Law and morality are discrete terms with different interpretations but they
influence one another and often overlap. Law is defined as a "pattern of conduct
or action recommended or enacted by the relevant authority: as a directives or
conditions imposed by a legislative body and court's understanding." It
includes variety of government-assigned duties that are necessary to sustain
political hierarchy, resolving conflicts, and distributing social services as
per individual needs and requirements. Morality is a set of deeply held, widely
recognized, and generally prosperous values that exist within a society.
debate between Hart and Fuller has been centers around H.L.A Hart's legal
positivism theory of law and morality. Two separate individuals are without any
required relation, as per legal positivism's law and morality. Judicial
positivists perceive the law as "what is" despite "what ought to be," and
morality, since the legal system is reasonably versatile and does not need
defense from any other form of theory to "validate its autonomy."
fact that Lon L. Fuller's common law values say otherwise. For them, the law is
not only about the legal system; it is also about morality. Natural law
theorists also ignore rules that are morally unacceptable. Fuller believes that
laws must be justified. Hart's aim was to make Austin's command theory of
legal positivism more systematic.
Fuller had completely ignored Hart's opinion
and was not swayed by the reasoning he presented. The philosophy of natural law
holds that, in addition to the positive law, there are certain normative
principles or values to which the positive law should conform if it is to be
regarded as actual law which may come from morality, reason, God, or some other
influence. The "debate" between Hart and Fulller demonstrates the contrasting
viewpoints of positivism and naturalism especially in reference to nazi laws.
The controversy began when Hart delivered his Holmes Lecture on Positivism and
the Separation of Law and Morals at Harvard Law School in April 1957, and it was
published in the Harvard Law Review in 1958. Fuller presented the answer in
his original paper Positivism and Fidelity to Law - A Reply to Prof. Hart, which
was also published and approved for release in the Harvard Law Review in 1958.
Fuller responded in the first edition of his book The Morality of Law to Hart's
response in his book The Concept of Law. In 1965, Hart responded to this in the
Harvard Law Review. Fuller replied in the Second (Modified) Edition of The
Morality of Law, published in 1969. There is a common belief that no one
anticipates to win in a debate, and that there are no reliable parameters on
which to assess victory.
The conflicts tend to be vivid, but the issues are
seldom discussed. In the World Cup finals, positivists and natural attorneys
clash is going on from multiple generations. Victory belongs to one aspect of
the discussion and now to the other. A moral beggar or an intellectually
disingenuous romantic can only compliment or berate the legal theorist.
concept of dynamic positivism, it is said, brought the debate to a close.
Dynamic positivism is likely to promote Hart's understanding that Nazi laws were
indeed laws (albeit harsh laws). Dynamic positivism, on the other hand, offers
theories that are broader, simpler, and more practically coherent than
Encouragement and incentive for execution have always played a critical part in
every project. A project is like a transition between pragmatic and conceptual
work. It enables us to extend our information about a specific subject. I would
like to express my special thanks to my teachers late Prof. (Dr.) Shirish
Deshpande (Professor of Jurisprudence) and Ms. Debasree Debanath (Professor of
Jurisprudence) for giving me the golden chance to do this magnificent project on
the subject matter Hart and Fuller Debate on Morality of Law:
Analysis, which has also enabled me do a lot of research and I have come to know
many other different information and I am grateful to them. Thank you also for
all the motivation and help required for this project to be completed. Second, I
would also like to appreciate my parents and friends who helped me a lot to
finalize this project within the limited framework of the project.
For exploring all of the outlets of the subject, Doctrinal research and also
some Empirical research features as input. Doctrinal Research which is also
identified as Library oriented Research focuses on going over and interpretation
of the Predominant and Supplementary details is used here.
The majority of the
material in this project is extracted from authenticated journals and some of
the various internet sources. The most of the material is revolved around the
debate of Hart and Fuller on the Morality of the Law. This project also includes
critical analysis of this debate.
Aims and Objectives:
Criticism and Understanding Write the criticism part separately
- To examine the grudge informer case and how it sparked the morality of law controversy between Hart and Fuller.
- To examine HLA Hart's viewpoint on the morality of the law.
- To examine Lon L. Fuller's perspective on the morality of law.
- To analyze Hart and Fuller's views on the internal morality of law.
- To learn more about Dynamic Positivism and how it applies to today's world.
Making generalized statements regarding two contrasting legal philosophies,
natural law and legal positivism, is a fallacy.' Both hypotheses accuse the
other of being wrong. Others are insightful, whereas others are baseless. What
is somewhat commonly established, but certainly true, is that natural law
advocates and legal positivists have traditionally clashed as much among
themselves as with their critics.
