thesis on the hart-fuller debate should law and morality be intertwined- dylan carty
TRANSCRIPT
1 | Page Dylan Carty.
THE HART-FULLER
DEBATE: SHOULD LAW AND MORALITY
BE MUTUALLY EXCLUSIVE OR INTERTWINED?
Dylan Carty.
2 | Page Dylan Carty.
Hart-Fuller Debate- Is there morality behind law?
After the Second World War a German woman was prosecuted for denouncing her husband
to the authorities in accordance with the anti-sedition laws of 1934 & 1938. He had made
derogatory remarks about Hitler. The husband was prosecuted and convicted of slandering
the Fuehrer, which carried the death penalty. Although sentenced to death, the husband was
not executed but was sent as a soldier to the Eastern front. He survived the war and on his
return instituted proceedings against his wife. She argued that she had not in fact committed
a crime because a court had sentenced her husband in accordance with the law of the time.
She was convicted of 'illegally depriving another of his freedom' (rechtswidrige
Freiheitsberaubung), a crime under the Penal Code, 1871, which had remained in force
throughout the Nazi period. The Nazi laws were, the court said, "contrary to the sound
conscience and sense of justice of all decent human beings," (1951).1
Abstract
My main influence in deciding upon this topic is the fact that the argument for whether or not
morality and law should be mutually exclusive, has not ceased and its origins date back to the
origins of philosophy, from the founding fathers of legal and moral philosophy themselves
(Plato, Aristotle etc,) and yet is still relevant to society today. One key component that I will
assess is the impact of totalitarian rule and the concept of the fidelity of law, (first disclosed
to me through my reading of Hannah Arendt’s Eichmann in Jerusalem,) on the application
and legitimacy of law, so as best to determine whether or not law and morality should be
intertwined. I will also briefly discuss what form of morality, if any, should hold precedence
in judicial rulings, whether it be religious morality, or as Sam Harris advocates- a morality
based on scientific reasoning from an analysis of facts and evidence. However, I will not
address extensively the non-cognitivist debate about whether or not we should refrain from
the use of ‘moral language’ in this thesis.
1. The Origins of Law and the concept of morality.
A few underlying principles and questions form the basis of legal thought and philosophy.
What classifies a law as legitimate? Is there an essential connection between the law and
morality? Can the makeup of a law debar it from being recognised a legitimate law, which
is to be obeyed and as such should laws enacted under a tyrannical regime be classed as
legitimate and obeyed? These questions have raised a debate within the field of
Jurisprudence and has been taken up by two major groups of legal theorists: Natural Law
theorists and Legal Positivists. Therefore we are left to question; Is law moral or is one’s
fate a determinant of predefined laws dictated by state or singular governance, as at first
there seems to be no distinction between law and morality. Some of the most recognised
and decorated Natural Law theorists in history, namely Aristotle, Plato, Lon L. Fuller and
St. Thomas Aquinas have argued that ‘a law is only just and legitimate if it promotes the
common good.’ However, the antithesis of this view is found in the legal school of thought
1 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press, 1983)
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named Legal Positivism. Positivists such as H.L.A Hart and Thomas Hobbes, (influenced
by the notion of the chain of connection, but also held the belief that man in his natural state
is selfish and savage and therefore a single absolute ruler is the best form of government)
believe in a differing notion, that a law is only legitimate if it has been ‘enacted through the
proper channels by someone with the absolute power to do so regardless of the content of
that law’ thus, holding no inherent need for morality- a theory similar to that John Austin
advocated for. While each theorist presents his own explanation, each seeks to answer these
crucial questions about law and its application within society.2
However, I believe that there is a potent difference between what is actually classified as
legal (or legally right) in accordance with political entities and what should be legal. What
should in fact be legal corresponds to what is morally right or just. We find therefore, a
possible distinction between conventional and natural rights. This grey area is illustrated
perfectly in Sophocles' tragedy Antigone, in which the protagonist defies royal decree (the
source of ‘legal right’ in this example) and buries her brother, to lay him to rest respectfully
and in accordance to tradition (an act one would assume to be ‘morally right’). Legal ethics,
causes many debates in and around the law, which stem from the ambiguous obligations and
purposes of law and government, ranging from societal challenges at the time, including, pre-
eminently protecting people's fundamental rights and basic liberties.
Sam Harris, a more contemporary philosopher, is a strong advocate for the dissimilarity
between true morality and the supposed ‘myth of morality’ provided by religion, in his 2010
book, The Moral Landscape. He goes on to claim that, with the proper application of
scientific reasoning and an ability to analyse factual evidence, we can access and achieve a
logical and objective moral truth. As a self-pronounced ‘New Atheist’, Sam Harris aims to
deflate the potential threat he believes religion poses to democracy and to humanity on the
whole, through its manipulation of our sociological outlook. He goes on to define, in his eyes,
the true meaning of “good”, being something which advocates the “well-being” of oneself or
others, although any further distinction is relatively ambiguous, with his definition of “bad”
being that which detracts from “well-being”3. Although not suggesting that scientists should
be the new moralists, Harris goes on to reject David Hume’s argument for an “impermeable
barrier between facts and values; that values are never objective; that we can never get an
ought from an is.” However, what Harris fails to contend, is the nature of democracy when he
suggests that we need not pay heed to those ill-equipped to interpret factual evidence and to
derive objective moral truth therefrom, as democracy in the words of Abraham Lincoln,
should be ‘of the people, by the people, [and] for the people’ 4.
