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Hart And Fuller Debate On Morality Of Law: A Critical Analysis

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."[1] 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.[2]

The 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."

Despite the 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.[3] 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.[4] 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.[5]

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.

The 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 Hart's.[6]

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:
A Critical 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.

Research Methodology
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:

  1. To examine the grudge informer case and how it sparked the morality of law controversy between Hart and Fuller.
  2. To examine HLA Hart's viewpoint on the morality of the law.
  3. To examine Lon L. Fuller's perspective on the morality of law.
  4. To analyze Hart and Fuller's views on the internal morality of law.
  5. To learn more about Dynamic Positivism and how it applies to today's world.

Criticism and Understanding Write the criticism part separately
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.[7]

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.

Natural 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.[8] 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.[9] Eventually, Fuller, a long-time adversary of Hart's, explains:
"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.[10]

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:[11]

A woman 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 home.

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.[12] 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.

The 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.[13]

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.[14]

As 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.[15]

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.

Hart 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.[16]

Fullers' view
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.[17] These are the eight normative framework set out by Fuller:
  • These are the eight normative frameworks set out by Fuller:
    1. Rules
    2. Published
    3. Retrospective
    4. Comprehensible
    5. Not inconsistent
    6. Feasible to adhere to
    7. Fairly stable over time
    8. Enforced
    9. 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.[19] 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.[20]

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.[21] 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.

This implies 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 actions.[22]

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 acceptable.[23]

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 directions.

The internal morality of the law thus shows that legislative authority is not only "limited" legally, but also necessarily restricted too.[24] 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.[25]

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.[26]

Hart's Reply
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:
If 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.[27] "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 notice."

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.[28] 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.

The 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.[29] 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.

And 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.[30] " 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.[31]

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.[32] 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.[33]

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 scientific knowledge.[34]

  1. Dictionary of Law (2005), Merriam-Webster.
  2. J. Horner, Morality, ethics, and law: introductory concepts, Seminars in speech and language, 24(4), 263�274.
  3. Markandey Katju, ''The Hart-Fuller Debate'', (2001) PL WebJour 1, http://www.ebc
  4. Ibid.
  5. Ibid.
  6. Ibid.
  7. William C. Starr, ''Law and Morality in H.L.A. Hart's Legal Philosophy,'' 67 Marq. L. Rev. 673 (1984), Available at:
  8. Ibid.
  9. Ibid.
  10. Ibid.
  11. Navin Kumar Jaggi, The Hart-Fuller Debate and the Indian Constitution, April 24, 2019,
  12. Ibid.
  13. Ibid.
  14. H.L.A Hart,'' The Concept of Law, Revised edition'', Oxford University Press Publications, 2002 at pp. 185-200.
  15. Ibid.
  16. H.L.A Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review, vol. 71, no. 4, 1958, pp. 593�629, JSTOR,, Accessed 6 Apr, 2021.
  17. Edwin W. Tucker, "The Morality of Law, by Lon L. Fuller," 1965, Indiana Law Journal: Vol. 40: Iss. 2, Article 5, Available at:
  18. Ibid.
  19. Benjamin C Zipursky, ''Practical Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty‟, [2008] Vol 83, New York University Law Review at p.1170- 1212.
  20. Supra Note 14.
  21. Jennifer Nadler, "Hart, Fuller and the Connection between Law and Justice," Law and Philosophy 27, no. 1 (2008): 1-34, Accessed February 10, 2021,
  22. Ibid.
  23. Ibid.
  24. Ibid.
  25. Ibid.
  26. Ibid.
  27. Ibid.
  28. Ibid.
  29. Ibid.
  30. Ibid.
  31. Ibid.
  32. Supra Note 7.
  33. Supra Note 3.
  34. Ibid.
Written By: Shreyansh Agrawal, BA LL.B 4th Year - Lloyd Law College

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