Throughout history, there has been a debate about the relationship between law and morals. In different periods, societies have described this relationship in various ways. This essay will explore the Hart and Fuller debate, which is a famous discussion about the relationship between law and morals in modern times. Before that, we will briefly describe the historical development of the relationship between law and morals.
- Ancient Times
In ancient India, Hindu law had no distinction between law and morals. Later, in Mimansa, certain principles were laid down that distinguished between obligatory and recommendatory actions. In ancient Greece, natural law was based on morals. The same was true for ancient Rome, where natural law was also based on morals.- Middle Ages
During the Middle Ages, the church was the main source of law in Europe, and its laws were based on morals (the Bible).- 19th Century
In the 19th century, the analytical school of thought emerged, which believed that law had nothing to do with morals. Jeremy Bentham, a famous philosopher, solved this question by stating that law has the same center as morals but not the same circumference.- Modern Times
In modern times, there is a clear distinction between law and morals. However, the relationship between the two is still debated. The Hart and Fuller debate is an example of this.H.L.A. HART And LON. L FULLER
The
controversy between positivism and naturalism revolves around the question of
what law ought to be versus what law as it is. This debate began with H.L.A.
Hart's journal "Positivism and the Separation of Law and Morals", to
which Lon L. Fuller responded with "Positivism and Fidelity to Law".
The ongoing debate between these two legal theorists continued with their
respective books "The Concept of Law" and "The Morality of
Law".
Hart's concern was that law and morals are distinct, and he gave three critiques of natural law theory. First, he argued that John Austin's theory of command was a better explanation of the nature of law than natural law theory. Second, he introduced the concept of "penumbra", which refers to the idea that there are areas of law where there is no clear answer and where judges must use discretion to determine what the law is. Finally, he argued that there may be morally bad laws, but that does not mean they are not laws.
Fuller, on the other hand, argued that judges should decide what the law is based on a basic code of rationality, rather than solely on what the law ought to be. According to Fuller, a law is not a law if it does not follow this basic code. This basic code is not necessarily based on morality, but it is grounded in reason.
Hart's concern was that law and morals are distinct, and he gave three critiques of natural law theory. First, he argued that John Austin's theory of command was a better explanation of the nature of law than natural law theory. Second, he introduced the concept of "penumbra", which refers to the idea that there are areas of law where there is no clear answer and where judges must use discretion to determine what the law is. Finally, he argued that there may be morally bad laws, but that does not mean they are not laws.
Fuller, on the other hand, argued that judges should decide what the law is based on a basic code of rationality, rather than solely on what the law ought to be. According to Fuller, a law is not a law if it does not follow this basic code. This basic code is not necessarily based on morality, but it is grounded in reason.
Nazi informer case :
The defendant reported her husband for making derogatory remarks about Hitler during WWII, resulting in his death sentence. After the war, the wife was found guilty of using Nazi laws to deprive her husband of his freedom. The judge who sentenced the husband was acquitted.
Hart Views:
- He argued that the Nazi laws were valid because they were created and enforced by the state.
- From a legal positivist perspective, the morality of the Nazi laws is irrelevant if they were created and enforced according to the rule of recognition.
Fuller Views:
- He argued that the Nazi laws were invalid because they violated fundamental moral principles.
- From a natural law perspective, the Nazi laws were unjust and immoral because they violated the principles of human dignity, equality, and respect for individual rights.
Shyam Chouksey case (2017):
the Shyam Chouksey case in India addressed the mandatory playing of the national anthem in cinema halls.
The Supreme Court drew on the legal debate between H.L.A. Hart and Lon Fuller, citing Fuller's principles of promoting social goals and procedural fairness. Some criticized the decision for violating individual freedom.
Conclusion
The debate about the relationship between law and morals has occurred throughout history. The Hart and Fuller debate is an example of this tension. Hart says law and morals are different, while Fuller thinks a law must follow basic morality to be valid.
References
Hart–Fuller debate - Wikipedia
B.N. Mani Tripathi
B.N. Mani Tripathi
http://www.ijlljs.in/wp-content/uploads/2017/04/Jurisprudence_draft.pdf
https://lawogs.co.in/index.php/2021/12/22/morality-and-law-hart-fuller-debate/
https://blog.ipleaders.in/all-about-law-and-morality/
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