Upon reflection therefore, the establishment of moral rules is evidently very expensive from a
social perspective, assuming that this occurs through socialisation and inculcation, as legal
rules can be as specific as we please because they are constructs of society. Ergo, the law can,
in principle, be adapted to promote the socially desirable and to discourage undesirable
conduct.
2 See Appendix for more on legitimacy of law (1.) 3 Sam Harris. “The Moral Landscape” Free Press; First Edition October 5, 2010 4 See Appendix for the definitions of Laws and regulations, with US court rulings on this matter. (2.)
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2. The Debate.
“Surely if we have learned anything from the history of morals it is that the thing to do with a
moral quandary is not to hide it.” —H.L.A. Hart.
In 1961, H.L.A. Hart, the ‘father of modern legal positivism’, advocated for the separability
of law and morality in The Concept of Law. Hart advocated that there ought to be a clear
distinction between the conception of law as it is and what the law should in fact be. The fact
of the matter remains, that law does not (as of yet) cease to be law due to moral criticism of it
and as such it is the role of a body with power vested in it, to decide whether or not a law
should be repealed. It is thus possible, in Hart’s eyes, to study and apply law in a descriptive
sense (how people do in fact behave), rather than a normative sense (that being how people
should behave). Therefore, his theory presents a parallel between language also, as he feels
that it is possible to utilise moral (de-ontological) language without forcefully initiating moral
claims. Hart identified that the use of terms such as ‘rights’ and ‘duties’, “need have nothing
to do with morals”. Simply put, one may use these forms of ‘moral language’ to further a
specific point or fact, without the inherent implication of labelling human behaviours to be
either ‘good’ or ‘bad’.
But, the legal positivists, even Hart conceded to the apparent overlap of law and morality,
acknowledging the power of the arguments posed by Natural Law theorists, (namely Fuller)
with regards to legal & political systems in effect both in 1940s Germany and to date. He
debated whether or not a legal system, which did not place the notion of “justice” as a
fundamental core, could be sustainable over a long period of time, as citizens living under
such a system would feel no sense of moral obligation to abide by its dictates - thus the only
examples of such systems have sprung from totalitarian regimes generally imposed by some
form of a police state. He begged the question as to whether the nature of law itself stems
from the most basic and fundamental ‘moral precepts’, such as the right to protection and
safety. However, he does not dwell or elaborate on the question, calling it an “innocent
pastime for philosophers”.
Hart reformed jurisprudence and the application of the philosophy of law in the English-
speaking world to what we know today, drawing from the influence of philosophers such as
John Austin5 and Ludwig Wittgenstein6. Hart utilised and adopted a more contemporary
analytical outlook to bear on the central problems surrounding legal theory. His method was a
hybrid of the implicit analysis of 20th-century philosophy with the jurisprudential tradition of
figures such as Jeremy Bentham7, the English legal/political philosopher, (as his theories held
less of a moral perspective.) Firstly, to understand Hart's perspective on legal theory and
philosophy, we must realise his dissatisfaction with John Austin's "Command Theory”: a
concept in jurisprudence that advocates the law is a command backed by sanctions or a threat
of sanctions and is meant to be ubiquitously applied8. Hart likened Austin's theory to ‘the role
of a gunman in a bank and tries to establish the differences between the gunman's orders and
5 See Appendix for John Austin’s legal theories. (3.) 6 See Appendix for an overview of Wittgenstein’s influences. (4.) 7 See Appendix for Bentham’s theories. (5.) 8 Austin characterised that form of lawmaking, along with the occasional legal/judicial recognition of customs
by judges, as the “tacit commands” of the sovereign, the sovereign's affirming the “orders” by its acquiescence
(Austin 1832: Lecture 1, pp. 35–36).http://plato.stanford.edu/entries/austin-john/
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those made by law.’9(As a gun-man forces us to obey and as such we may not be inclined to
obey him. Presumably however, obedience to the law should warrant a different emotional
response.)10
Hart therefore, as a legal positivist, upheld the belief there is not and should not be any
necessary relationship between a legal system and ideas of morality, for a legal system can
function effectively regardless of whether or not it is just or moral. Hitler’s Third Reich
would be a good example of this point, as it discriminated against individuals on racial
grounds, due to the rising anti-semitic beliefs and the pervading notion of the purity and
dominance of the Aryan race. In Hart’s view however, it was a legal system; Nazis on trial
later argued that racial distinctions were relevant and reflected the social sense of morality of
their society at the time, and they were therefore entitled to discriminate. Subsequently, Hart
felt it best to argue the line that whether the rules were unjust or irrational, should not affect
their status as law, demonstrating a blatant disregard for moral issues within a legal system (a
typically positivist line of argument,) for he advocated that laws should not be invalidated on
moral grounds. Instead of this, Hart believed that laws should be underpinned by set
regulations and principles, one of which being clear ‘mechanisms’ for changing them. He
observed that the Nazi law was legitimately enacted and enforced under the proxy Reichstag
at the time and thus, the wife in the ‘grudge informer’ trial should not have been punished for
following these laws (Kant’s theory of categorical imperative.) Hart argues that there should
be a clear and apparent distinction between the question of what law is and whether a law is
moral or just.
