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 law, coercion and morality and to try to
clarify whether laws are coercive orders or moral commands. Hart states in this
book that there is no logical connection between law and morality and to
conceptualise the law as all coercion orders or moral commands would to
oversimply and impose misleading uniformity upon different types of Law. Therefore,
he makes it clear within this text that law and morality should remain
separate. In Hart’s Holmes lecture he claims that, “there is no necessary
connection between law and morals2.” Hart doesn’t believe it
is able to define law in such a way, as to Hart laws can be rules that forbid
individuals to perform certain actions or they can impose obligations on
individuals. Or ‘enabling rules’ that dictate how we are to make a contract or
a will for example. Although, Hart states that law is able to be regarded as
coercive orders,
due to the fact that some laws do confer powers and privileges on individuals
without imposing any duties or obligations.

 

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.3 The
first criticism by Hart is Austin’s theory of command, in which he 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.
Also, the fact as previously mentioned; not all laws impose duties or
obligations they may confer powers or privileges upon people.

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Hart address Austin’s theory issue with the
Primary and Secondary rules. The secondary rules are; the rule of recognition,4 the rule of change5 and the rule of
adjudication6.
Hart describes laws that impose duties or obligations upon individuals as “primary
rules of obligation.” In order for a system of primary rules to function
effectively, “secondary rules” may be necessary in order to allow
legislators to make changes in the primary rules if the primary rules are found
to be defective or inadequate. Secondary rules may also be necessary in order
to enable courts to resolve disputes over the interpretation and application of
the 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 such7. Rules
of adjudication “empower individuals to make authoritative determinations of
the question whether on a particular occasion a primary rule has been broken8”

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.9
Hart states that the foundations of a legal system consist of adherence to, or
acceptance of, an ultimate rule of recognition by which the validity of any
primary or secondary rule may be evaluated10. If
a primary or secondary rule satisfies the criteria which are provided by the
ultimate rule of recognition, then that rule is legally valid. There are two
minimum requirements which must be satisfied in order for a legal system to
exist: 1) private citizens must generally obey the primary rules of obligation,
and 2) public officials must accept the secondary rules of recognition, change,
and adjudication as standards of official conduct11. The
‘internal’ aspects of rules is central to Hart’s approach to law12.
Hart distinguishes between the ‘external’ and ‘internal’ aspects of rules. Hart
describes the external point of view is that the observer does not necessarily
need to accept the rules of the legal system.13 The
external observer may be able to evaluate the extent to which the rules of the
legal system produce a regular pattern of conduct on the part of individuals to
whom the rules apply. The internal point of view, on the other hand, is that of
individuals who are governed by the rules of the legal system and who accept
these rules as standards of conduct14.

Hart believed that there was no necessary logical connection
between the content of law and morality and that the existence of legal rights
and duties may be devoid of any moral justification15.
Hart’s definition of legal positivism is, that it is the theory in which there
isn’t logically a connection between law and morality but describes his own
viewpoint as ‘soft positivism as he acknowledges that the rule of recognition
may consider compatibility of a rule with the moral values16.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 said17. 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 moral18.” He
warns of the danger of focusing on what law ‘ought’ to be rather than what law
is.

Lon L Fuller (720):

 

Fuller
believes in the morality of law, in his text “The Morality of Law19” he
explains the internal morality of law 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 rules20.”
To warrant that title of law however they must meet the certain criteria
relating to that function if they are to warrant the title of “Law.”21

 

The
internal morality of law analysis Fuller puts forward is in the form of his
“Eight principles of legality22”. In
which he sets these out to be (1) law must be existence not ad hoc23, in
which he means that laws should already be decided and not made up in the
moment. (2) Laws should be promulgated24, Fuller
states “a failure to publicize or make available to the affected party, the
rules he is expected to observe25” 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 made26. (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 system27. (5) Law
should not be contradictory; the various aspects must be consistent with each
other28. (6)
Laws should not require conduct beyond the abilities of those affected, it must
be possible to obey the law29. (7)
They should remain relatively constant through time. (8) There should be a
congruence between the laws announced and the laws applied30. The
laws must be applied and administered as they were stated, which gives an
obligation on who administers the law to apply it as they were decided by
Parliaments as acts and when they become rules. Fuller view is that a system of
rules that fails to satisfy these principles of legality cannot achieve law’s
essential purpose of achieving social order through
the use of rules that guide behaviour. If a system of rules was to fail to
satisfy principle two of being promulgated, publicised and principle four of
being understandable then society would be unable to understand what the laws
are and what are required. These eight principles to Fuller are internal in the
sense that they infuse morality into the legal system.  These internal principles constitute amorality,
according to Fuller, because law necessarily has positive moral value in two
respects: (1) law conduces to a state of social order and (2) does so by
respecting human autonomy because rules guide behaviour. Since no system of
rules can achieve these morally valuable objectives without minimally complying
with the principles of legality, it follows, on Fuller’s view, that they
constitute a morality.

 

Fuller conceptual naturalism is fundamentally different from
classic naturalism in the sense that he rejects the view that there are
necessary moral constraints on the procedural mechanisms by which law is made
and administered: “What I have called the internal morality of law is …
a procedural version of natural law … in the sense that it is 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”. Fuller also rejects the idea that there are infinite and
eternal principles that exist like a “brooding omnipresence in the sky31”
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
values32.

 

Interview Question/ Hart
and Fuller debate on Morality (843):

 

The
interview with Lord Justice Alan Ward33 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 A34’ case
in which it was to be decided if the conjoined
twins joined at the pelvis should be separated knowing if they were Mary would
die but would save her twin, Jodie. Ward LJ another judge
who decided this case said the court was ‘not a court of morals35’ and considered that the
operation would be lawful self-defence. This would bring back the idea of both
Hart and Fuller who disagree on the idea of the morality of law. Professor Hart in
“Law, Liberty and Morals36”
(1962).  He claimed that law should only be used to impose moral values
where the immoral conduct is causing harm
(to the person themselves or others)37. 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 a 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 in Mary’s best interest, that it was in Jodie’s
best interest, and that in any event it would be legal38. 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. As these are the kind of questions that this case
brought up. Lord Justice Alan Ward comments that “The question is simple –
do you kill one to save the other, or do you let two die? This of course is a
very difficult questions for the judges to decide but he does feel that “the
legal system was still the right place to consider such controversial ethical
and moral issues” he believes that it is for the judges and the legal system
ultimately to decide such an issue.

 

This
debate between Hart and Fuller continued 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 front39.
The wife 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
beings’ and didn’t have a legality that could support her defence she was found
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”40
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.”41
The solutions 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.” 42
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 systems43.” 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. The decision that the court 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.

 

Critical analysis (627):

 

Hart
rejects a moral traditional positivist view, in particular Austin and his
‘Command theory44’
which I agree with. Hart rejects this as he does not believe that law is simply
free standing as ‘commands of a sovereign’. Which is
not true as some laws apply to those who enacted them and confer powers and
privileges upon people. It would be simple to imply that all laws were commands
and 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 morality. 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 morality45.
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.

 

 

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”.46
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 does attempt to counter Hart’s critique by
using the illustration of the South Africa’s apartheid regime which violates
the external morality of law.47
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 these48.
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:
(190)

 

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, within this the question of morality does come into play, 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 he
did not believe that this decision should be based wholly on morals and if her
actions and the law fit in with morality.