If advancement in legal philosophy is to be
achieved by reviewing the studies of significant legal philosophers, it will be
done by thoroughly evaluating the ideas created, not by assigning a tag to the
philosopher and then believing certain things about that legal philosopher
because the tag has been given. This is especially true of H.L.A. Hart's work.
To get a deeper understanding of H.L.A. Hart, consider some general views
expressed by legal philosophers who aren't fans of legal positivism.
law, in particular, recognizes a number of concepts that are incompatible with
legal positivism. Most significantly, natural law establishes that the relation
between law and morality is essential, not dependent. When there is a
discrepancy between natural law and human law, natural law should assume
priority according to natural law theory.
Natural law requires that all
human-made laws follow universal natural law concepts, such as Aquinas'
conceptions of doing well, resisting evil, and upholding the common good. The
promoter of natural law argues that every law should be morally justified in
order to be considered "law" at all.
As a result, every morally permissible
legal order must recognize and implement natural law's core premises. However,
there have been periods when advocates of natural law have made negative
comments about legal positivism. As one analyst put it, "In principle,
positivism does not consider any intelligence other than that which can be
obtained by the perceptions as science.
As a result, it can never say what men
should do, only what they actually do." According to another commentator, "Legal
positivism is a school of thought that holds that law is created by the dominant
power in society through a historical method. According to this perspective, law
is just what the governing power has ordered, and everything that it has
commanded is law purely because of this situation."
The legal positivist, per
the Bodenheimer, focuses on separating positive law from morality and appears to
conflate justice with legality. Eventually, Fuller, a long-time adversary of
"The analytical positivist sees law as a one-way projection of
authority, emanating from an authorized source and imposing itself on the
citizen." It does not consider implicit collaboration between lawgiver and
citizen as an intrinsic component in the development of a legal system; rather,
the law is viewed as merely relying on the citizen - morally or immorally,
righteously or wrongfully, as the case may be. These statements are
characteristic of legal positivism opponents.
They, on the other hand,
demonstrate a failure of comprehension of legal positivism. In the case of H.L.A.
Hart, this impairment is especially pronounced. Hart is unquestionably the most
influential prominent le- gal positivist in Anglo-American rule. Both his
detractors and supporters recognize this position. However, it seems that many
people are not paying enough attention to his views on morality and the law.
The Grudge Informer Case
In his widely praised work "Lectures on Jurisprudence or the Philosophy of Law," John Austin stated:
"The existence of law is one thing; its merit or demerit is
another." The dispute on the legitimacy of any law is a lengthy and never
focused on its moral substance. It all started with a specific decision,
identified at the aftermath of the Second World War as the Grudge Informer Case,
which contributed to Professor H. L. A. Hart and Professor Lon L. Fuller moving
head-to-head about the controversial huge difference between the philosophy of
legal positivism and natural law. As seen in 'Readings in the Theory of Law' by
Keith Culver, the brief details of the case are as shown below:
wanting to get rid of her husband reported him to the authorities in 1944 for
derogatory claims he rendered about Hitler after leaving the German army at
The wife was under no legal requirement to disclose his actions, although
what he had done was clearly in breach of laws that made it illegal to make
statements derogatory to the Third Reich government or to impede the military
protection of the German people by any method. The husband was detained and
condemned to death, although he was not hanged but shown to the front,
presumably corresponding to these laws. The wife was tried in a West German
court in 1949 for a crime which would classify as unlawful deprivation of a
person from his /her freedom. Within the German Penal Code of 1871, which has
continually existed in effect since its implementation, this was unlawful.
wife argued that the incarceration of her husband was in line with the laws of
the Nazis and she had thus done nothing illegal. The appeal court to which the
case was ultimately brought ruled that the wife was liable by condemning him
before the German courts of gaining the violation of her husband's rights.
Opinion of HLA Hart's
Hart is a positivist, but he does not accept that law and morality have a
compulsory connection between them. While he does recognize that there is a
strong relationship among law and morality, and does not disapprove that the
advancement of the law has been enormously effected by morality. That being
said, he does not assume that they are mutually dependent on each other.
such he begins to feel that a line should be drawn between what law should be,
and what law ought to be. The implication of the situation continues to remain
that because of moral condemnation of it, a law does not hold back being law.
Hart contends that by fixating on what he says rather than concentrating on what
one wants him to say, authorities should show validity about the law.