Conversely, Fuller (Natural Law theorist) maintains quite the opposite; that law and morality
cannot be classed as mutually exclusive from one another, as such upholding the decision of
post-war courts nullifying Nazi rules. In Fuller’s eyes, the Nazi system and its rules were not
‘legal’ or ‘laws’ at all, for they served only as an instrument of imposing and upholding a
tyrannical regime. Fuller’s notion of morality plays on the transparency and consistency of a
law-making process, with no laws explicitly targeting a sect of society and thus coincide with
‘natural law’ principles (like expressed generality and operating prospectively.) Yet, due to
the fact that Nazi statutes did not conform to these moral principles, Fuller advocates that the
statutes under which the ‘grudge informer’ to have been consulting upon her decision to
report her husband, are likely not to have been valid laws according to natural law. He
continues to argue that law is subject to an internal morality consisting of eight principles11,
and that no system of rules which does not adhere to these principles of legality can allow for
social order. Thus, if any of the principles become inherently transgressed in the passing of a
law, that law void of its powers of legality, no longer holds jurisdiction on that which it
purports.
These supposedly implicit principles, according to Fuller, act as a means of formulating an
internal morality within the law due to two respects: the first being that the law conduces
social order and the second being that laws should be respective of the humans which they
dictate and govern (because rules serve as a means of guiding behaviour to a level which is
9 http://en.wikipedia.org/wiki/The_Concept_of_Law 10 See Appendix for Hart’s response to Austin and Hans Kelson’s influence on Hart. (6.) 11 The rules must be expressed in general terms; the rules must be publicly promulgated; the rules must be
prospective in effect; the rules must be expressed in understandable terms; the rules must be consistent with one
another; the rules must not require conduct beyond the powers of the affected parties; the rules must not be
changed so frequently that the subject cannot rely on them; and the rules must be administered in a manner
consistent with their wording http://www.iep.utm.edu/natlaw/
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socially and morally accepted.) Fuller has argued that although Hart's distinction between
‘law' and ‘morality' is categorically a distinction inherent in the differentiation between
‘order' and ‘good order', even rudimentary inclinations of order contains, at some core level,
‘moral content', in other words, the inner morality of laws. Where this ‘inner morality’ is not
implied therefore, a law cannot be classified as a law, thus Fuller’s condemning of Nazi
statutes, which Hart failed to appreciate. Hart subsequently failed to fathom the moral
implications explicit to the creation of laws and legal systems as a means of distinguishing
what constitutes a law to be classified as a law. Therefore, the 'grudge informer' problem
serves as a means of illustrating the spatial differences of views surrounding both the nature
of law and its relationship with morality.
3. Practical application and study into Totalitarianism and legal
legitimacy.
The ‘Grudge Informer’ case is a debate about judicial obligation in light of a connection
between Kant's categorical imperative and the relationship between the rule of reciprocity
and actions coinciding with general law. I hope to show that further analysis of legal theory
in application furthers Fuller’s claim, and challenge Hart’s argument brought within the
dispute between natural law and positivism the issue of “fidelity to law”.
According to Hart in his paper ‘Positivism and the Separation of Law and Morals’, a German
court in the 1949 Bamberg trials tried a case where a woman was prosecuted for the offence
of illegally depriving her husband of his liberty, which was a crime classified in the German
Code of 1871, which had not been repealed during the Third Reich. In 1944, she had
denounced her husband to the authorities for insulting remarks he had made about Hitler
while on leave from the army. It was “apparently”, Hart says, illegal to make such remarks,
under Nazi statutes though she was under no legal obligation to denounce him. The husband
was found guilty and sentenced to death, but was in fact not executed but sent to the front.
The defence rested on the thesis that she had acted in accordance with the statutes of the time
and as such, had not committed any crime. However, the Court found her guilty of the said
offence of ‘deprivation of liberty’, despite her husband “having violated a statute”, under the
precedent that (quoting from the judgement,) the Nazi imposed statutes were “contrary to the
sound conscience and sense of justice of all decent human beings.” Hart later goes on to state
that the court’s reasoning was “hailed as a triumph of the doctrines of natural law and as
signalling the overthrow of legal positivism”- his further acknowledgement that his position
was wrong.
If we are to adopt the Court’s course of thought, and assert that “certain rules cannot be law
because of their moral iniquity”, according to Hart, we “confuse one of the most powerful,
because it is the simplest, forms of moral criticism” and as such we should say that “laws
may be laws but too evil to be obeyed”. Hart referenced this idea to Gustav Radbruch’s
famous claim of legal positivism’s attribution to the failure of lawyers to respond and
intervene adequately to the Nazis’ overt abuse of legality. Radbruch had concluded in short
post-war articles following the fall of the Third Reich, which we are to follow the suggestion
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that “extreme injustice is no law”12. Accordingly, statutes should lack the status of law when
they contend core principles of what is morally right and as such, “should not be taken into
account in working out the legal position of any given individual in particular
circumstances”.13 For Hart therefore, to avoid arguing “stark nonsense” 14one must
understand that the paradox of legal validity cannot be dictated by moral content, but
preferably, if “laws reached a certain degree of iniquity then there [is] … a plain moral
obligation to resist them and to withhold obedience”. In his thesis on Positivism and the
Separation of Law and Morals, Hart proposes John Austin’s example of the man who is
convicted of a crime punishable by death when the act he had committed was at most menial,
claiming his sentence was “contrary to the law of God”, yet his “inconclusiveness” of
reasoning according to Austin had resulted in his death, for a “law of which [he had]
impugned the validity”15.
