own viewpoint as ‘soft positivism’ this is due to the fact that he acknowledges
the rule of recognition may consider compatibility of a rule with morals18. Hart
does acknowledge that law and morals are bound to intersect at some point.

Which is why he believed it then becomes necessary to distinguish between what
law is and what law ought to be. According to Hart, legal interpreters should
display the truthfulness or veracity about law, by concentrating on what it
says rather than focusing on the aspect on what one wishes it to be said19. Hart states “The word ‘ought’ merely
reflects the presence of some standard of criticism; one of these standards is
a moral standard, but not all standards are moral20.” He
warns of the danger of focusing on what law ‘ought’ to be rather than what law
is.

Lon L Fuller:

 

Fuller
believes in the morality of law, in his most famous text “The Morality of Law21” he
explains the internal morality of law22 and the
obedience it imposes upon individuals. Within this he sets out a strong
argument that there is no real conceptual distinction between law and morality.

Fuller’s definition of law is a way of achieving social order by “subjecting
human conduct to the governance of rules23.” For
Fuller to warrant that title of law however they must meet the certain criteria
relating to that function if they want to be classed as law.24 The internal
morality of law analysis Fuller puts forward is in the form of his “Eight
principles of legality25”. In
which he sets them out in the following; (1) law must be existence not ad hoc26, in
which he means that laws should already be decided and not made up in the
moment. (2) Laws should be promulgated27, Fuller
states “a failure to publicize or make available to the affected party, the
rules he is expected to observe28” laws
should be widely promulgated so there is no excuse for someone to be ignorant
of the law. (3) Retroactive law making some be minimised, law should be
prospective, so law is in action from when it has been made29. (4) Laws
need to be understandable, they should be clearly stated and comprehensive and
make sense in itself and the broader sense of the legal system30. (5) Law
should not be contradictory; the various aspects must be consistent with each
other31. (6)
Laws should not require conduct beyond the abilities of those affected, it must
be possible to obey the law32. (7)
They should remain relatively constant through time. (8) There should be a
congruence between the laws announced and the laws applied33. The
laws must be applied and administered as they were stated, which gives an
obligation on who administers the law to apply it as a rule as it was
originally decided by Parliaments as an act. Fuller’s view is that a system of
rules that does not satisfy these principles cannot achieve law’s essential
purpose. Which is to achieve social order through rules
that guide behaviour. If a system of rules was to fail to satisfy principle two
of being promulgated so being well publicised and principle four of being
understandable then society would be unable to understand what the laws are and
what the laws require of them. These eight principles to Fuller are internal in
the sense that they infuse morality into the legal system.  These internal principles constitute morality,
as according to Fuller, law necessarily has positive moral values in two
respects. The first being that; law conduces to a state of social order and the
second that it does so by respecting human autonomy because rules guide behaviour34. As
Fuller states that no system of rules can achieve these morally valuable
objectives without somewhat complying with these eight principles of legality, therefore
for Fuller it is constituting morality35.

 

Fuller conceptual naturalism has fundamental differences from that
of classic naturalism. This is due to the fact that Fuller rejects the view that
there are necessary moral constraints on the procedural mechanisms by which law
is made and administered. In ‘the Morality of Law’ he states; “What I have
called the internal morality of law is in a sense a procedural version of
natural law … concerned, not with the substantive aims of legal rules, but
with the ways in which a system of rules for governing human conduct must be
constructed and administered if it is to be efficacious and at the same time
remain what it purports to be”36.

Fuller also rejects the idea that there are infinite and eternal principles
that exist like a “brooding omnipresence in the sky37”
in which he disregards natural laws as “higher laws” and likens them to, the
natural laws of carpentry. By doing this, Fuller rejects the Christian
doctrines of natural law of the seventeenth and eighteenth-century rationalist
doctrines of natural rights and does not subscribe to a system of absolute
values38.

 

Interview Question/ Hart
and Fuller debate on Morality:

 

The
interview with Lord Justice Alan Ward39 brings
up the issue of morality within law. This is due to the fact that he was one of
the judges who decided on the ‘Re A
(Children) (Conjoined Twins: Surgical Separation) 40’ case in which it was to be decided
if the conjoined twins joined at the
pelvis should be separated. Knowing that if they were Mary would die but would
save her twin, Jodie. Ward LJ another judge
who also decided this case said the court was ‘not a court of morals41’ and considered that the
operation would be lawful self-defence. This brings back up the issue that Hart
and Fuller disagree upon, the idea of the morality of law. Professor Hart in
“Law, Liberty and Morals42”  claimed that law should only be used to impose
moral values where the immoral conduct is causing harm (to the person themselves or others)43. Which
is known as a “paternalistic” approach. However, if we apply this to the case
within the interview, without this operation both twins would die. The parents
in this case refused the operation on religious grounds however by doing this operation
it would allow one of the twins to have a chance at life. Even if Hart doesn’t
think that morals should be brought into the decision and it should be based
upon law and legal reasoning, the operation went ahead based upon the fact that it was in Jodie’s best interest. Also
in any event the operation would be legal44. Fuller
would of course take into consideration the morals of the case. He may pose the
question would it be moral to kill one life to save another? Or moral to allow
both of the twins to die if the operation was not to go ahead? As these are the
kind of questions that this case brought up. Lord Justice Alan Ward comments in
the BBC article that “The question is simple – do you kill one to save the
other, or do you let two die? This of course is an extremely difficult question
for the judges to decide. However, he does feel that “the legal system was
still the right place to consider such controversial ethical and moral issues45” he
believes that it is for the judges and the legal system ultimately to decide
such an issue.