According to Hart, the law consists of two major rules. The Primary Rules are
duty enforcing rules on residents and include a legal punishment. Secondary
rules are laws conferred by authority that specify how laws should be
interpreted, assessed or updated. Hart argues that these laws form the
foundation of the legal system and that the law of acceptance is the glue that
keeps the entire legal system together. Hart therefore believes that for a legal
process to happen, adherence to a certain moral norm is not necessary.
recognizes that at some stage, law and morality are required to converge, for
example when a situation occurs where the language of the ultimate basis is not
adequate to lend legitimacy to the intent of the law (Professor Hart refers to
these as problems of the law as penumbra), Hart says that such cases can be
solved by way Judicial interpretation. A comparison can be taken about what the
law ought to be, and moral considerations play a vital position in having to
decide such good cases.
Fuller is a naturalist and, through controlling human behavior by legislation,
he considers laws as a means to achieve social structure. He claims that it must
adhere to a certain moral purpose standard for a law to be valid. These are
the eight normative framework set out by Fuller:
- These are the eight normative frameworks set out by Fuller:
- Not inconsistent
- Feasible to adhere to
- Fairly stable over time
- Authorities should follow the laws
Fuller implores law makers to take into consideration each
of the above before determining whether a law is valid. Fuller goes further to
explain morality by categorizing it in two; Morality of aspiration and morality
of duty. Morality of aspiration suggests a desired norm of human conduct that
promotes his/her best interest. Morality of duty describes the standards people
follow to ensure smooth functioning of society.
Other forms of morality
discussed by Fuller are "Internal morality of law" and "External morality of
law". The former is concerned with procedure of law making while the latter
focuses more on substance rules of law which are applied in decision making.
Fuller rejects the positivist approach to law and argues that society's goals
can be achieved by other means rather than relying solely on law. Fuller
instructs policy makers to take into account each of the aforementioned before
evaluating whether a law is reasonable.
Fuller on Internal Morality
Positivism and Fidelity to Law - A Professor Hart's Response to Fuller, Fuller
said, unlike a trifling power fiat or a mere power fiat, distinguishable pattern
of actions in the conduct of the state the law gives spike to an obligation to
follow it. Then he, Hart was criticized for failing to offer a concise
description of this duty. Fuller provided a theory of law in the Morality of Law
that is intended to bridge this disparity.
Law-making, Fuller contended, is an
exercise of intent: it is the action of organization of confining human behavior
to the governance of regulations. Law is differentiated from authority decree
and official conduct prognostications because it offers a human guide Behavior.
Law does not rise over the person who tells him. In any situation that happens,
"do this; don't do that". Law's goal is to express general guidelines in such a
way that the person can attribute them to the specificity of his own actions.
But if the rule is the law, then it should be freely complied - freely in the
context that there is no one to follow at each point, to tell the person what to
do - it must be competent of being heeded openly. In other terms, it must be
capable of figuring citizens' realistic thinking.
People must have the right
specially, when they are developing their life, to take into consideration the
law. Once we understand that legislation has a reason in particular, we can in
view of this reason, in light of this purpose by asking whether or not it could
act as a guide for human conduct we can analyze a specific law.
that legislation cannot be carelessly created; supplying guidelines for human
beings behavior is something that law-makers must prepare for. In order to
create one that can direct, as per Fuller, law-makers must uphold eight concepts
relating to the mode of implementation, and so accurately called law, human
These ones, the values include what Fuller considers the internal
morality of the law. They have morals and they recommend what a legislator has
to do to establish law that is valid; since they contain an internal morality,
they the object of legislative process itself needs them. In the context of a
popular metaphor, Fuller establishes his ideals in which a single king, Rex,
attempts to make rules but fails despite all his attempts at legislation, and
does so in eight different ways.
First, he continues to fail to make a specific
law so that each one can be judged on individual basis. Rex also struggles to
make laws by posthumously making laws, failing to publicize the law, and by
stating paradoxical rules or rules that necessitate citizens to do the things
that are not comprehensible by neglecting to set the rules which are
By incorporating a weekly channel of legislative changes into
the law, and by failing to follow the laws as previewed, it is unthinkable to do
so. Rex's subjects grumble after each failure, and the very same criticism
applies to their different complaints. He has failed to give them anything they
can abide. The internal morality of Fuller's law may be construed in two
different ways for replying positivists.
First, as T.R.S. Allan indicates that
Fuller explains his internal morality of law from the law-givers point of view
thus calling the law from the same point of view as the one the positivists
embraced, Austin, in specific. The point of Rex's metaphor is to prove
positivists that even though we interpret the law from the point of view of the
law-giver, we can see that there are limitations to the law. If he needs his
respondents to be allowed to do what the law-giver should do, ignoring his
The internal morality of the law thus shows that legislative
authority is not only "limited" legally, but also necessarily restricted
too. According to, the eight rules given by Fuller we can interpret it as
reply to the Hart in following manner. Whereas Hart (when he embraced the
empirical interpretation of internal element of law) regarded the rule of
recognition as being extremely transparent to any material whatsoever, Fuller
demonstrates that this cannot be completely accurate.