Contrary to this, Fuller published a 1958 response to Hart, which provided a theoretical
framework which took into consideration the multi-faceted complexities of the circumstances
both the Nazi-era and the post-war justice seeking courts had faced. In Fuller’s eyes, from the
perspective of Natural Law advocates, the debate was quintessentially one on the different
ideals of “fidelity” to law and the interpretation by the people as to what was truly right. As a
result, one must consider the validity of the notion Fuller referred to as “internal morality of
law” or “inner morality of law”16. He argued that if Germans had focused on internal morality
they would have been able to maintain their fidelity to the ideal of law, (that being an
absolute interpretation of morality,) rather than fidelity to a regime dominated by an
individual. Yet what he fails to realise is the explicit pressure faced by all Germans at the
time and also the levels of devotion and loyalty to the Fuhrer, best exemplified by the trial of
Hans and Sophie Scholl, two student activists who spoke out against Hitler and his regime,
with both being sentenced to death as a result. Regardless, the fact of the matter still stands,
that in the post-war era, German judges could have dealt better with cases like that of the
grudge informer, if they had centred their efforts on the deterioration of legality.
One may find that it is only due to Fuller’s ability to see that the difficulty judges faced, was
the varying choice of ideals left to their own interpretation and application, (in a way that
sustains legality,) that he also notices both that the Nazi statutes could not be said to compel
the husband’s apparent guiltiness and that this rested on the informer’s defence that she acted
in sole accordance with the law, although it was later discovered that she held an ulterior
motive-she wanted him gone, and as such instinctively acting in a way that would prohibit his
freedom. Conversely, one may argue that Hart overlooked key fundamentals in the case, the
first being that he did not see that the case rested on interpretation, which relied on where the
allegiance of the presiding judge was placed, (whether it be in the fidelity of law, or loyalty to
the sovereign.) Secondly, that Hart dismisses issues of interpretation as in accordance to him,
it falls outside of the remit of ‘descriptive legal theory’. In this regard, Fuller rejected Hart’s
12 Gustav Radbruch, “Statutory Lawlessness and Supra Statutory Law”, (2006) 26 Oxford Journal of Legal
Studies 1. 13 See Apendix for Hart’s response to Radbruch. (7.) 14 “stark nonsense”The phrase is John Austin’s, - Austin, The Province of Jurisprudence Determined (Library of
Ideas edn., 1954) pg.185, but Hart adopts this phrase as his own. 15 HLA Hart, “Positivism and the Separation of Law and Morals”, again quoting from Austin. 16 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review
645,659
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statement that the fact that post-war court found some Nazi statutes too evil to be obeyed,
was arrogance on their behalf due to the fact that when a court “refuses to apply something it
admits to be law...moral confusion reaches its height”. Hart does not, as Fuller states,
consider the “drastic emergency” in which Radbruch and the court judges were living; for if
“legal institutions were to be rehabilitated in Germany it would not do to allow the people to
begin taking the law into their own hands, as might have occurred while the courts were
waiting for a statute”17. Germany faced a pressing need “to restore... respect for law and
respect for justice” and the attempt to “restore both at once”18.
What Hart and Radbruch therefore seem to share is an inability to appreciate the moral and
legal complexity of the situation of judges faced with an unjust law19. Dr. Hellmut O Pappe
who was a scholar who fled Nazi Germany in 1939, was another advocate for the complexity
of this legal conundrum, offering his own description of the Federal Supreme Court’s
reasoning20, that for such a citizen tainted by a regime as tyrannical as the Third Reich, the
issue of morality and legality was too complex for a theory that fixates upon two supposedly
inherent factors; what the law explicitly states and one’s conscience - to deal with. Although,
Fuller’s doubts about Pappe’s argument are expressed in The Morality of Law21, on the basis
that it was odd for post-war courts to interpret Nazi statutes in the light of their own standards
and that it was “out of place” for one to fixate on interpretation when each statute in its own
right is full of “vague phrases and unrestricted delegations of power”, with later decisions by
post-war courts as a result of the nullity of judgments rendered by the courts under Hitler, not
on the ground that the statutes applied were void but on the ground that the Nazi judges
misinterpreted the statutes of their own government. After all, as Fuller goes on to state, “the
meaning of a statute depends in part on accepted modes of interpretation. Can it be said that
the post-war German courts gave full effect to Nazi laws when they interpreted them by their
own standards instead of the quite different standards current during the Nazi regime?” In
summary, the Grudge Informer trial supports Fuller’s position rather than Hart’s for the key
principles I will conclude with.
4. Conclusion.
In summary, the actual ‘grudge informer’ trial which took place in the Bamberg Court of
Appeal following the fall of the Nazi regime in Germany, ruled against the precedence of the
trial court. The latter had acquitted the informer of the allegations that she had deprived her
husband of his liberty succeeding the submission of her report and his subsequent detention.
17 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review
pg. 655 18 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review
pg.657 19 See Appendix for Fuller’s response to Radbruch. (8.) 20 That the Court supposed that a law-abiding citizen of the Third Reich would not consign someone to a system
presided over by the courts-martial for making remarks about Hitler because she would know that the accused
would not be tried according to law--by impartial judges who give an appropriate interpretation of the law
Pappe, “On the Validity of Judicial Decisions in the Nazi Era”. 23 Modern Law Review pg.260-74 (1960). 21 Pappe’s argument in The Morality of Law New Haven: Yale University Press, 1969, revised edition- Eight
ways to fail to make law p.7
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This was established on the basis that he had violated a valid law and through a “properly
carried out judicial process”. This decision, the Court of Appeal held, erred in that it inferred
the legality of the informer’s report under the anti-sedition laws of 1934 and 1938. The
argument surrounding this ruling henceforth stemmed from the court’s failure to appreciate
that the accused had used the state machinery as a means of attempting to commit murder.