 

This
debate of morality and law between Hart and Fuller did continue for many years,
it originally started when Hart
delivered his Holmes lecture at Harvard Law School in 1957, in which it was
titled “Positivism and the Separation of Law and Morals” which was then
published in the Harvard Law Review in 1958. Fuller replied to this in his
article “Positivism and Fidelity to Law: A reply to Prof. Hart” published in
the Harvard Law Review in 1958. Which was the beginning of the famous debate
between them both. A good example of their debate is seen in the differing
opinions on the ‘Nazi Grudge case’. In which a, German women in 1944 denounced her
husband to the authorities for making insulting remarks about Hitler. He was
found guilty and sentenced to death but not executed and sent to the eastern
front46.

The wife’s defence was that she reported her husband due to the fact he
committed an offence under a Nazi statute of 1934. The court found that, the
Nazi statute, “being contrary to the sound conscience and sense of justice of
all decent human beings47”
and didn’t have a legality that could support her defence, finding her guilty.

This decision is seen as a triumph for natural law.

 

Hart’s position on this was that even
if he was to commend the courts objective of punishing this women for “an
outrageously immoral act”48
to achieve this the statute which she relied upon which has been established
since 1934 would have to be declared “not to have the force of law” which Hart
argues that “wisdom of this course must be doubted.”49
The solutions to this were, to let the women go unpunished or to introduce “a
frankly retrospective law… with a full consciousness of what was sacrificed
in securing her punishment in this way.” 50
Hart comments that “It would have made plain that in
punishing the woman a choice had to be made between two evils, that of leaving
her unpunished and that of sacrificing a very precious principle of morality
endorsed by most legal systems51.” Which is Hart’s justification
for using retrospective law to punish the women. Fuller felt that the
German courts were correct in their decision. As to Fuller the Nazi German
legal system did not meet the basic rules.52
The decision that the court made for Fuller created respect for law and
morality, by making the immoral law forbidden as being law. As the Nazi law
lacked the internal morality required in the law-making process for Fuller for
it to warrant the title of being ‘Law’

 

 

Critical analysis:

 

Hart
rejects a moral traditional positivist view, in particular Austin and his
‘Command theory53’
which I agree with. Hart rejects this as he does not believe that law is simply
free standing as ‘commands of a sovereign’. Due to
the fact that some laws apply to those who enacted them and some laws do confer
powers and privileges upon people. It would be over simplifying it to imply
that all laws were commands. Hart also acknowledges that there are times in
which morals and law will intersect as the Rule of recognition may even consider
the compatibility of a rule with morals. I find Hart’s soft positivism easier
to except as I do believe that morals can and do play apart in law and the
decisions that are made, even if not to the extent that Fuller believes.

However, the rule of recognition which is the cornerstone of Hart’s theory does
have its flaws. Fuller notes that the rule of recognition isn’t derived from
any other rules in Hart’s system and believes due to this that its inconsistent
with the separation between law and morality54.

He believes that rules must be morally good in order to be respected and felt
that the laws are ‘good’. Although Hart defends this by claiming the rule of recognition
is a source of law. Fuller believes it must reflect the moral beliefs of the
society that it will be governing. As people must think that the rules are fair
in order to make sure that people won’t break the rules. Hart tries to use the
rule of games theory to state that many games work with rules without being
connected to morality55.

However, the flaw with this is that people choose to play games however people
don’t choose to belong to society and be subject the rules. Therefore, there
still is an issue of people following rules that they don’t believe to be
morally fair towards them.

 

Fuller
does clearly set out his theory and the theory of inner morality and the ‘eight
principles’ however I can’t help but find fault within this. As Hart does point
out Fuller is in confliction between “the notions of purposive activity and
morality”.56
In which he gives an example of poising, Hart states, “is
no doubt a purposive activity, and reflections on its purpose may show that it
has internal principles”. Fuller attempts to counter argue Hart’s critique by
using the illustration of the South Africa’s apartheid regime, as this violates
the external morality of law.57
By doing this to show that is isn’t possible to commit social evil acts and
fulfil the requirements of the inner morality of law. However, in this example
if there is compliance with inner morality of law is to ensure external
morality, why does Fuller feel the need to distinguish both of these58.

If this isn’t true then Hart’s criticism would be correct, in that an immoral
or ‘evil act’ could be possible even in following the ‘eight principles’. As, as
long as the law that is (1) is in existent (2) public, as it is promulgated,
(3) not retrospective, (4) clear (5) consistent, (6) to impossible to be
complied with, (7) relatively consistent, (8) congruent. It could be committing
an evil deed and follow these principles. As Fuller fails to make the inner
morality clear that an immoral act could pass these principles. Although I do
agree with the fact that Fuller rejects a more traditional natural law theory,
as he rejects a higher law as being from ‘God’ or higher in a religious sense. As
to Fuller he concentrates on the law being held to a higher standard of
morality that unmoral laws should not be able to be laws at all.

 

 

Conclusion:

 

Both Hart and Fuller acknowledge that there
can be a connection between law and morality. Hart believes that law and
morality can intersect but that they should be separate. As for him the focus should
be on what the law is and not what law ought to be. Whereas Fuller believes
that law and morality are connected and there is no real distinction between
the two. For Fuller any law that doesn’t comply with morality or his eight
principles of law should not be classed as law. The BBC interview discussing
the ‘Re A’ case, brings up the question of, should morality come into play when
deciding a case, as this decision effects two children’s lives.  Hart and Fuller have debated on morality and
law several times which was famously seen in their views upon the Nazi informer
case. In which Fuller believed that the law she relied upon was so immoral that
it could not be classed as law. Whereas Hart did believe the best decision
would to punish her, he did not believe that this decision should be based
wholly on morals and based upon if her actions and the law fit in with
morality.  

 

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