It cannot be the law of
recognition, For instance, "whatever the Queen says is law." For if the Queen
says law, and then refuses to pay appropriate consideration to the internal
morality of the law, to what she is Decrees are not going to be the law. Second,
the eight concepts of legality of Fuller may be understood as an answer to
positivists because they were arguing for a completely inner correlation between
law and morality into the law.
In seeking a morality deducible from the
directing practice of the nature of law, Fuller appeared to establish a
relationship between law and morality which was exempted from the positivist
argument that certain relationships by rendering it the focus of moral debate,
the law is destabilized. Difference of opinion about the essence of justice
raise questions about the credibility or insight of translating the truth of the
law and leads to hotly debated ideas of philosophy; but internal morality of the
law clearly arises from a prudent analysis of what. It is important to do
something that can be correctly executed called as law.
Hart himself understood earlier in The Philosophy of Law that the concept of law
curtails the nature of legislative mandates; he acknowledged that Rex would have
to pay more attention to statutory decorum if he expects his subjects to be
capable of distinguishing his individual desires from official orders.
Evidently, the Hart/Fuller controversy has received so much attention that a
reader would be shocked to learn that Hart does not react to Fuller's claim that
the eight standards of legality confine the criterion of legal backing:
social regulation is to work, the laws must meet several criteria they must be
understandable and within most people's willingness to comply, and they must not
be retroactive in particular... This implies that, for the most part, those who
are ultimately disciplined for breaking the rules have the capacity and
incentive to do so...if this is what the appropriate relation between law and
morality entails, we should acknowledge it.
"It is undoubtedly synonymous with
very great iniquity." Hart continues. Fuller's inner morality of law has been
viewed by positivists like Hart and Joseph Raz one that can be easily grasped by
the positivist framework. Simple terms, their point is that the internal
"morality" of law does nothing necessarily moral about it.
They contend that,
while Fuller has formulated the internal standards of law-making, he has not
formed an essential link between law and morality. "Poisoning is no doubt a
purposive activity and reflections on its purpose could display that it has its
internal principles." Hart says, using a thought - provoking example. "Avoid
poisons, however lethal, if their shape, color, or size is likely to attract
Hart advises. Of course, internal values are not always moral; their
morality can be defined by what these concepts have been used to achieve. Hart
believes that Fuller has conflated purposeful behavior with morality. This line
of reasoning has been established even more by Joseph Raz. According to Raz, the
rule of law is the "specific excellence of the law."
Efficiency in directing
human behavior, irrespective of the objectives of instruction, is a quality of
the rule of law, and efficiency is not a moral attribute. Raz argues that
Fuller's legal principles are merely principles of successful law, and thus are
only instrumentally and contingently moral - moral only insofar law-makers
utilizes them to meet moral ends.
Fuller and his supporters have replied to this
critique by denying that the eight legal principles can "just as conveniently"
fulfill morally bad as well as positive purposes. Fuller claims that law is
impartial in terms of fundamental goals, but that its formal internal morality
has significant implications for substantive justice. Fuller claims the "deep
affinity between legality and justice." For example, following a
well-established rule is a prerequisite for assessing the law's fairness.
conditions of legality necessitate release and transparency, exposing the legal
order's laws to public review. The specifications of legality necessitate
publication and transparency, exposing the legal order's laws to public
scrutiny. This will limit the goals that governments seek. Fuller claims that
legislators are unable to speak openly about their wrongdoings, specifically
when they are asked to explain their acts.
On this framework, Colleen Murphy has
supported the morality of Fuller's values. She believes that the rule of law is
incompatible with non-democratic rule. The apprehension and ambiguity that
totalitarian leaders depend on are inconsistent with the rule of law's need for
consistency and uniformity of punishment. On this point, Colleen Murphy has
upheld the morality of Fuller's values. She believes that the rule of law is
incompatible with non-democratic practice.
The apprehension and ambiguity that
totalitarian leaders depend on are inconsistent with the rule of law's need for
clarity and predictability of punishments. Furthermore, the standards of
legality would enable an oppressive system to be fully frank and truthful about
its oppression, undermining the government's presumed confidence in the minds of
both its own people and the global community.