Yet, on the basis of jurisprudence, the debate still remains at large for although the initial
court ruling was in favour of Hart, (despite the fact that the husband had been “sentenced by a
court for having violated a statute”,) the revised judgement under the Court of Appeal found
her guilty of the deprivation of the liberty of her husband, on the basis that (quoting from the
judgement) the statutes were “contrary to the sound conscience and sense of justice of all
decent human beings.” Hart identifies that this form of reasoning was followed in many
cases, being “hailed” as successes of the doctrines of natural law, “signalling the overthrow
of legal positivism”22. Regardless, Fuller’s link between ‘form’ and ‘morality’ in relation to
the debate with Hart, raises the query as to whether or not the existence of procedural forms
would limit the extent of power inherent in political systems from being abused. Fuller
furthered the argument that principles such as reciprocity and the rule of law (by which no
one is above the law,) if established in political and legislative procedures, could act as
‘check’ and constraint on power. ‘Informal’ or ‘real’ power therefore is ‘hedged...by a
network of reciprocities that trace the limits of [its] control’, which is paramount to the
establishment of the legitimacy of the power - a factor which dictatorships cannot boast
conformity to.
Fuller therefore, tried to express his belief that the Nazi German legal system was not in fact
a ‘true’ legal system as it failed to meet certain ‘morally internal’ principles that would
establish legitimacy, based on natural law. Where law is immoral it loses its legitimacy and
provides strong reasons for not enforcing it. Fuller, unlike natural law positivists before him
(like St. Thomas Aquinas,) did not advocate the application of natural law in its religious
sense, but treats its notions of morality as ‘on a par with international law’23. Consequently,
enforcement of laws established under the Nazi regime can be seen as a breach of natural law
according to the reasoning of Fuller, for they were not expressed in generality (not directed to
individuals), nor transparent and consistent and operating prospectively. Fuller therefore,
advocated that strong moral motives to disobey the law (such as Antigone,) can outweigh
fidelity to the law. As such, Fuller suggests that the laws under which the ‘grudge informer’
trial was operating are likely not to have been valid laws in this moral sense. Henceforth, it
was not a system of law, but rather a system of terror. Conversely, Hart took a more
contemporary view, considering the existent legal system in place at the time as such,
regardless of whether or not the laws in place were ‘just’ or ‘irrational,’ should not have had a
resultant affect their legitimacy. Hart argued from a positivist position that moral issues
should not be considered within a legal system. A law according to Hart, should not be
declared void of legal influence purely on the basis of a morality. Yet, Hart acknowledged the
need for core principles outlined to underpin laws, namely that rules were to be clearly
recognisable with overt consequences and ‘discernable mechanisms’ for changing rules, such
as an Act of Parliament, or a Constitutional amendment process. Hart had claimed that the
Nazi statute at play in the ‘grudge informer’ trial was legitimately enacted and enforced
22 HLA Hart, ‘Positivism and the Separation of Law and morals’(1958) 71 Harvard Law Review 593 pg 619 23 http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exercise.pdf
10 | Page Dylan Carty.
regardless of the outstanding German Penal Criminal Code of 1871. Therefore, the defendant
should not be punished under her lawful willingness to follow the law - Kant’s categorical
imperative, a notion I oppose due to the illegitimacy of the statutes which dictated her
actions.
11 | Page Dylan Carty.
Bibliography:
1. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays
in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)
2. Hobbes, Thomas. "Levinthian." The Great Legal Philosophers . Ed. Clarance
Morris.Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.
3. Aquinas, Thomas, St.. "Summa Theologica." The Great Legal Philosophers . Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.
4. Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers . Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.
5. On the Republic/ On the Laws by Marcus Tullius. Translated by Clinton W. Keye.1928 by
Harvard University Press.
6. Sam Harris. “The Moral Landscape” Free Press; First Edition October 5, 2010
7. http://www.oyez.org/ssm/documents/prop8_trial_opinion.pdf
8. https://supreme.justia.com/cases/federal/us/539/558/case.html
9. http://en.wikipedia.org/wiki/John_Austin_%28legal_philosopher%29
10. http://en.wikipedia.org/wiki/Ludwig_Wittgenstein
11. http://en.wikipedia.org/wiki/Jeremy_Bentham
12. (Austin 1832: Lecture 1, pp. 35–36).http://plato.stanford.edu/entries/austin-john/
13. http://en.wikipedia.org/wiki/The_Concept_of_Law
14. http://en.wikipedia.org/wiki/Hans_Kelsen#The_Pure_Theory_of_Law
15. Hart, H.L.A. “Concept of Law”. Oxford, London: Oxford University Press, 1961.
16. http://www.iep.utm.edu/natlaw/
17. Gustav Radbruch, “Statutory Lawlessness and Supra Statutory Law”, (2006) 26 Oxford
Journal of Legal Studies 1.
18. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays
in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) pg.74
19. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays
in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)pgs.74-75
20. “stark nonsense”The phrase is John Austin’s, - Austin, The Province of Jurisprudence
Determined (Library of Ideas edn., 1954) pg.185, but Hart adopts this phrase as his own.
21. HLA Hart, “Positivism and the Separation of Law and Morals”, again quoting from Austin.
22. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71
Harvard Law Review 645,659
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23. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71
Harvard Law Review pg. 655
24. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71
Harvard Law Review pg.657
25. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71
Harvard Law Review pg.660
26. That the Court supposed that a law-abiding citizen of the Third Reich would not consign
someone to a system presided over by the courts-martial for making remarks about Hitler
because she would know that the accused would not be tried according to law--by impartial
judges who give an appropriate interpretation of the law Pappe, “On the Validity of Judicial
Decisions in the Nazi Era”. 23 Modern Law Review pg.260-74 (1960).
27. Pappe’s argument in The Morality of Law New Haven: Yale University Press, 1969, revised
edition- Eight ways to fail to make law p.7
28. HLA Hart, ‘Positivism and the Separation of Law and morals’(1958) 71 Harvard Law
Review 593 pg 619
29. http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exercise.pdf
Works also used as a basis for understanding, subsequently influencing my approach:
1. Dr. Herlinde Pauer-Studer, “Separation of law and morals? A debate about legal
validity and its implications for moral criticism”, Universität Wien -Institut für
Philosophie. 2010
2. Arendt, Hannah- “Eichmann in Jerusalem” The Viking Press. 1964.
3. Martti Koskenniemi “Between impunity and show trials” Martinus Nijhoff Publishers.
Published in the Max Planck Yearbook of United Nations Law, Yearbook, Volume 6,
2002.
4. Steven Shavell, Harvard Law School - “Law versus Morality as Regulators of
Conduct” 2002 American Law and Economics Association.
5. David Dyzenhaus, Professor of Law and Philosophy, University of Toronto.
Philosophy seminar at McMaster University
6. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart,
Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49,
7. Lon L.Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71
Harvard Law Review 630.
8. Pappe’s argument in The Morality of Law (New Haven: Yale University Press, 1969,
revised edition)
9. http://www.law.nyu.edu/sites/default/files/upload_documents/The_Grudge_Informer_
Case_Revisited.pdf
10. http://people.wku.edu/jan.garrett/320/320lawmo.htm
11. http://sixthformlaw.info/01_modules/other_material/law_and_morality/07_hart_fuller
.htm
12. http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exerci
se.pdf
13 | Page Dylan Carty.
13. http://cstl-
cla.semo.edu/hill/ui305/jurisprudence%20notes/hart%20fuller%20debate.htm
14. http://www.bbc.co.uk/history/worldwars/wwtwo/nuremberg_article_01.shtml
14 | Page Dylan Carty.
Appendix:
1) The most rudimentary ideal is that for a law to be legitimate, it must come
from a legitimate source. Legal Positivists have taken up the argument that for the
source of law to be legitimate, it must come from a source of power, whether that be
a monarch or government. For John Austin, the source of all law must be the ‘only
person who the subjects are in the habit of obeying’, whilst also possessing the
capability to uphold sanctions and laws with credible force if one abuses the laws set
in place. Conversely, it is posited by Natural Law theorists that the source of law
originates from a celestial or divine root or can be discovered and formulated in
accordance to what one may consider to be ‘just’ or moral with the sole intention of
promoting the common good. St. Thomas Aquinas was a firm believer in this school
of thought embodying the prospect that the source of divine law is God instilled in
us through our consciences. His beliefs are centred on the fact that human laws are
derivatives of these divine principles based on practical reason and inherent
morality. This belief in Natural Law predates Christian philosophy held in the mid-
13th century to the beginnings of the era of Hellenistic philosophy following
Aristotle. Both Plato and Aristotle agreed that concepts of law and justice were
derived from nature and reason, which governed actions in search of the ‘higher
good’. Now unlike Austin, a much more contemporary British jurist and
philosopher, Aquinas held the distinction that the person or persons entrusted with
the ability to make laws, must hold the best interests of his contemporaries at heart.
Similarly, Hobbes possesses this mutual belief, in that he felt that the duty of those
responsible for the creation of state law should utilise these powers they possess in a
way which cares for and protects the society and social structure that they govern.
Hobbes goes on to find a middle path on the topic of the source of law, with the
contention ‘that the individual subordinates himself to the sovereign who can create
and enforce laws according to a social contract with the people.’ Hobbes’ notion
stems from the context at the time in which he was alive - The English Civil War, a
time in which the sovereign did not have to answer to anyone. 24
It can generally be assumed that all laws have been fashioned to protect and enforce
the welfare of man. As such, Aquinas begs the notion that neglecting God’s law /
the theory of ‘universal happiness’ in formulating law will result in it being unjust.
Subsequently, he advances that a law which is unjust should not be classified as
being legitimate and so does not warrant being obeyed25. Now we are confronted
with two conflicting sides as to what classifies a law to be legitimate, which forms
the basis on whether or not an unjust law which does not hold moral implications,
should be considered legitimate and followed. Law’s legitimacy according to Austin
is independent of the morality of its content, so must be obeyed, as it draws its
validity from the power invested in the sovereign of a state (or in more applicable to
contemporary societies, the executive branch of government.) Natural Law
Theorists fail to acknowledge this notion because it does not recognise morality or
protection of the people. John Austin upholds the strict division between law and
24 Hobbes, Thomas. "Levinthian." The Great Legal Philosophers . Ed. Clarance Morris.Philadelphia,
Pennsylvania: University of Pennsylvania Press, 1971. See also appendix for more theory surrounding the
origins of legal schools of thought. 25 Aquinas, Thomas, St. "Summa Theologica." The Great Legal Philosophers . Ed. Clarance Morris.
Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.