Furthermore, explicit statements
of oppression, according to Murphy, are incompatible with people's desire to
protect their spiritual self although it is theoretically conceivable for an
evil government to seek inequitable objectives while complying with the rule of
law; Murphy argues that this is not a realistic likelihood. An authoritarian
state may appear to uphold the rule of law on the surface, but it is tough to
fathom such a government actually concerned with regulatory obligations. But
this answer to the positivist argument is does not seems to be adequate.
besides, positivists may embrace the correlation between law and justice without
having to abandon the basic positivist argument that there is no necessary
philosophical link between law and morality. "...one could not wish for a
more explicit ignorance of any feasible communication between the internal and
external moralities of law than that contained in this last sentence." Fuller
responded directly to Hart's claim that his eight principles of legality are
congruent with great injustice but it's worth noting, that Hart isn't rejecting
the idea of such an encounter.
He just claims that such interactions are
conditional. Fuller's assertion that legal values would aim to move law towards
goodness does not appear to imply anything else. Fuller's claims do not
demonstrate that fundamental justice is required by law; rather, they
demonstrate that human beings have a tendency to expect moral goodness from
themselves and their governments.
Explicit statements of inequality are often
met with political retaliation. The restrictions placed by legality principles
may reduce concrete inequality, demonstrating a link between law and morality;
however, the positivist claim that must be debunked is that there is no abstract
link between law and morality.
Hart's legal stance and critical morality are mutually compatible. The legal
positivist Hart creates a model of law that he argues is both philosophically
sound and consistent with how law is applied in the real world. Hart, a critical
moral philosopher, urges both judicial authorities and ordinary people to demand
that the legal system's substance and implementation follow a reasonable
standard of morality.
The rule should be scrutinized by society on a daily basis
for moral purposes. If any laws fail to meet this criterion, or if the legal
system as a whole fails to meet a reasonable moral standard, a proper course of
action must be taken. This is when difficult decisions must be taken. Obviously,
morality can have an effect on legal truth. Unfortunately, there are times when
it does not. Perhaps a delusional person would assume there are easy solutions.
Hart recognizes this and establishes a legal philosophy founded on solid moral
principles in this regard. If we follow Hart's theory or Fuller's, we can
understand that the Constitution underpins the entire justice system. Where did
the Constitution come from, though? The Constitution is the culmination of a
number of historical and political changes, which are strongly influenced by
social and economic influences.
Dynamic positivism goes beyond the Constitution;
while traditional positivism or natural law does not. Farther than that, dynamic
positivism investigates the historical, social, and economic powers that shape
the Constitution and other laws. Finally, we should question whether idealism
has no room in the legal system.
Classical positivism, of course, has no space
for it, but dynamic positivism, by focusing on empirical knowledge rather than
natural law, has a huge amount of idealism. Dynamic positivism, as described in
Law in the Scientific Age, seeks to direct society ahead along scientifically
developed parameters. It investigates society's historical trends and seeks to
contribute to social progress in a peaceful manner.
In a scientific society,
the legislator is thus an individual who is both scientific and idealistic. His
idealism, on the other hand, is not utopian. It is based on a scientific
analysis of society's objective historical trends and procedures, with the aim
of peacefully leading society forward towards history. A dynamic positivist is
someone who is sincerely honest, benevolent, full of love for his fellow
creatures, and loaded with deep attempts to avoid misery, but he must also have
Written By: Shreyansh Agrawal
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- Markandey Katju, ''The Hart-Fuller Debate'', (2001) PL WebJour 1, http://www.ebc india.com/lawyer/articles/496_1.htm.
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- H.L.A Hart,'' The Concept of Law, Revised edition'', Oxford University Press Publications, 2002 at pp. 185-200.
- H.L.A Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review, vol. 71, no. 4, 1958, pp. 593�629, JSTOR, www.jstor.org/stable/1338225, Accessed 6 Apr, 2021.
- Edwin W. Tucker, "The Morality of Law, by Lon L. Fuller," 1965, Indiana Law Journal: Vol. 40: Iss. 2, Article 5, Available at: https://www.repository.law.indiana.edu/ilj/vol40/iss2/5.
- Benjamin C Zipursky, ''Practical Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty‟,  Vol 83, New York University Law Review at p.1170- 1212.
- Supra Note 14.
- Jennifer Nadler, "Hart, Fuller and the Connection between Law and Justice," Law and Philosophy 27, no. 1 (2008): 1-34, Accessed February 10, 2021, http://elibrary.nlunagpur.ac.in:2168/stable/27652636.
- Supra Note 7.
- Supra Note 3.
, BA LL.B 4th Year - Lloyd Law College