15 | Page Dylan Carty.
morality, concluding that the content of the law is legitimised through the authority
which enacted it regardless of its possible moral implications.26
Passages in ancient Greek and Roman scripts suggest the distinction of a ‘good
person’ to be one who will do what is lawful and it is the lawgivers who
distinguished right from wrong. Yet, this fails to recognise the extent of ‘lawful’ and
as to whether an act can be morally wrong, such as the genocide of the Jewish by the
Nazi regime, which was legal under German domestic policy. As Cicero succinctly
put it: Salus populi suprema lex. The supreme law is the wellbeing of the people (of
Rome)27. This epitomises the sense of pragmatism which pervaded Roman culture
with respect to morality and law. Given the notion that morality is a social construct
originating from our inherent voice of reason, it follows that it is directly influenced
by the societal changes which they subject.
2) Laws and regulations in broad terms, are implemented to regulate one’s
behaviour and activities that are publicly observed, making enforcement possible.
Yet, perhaps as a result of this, one may argue that it is simply impossible to hold
moral values at the core of legality. For one to say that an action is not lawful due to
its moral implications, we now enter the remit of relativism and the impossibility of
the universality of thought in accordance with a generally assumed set of values. Acts
of this nature are often acts that cannot be classified as illegal but simply unethical (to
Westernised standards) and can include acts that are private and difficult to regulate
without invading key principles such as the right to privacy and freedom of thought
and expression - an impossible conundrum for an authority. Governmental respect for
our individual freedoms and the autonomy of non - governmental spheres of authority
(namely religion) is, then, a necessity of political morality. Following the notion and
apprehension of tyranny that has founded effectively the constitution of countries, the
most obvious of which being the USA, for law to be legitimate with regards to
Natural Law, they must respect the freedoms and rights of the people and the
usurpation of these is unjust in principle, often seriously so. The record of big
government in the twentieth century, and the widespread nature of totalitarianism,
(from Hitler to Stalin,) shows that it frequently harms those it seeks to help more often
than not.
As a means of protecting civil liberties the judiciary has become an increasingly
important system of keeping a check on the executive and legislature, through their
powers of judicial review and precedent, especially in the United Kingdom and
America. However, there has been a movement away from any incorporation of
concepts of morality in judicial decision-making over the last century and as a valid
basis for legislation. This has become evident in a line of recent cases, most famously
in America. Perry v. Schwarzenegger28 and Lawrence v. Texas29, explicitly rejected
the use of subjective moral standings as a legitimate basis for amending legislation or
26 Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers . Ed. Clarance Morris.
Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 27 On the Republic/ On the Laws by Marcus Tullius. Translated by Clinton W. Keye.1928 by Harvard
University Press. 28 http://www.oyez.org/ssm/documents/prop8_trial_opinion.pdf 29 https://supreme.justia.com/cases/federal/us/539/558/case.html
16 | Page Dylan Carty.
the denial of constitutional rights. Although some may argue that there is a clear
divide between US and European court proceedings, due to the politically aligned
nature of the US judiciary, cases have begun to redefine many common notions
previously supported by religious faith and assumed universal beliefs.
In Perry v. Schwarzenegger, the core principle of the case surrounded the introduction
of an amendment to California’s constitution to prohibit same-sex marriage. The
proponents for the state amendment argued along the basis that heterosexual marriage
was "an essential institution of society", whereas the opposition argued that "the
freedom to marry is fundamental to our society", that the California Constitution
"should guarantee the same freedom and rights to everyone" and that the proposition
"mandates one set of rules for gay and lesbian couples and another set for everyone
else." They also argued that "equality under the law is a fundamental constitutional
guarantee." Now this case represented a clear distinction between a religious moral
outlook and a more contemporary liberal belief in equality. As such, the ruling in the
Perry case stated a ground-breaking social and political upheaval of religious morality
within the interpretation of law, that “moral disapproval alone is an improper basis on
which to deny rights, ...a private moral view… is not a proper basis for legislation,”
but also that “…those individuals’ moral views are an insufficient basis upon which to
enact a legislative classification.” The Supreme Court in Lawrence (a trial which
advocated that same-sex sexual activity should be legal in every U.S. state and territory,)
decided that conservative religious moral majority may not “use the power of the State to
enforce these views on the whole society through operation of the criminal law”. This clear
denunciation of ‘popular moral belief’ in terms of judicial decisions was also fortified
in Planned Parenthood of Southeastern Pa. v. Casey, the Supreme Court made plain
the obligation of the Court, “Our obligation is to define the liberty of all, not to
mandate our own moral code.” This condemnation of legal statutes has represented a
potential shift in jurisprudence as we know it and the perhaps waning influence that
traditional moral truths hold on the law, perhaps proving that it is no longer a
necessity.
3) John Austin is best known for his work developing the theory of legal
positivism. Among other things he attempted in this to clearly separate moral rules
from "positive law." Austin was also greatly influenced in his utilitarian approach to
law by Jeremy Bentham. The three basic points of Austin's theory of law are that: the
law is command issued by the uncommanded commander—the sovereign; such
commands are backed by threats of sanctions; and a sovereign is one who is
habitually obeyed
http://en.wikipedia.org/wiki/John_Austin_%28legal_philosopher%29
4) The early Wittgenstein was concerned with the logical relationship between
propositions and the world and believed that by providing an account of the logic
underlying this relationship, he had solved all philosophical problems. The later
Wittgenstein rejected many of the assumptions of the ‘Tractatus’, arguing that the
meaning of words is best understood as their use within a given language-
game.http://en.wikipedia.org/wiki/Ludwig_Wittgenstein
5) Bentham's ambition in life was to create a "Pannomion", a complete utilitarian code
of law. He not only proposed many legal and social reforms, but also expounded an
underlying moral principle on which they should be based. This philosophy of utilitarianism
17 | Page Dylan Carty.
took for its "fundamental axiom", it is the greatest happiness of the greatest number that is
the measure of right and wrong" http://en.wikipedia.org/wiki/Jeremy_Bentham
6) Hart identifies content, origin and range to be important differences. In
relation to content, Hart argues that not all laws are imperative or coercive, with some
being ‘facilitative’ laws, by which we can create contracts and other such like legal
relations. Austin however, that for a legal system to function, there must be a
sovereign who dictates and creates the law (whether it be a dictator or monarchy, is
not defined) whilst remaining himself above the rule of law. In such a sense, in the
bank gunman example, we are presented with such a case, where he who is the source
of command, is not subject to another's commands. Hart disagrees with such a claim,
noting that laws may have several sources and legislators who themselves are subject
to the laws they create, and thus this is an inaccurate description of the law. Yet, one
may consider the example Stalinist Russia or Chile under Pinochet to name a few
examples of this very scenario in practice, showing Austin’s theory does not lack
possible merits.
Hart also became influenced by Austrian legal philosopher Hans Kelsen’s defence
of continental legal positivism through his theory of positive law, although Hart
rejected two features of Kelsen's theory30: the first being the notion that law
requires sanctions for it to be implicit; and the second was the neo-Kantian
principle that political-turned-social convention could not be explained wholly in
terms of facts. In rejecting Kelsen's reliance on "purity" within his "pure theory of
law," Hart broke away from Kelsen bringing English-language jurisprudence into
the philosophical mainstream. Hart and Kelsen, as it just so happened, grew apart
possibly following a clash of their differing opinions on the next steps in positivist
thinking and philosophy. Hart introduced the problem of "the core and the
penumbra" in his study; The Concept of Law31 as a means of illustrating his belief
that laws must be dictated by the meaning of the words, not any natural or moral
belief. An example therefore of a "core" case, would be one that a statute is
intended to cover. For example, the more contemporary example of this being a
Road Traffic Act which bans vehicles from parking in certain areas, is intended to
cover cars. A "penumbra" case on the other hand, would be one not considered by
the creators of the law, like how an airplane could be applied to the above
example. A judge interpreting such a law according to legal positivism, would
look to a definition of the words of the statute as means of passing judgement.
7) Hart later criticised Radbruch for his “extraordinary naivety”32 with regards to
his beliefs, suggesting that in a social structure like that of the Germans under Hitler’s
totalitarian rule, there was disregard for “common morality” and that there was
general agreement “that [the] law might be law though it failed to conform with the
minimum requirements of morality.” Hart recognises the positivist ideal of “law is
30 This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which start from a
Basic Norm where all other norms are related to each other by either being inferior norms, when the one is
compared to the other, or superior norms. The interaction of these norms is then further subject to representation
as a static theory of law or as a dynamic theory of law.
http://en.wikipedia.org/wiki/Hans_Kelsen#The_Pure_Theory_of_Law 31 Hart, H.L.A. “Concept of Law”. Oxford, London: Oxford University Press, 1961. 32 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press, 1983) pg.74
18 | Page Dylan Carty.
law” may have, at the time in Germany, gained a more “sinister” influence and
perspective (due to the nature of Germany’s 1939-45 police state,) in contrast to here
in Great Britain, where it “went along with the most enlightened liberal attitudes”. But
even if that is the case, Hart still argues that Radbruch, a German legal scholar and
politician during the Third Reich, had only “half-digested the spiritual message of
liberalism which he is seeking to convey to the legal profession.” In truth, one may
argue, as Hart did, that it can be seen that Radbruch’s notions and theories rest on an
overvaluation of the fact that “a rule may be said to be a valid rule of law, as if this,
once declared, was conclusive of the final question: ‘Ought this rule of law to be
obeyed?”33. Instead, one must inherit the belief that regardless of the fact that a given
rule is the law, that should not determine whether or not it should be obeyed, in part
disagreeing with other legal Positivists - in part acknowledging the claim of Natural
Law.
8) For Fuller, Radbruch’s assertion of the principle of a ‘higher law’ (a morality
that transcends positive law but which functions as a test for the validity of law) was
“a belated fruit of German legal positivism”, which evidently plays into his reasoning
of the grudge informer trial and the belief that the only way to “escape one law is to
set another off against it, and this perforce must be a ‘higher law’34. Fuller concludes
that there is a present contrast in Hart’s position in the matter - although he submits
scathing critique of Radbruch, Fuller argues that there is a deep similarity between
their positions; Hart and Radbruch refer to the idea of a higher moral law in order to
deal with the problems created by past legal injustice. For them, the notion of higher
law is a law which possesses the power to invalidate another law, but where this
validation comes from is still left ambiguous - is this just another form of morality
Hart has arrogantly refused to accept? Thus, they both, in fact, prefer the legal
solution to come in the form of retroactive ruling. The only apparent difference being
that Radbruch, in Statutory Lawlessness and Supra Statutory Law, willingly submits
that judges should hold the power in a post-monarchical system of democracy to do
what the legislature should not be entitled to do - interpret and scrutinise law, in
essence, forcing the acceptance of what they do to be acts upholding legality. Hence,
he argues that the future prohibition on extreme injustice as a result of post-war
judicial rulings is, in essence, a prime example of higher legal law.
33 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press, 1983)pgs.74-75 34 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review
pg.660