Table of Contents

ABSTRACT-........................................................................................................3

INTRODUCTION................................................................................................4

MORALITY AND LAW.....................................................................................5

 PROFESSOR HLA HART.........................................................................5

 PROFESSOR LONE FULLER..................................................................6

HART- FULLER DEBATE: Analysis.................................................................7

 Issue of Debate...........................................................................................7

 Analysis of the issue...................................................................................8

 Analysis of the debate.................................................................................9

APPLICATION OF CONCEPTS IN MODERN DAY.....................................10

BIBLIOGRAPHY..............................................................................................11
 Hart-Fuller Debate: Law V. Morality

ABSTRACT-

Hart-Fuller debate is a debate between two prominent professors of legal theory, a positivist
and a naturalist. The debate revolves around the issue that whether law and morality are
separate or co-relative. In this project, I have analysed, the issue of the debate in reference
with Indian Constitution, the arguments put forth by both the professors and also analysed
the views of other thinkers to understand the issue of the debate from a different perspective
and to bring forward new concepts. Further, I have also analysed the crux of the debate in
accordance with the modern day issues prevailing in the society. The sources I have relied
upon are the handouts, the books authored by prominent English authors and jstor articles.

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 Hart-Fuller Debate: Law V. Morality

INTRODUCTION-:

The term law and morality are not easy to define, though there are definitions from different
legal jurist and philosophers, but the term are interpreted in different manner by different
jurists. Thus, giving a universally acceptable definition of law and morality is not easy. Law
is defined as the set of rules which are deemed to be necessary at that time and place,
which are generally made up by the sovereign authority and are backed by sanctions
and punishment, if they are disobeyed.1

On the other hand, morals are the set of beliefs, standard and principles which are adopted in
the life of any particular tribe or a community at large. For eg.

(i)The act of covering head while going inside the temple.

(ii) The act of touching feet of elders as an act of showing respect.

Law and morality are co-related but are not interchangeable terms. Morality, as that of
law also have sanctions which are not legal but are backed by society and not an
organized machinery. A thing can be morally wrong legally right. For eg. Firstly, In the
Indian society, Homosexuality is lawfully right after the abrogation of Section 377 of the IPC
but it is morally the act is not taken in good sense. Secondly, the concept of euthanasia
which was upheld by the Hon’ble Supreme court2 is regarded by some religious
community as an act against morality and against God’s will as they say that God has
plans for everyone.

While some scholars believe that law and morality are interchangeable term and some
believes that law is clearly distinguished from morality. This contrasting view between law
and morality is also discussed in the Hart- fuller debate.

1
G.W. Paton, A TEXTBOOK OF JURISPRUDENCE 77 (Oxford 4th ed. 2007)
2
Common Cause v. Union of India and Annother, (2018) 9 SCC 501.

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 Hart-Fuller Debate: Law V. Morality

MORALITY AND LAW:

 PROFESSOR HLA HART -:

Professor HLA Hart is of the legal positivist, who is also regarded as a soft positivist. He is
of the belief that law and morality are two different concepts.

Hart believes that people who that a positive law is not valid because it fails to meet
cetain external criteria muddy the water.3 Here in the above statement, “External criteria”
is the external forces which the society puts considering the things to be moral and immoral.
He is of the view that positivist approach makes the people face up the real issue. The
positivist approach lets the people to believe what the law, “that law is the law”.

However, he was different from other legal positivist like Austin & Vinogradoff, were
of the view that morality was no role to play between in law. To resolve the issue of
moral scrutiny of the law, Hart introduced the concept of “Minimum Content of
Natural law” in his positivist theory. This concept of “Minimum content theory of
natural law” is based on the premise that the laws should be practically possible and to
make them practically possible, a little bit of Interference of morality in the legal
system is permissible. In his book “Morality of law”, “he puts up that without such
content, laws and morals could not forward the minimum purpose of survival which
men have in associating with each other4”. This concept of law brought the new concept of
Modified positivism. He also gave the concept of “penumbra”, which he defined as a
problem which may occur due to lack of precision in the words used in language. He
says that while interpreting these words, the intersection between law and morality becomes
necessary.

Example-

 The interpretation of word “reasonable” in the contracts act, the reasonable time for
delivery of goods.

3
supra note 1
4
HLA Hart, The Concept of Law, Revised edition, Oxford University Press Publications, 2002 at p. 185-200

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 Hart-Fuller Debate: Law V. Morality

 The interpretation of word “equality” in the Indian Constitution under Article 14.
Interpretation as “equality among equals”.
 PROFESSOR LONE FULLER-

Prof. Lone fuller was a noted legal philosopher and a well known critique of legal positivism.
He was one of the legal supporters of modern natural law philosophy. He emphasised the
concept of reason and believed that law and morality are necessarily co-related. He believed
that good law is the one which corresponds to justice and morality. He denied the concept of
“is” and “ought” aspect of the law. Moreover, he believed that law to be called in true
sense must pass through a moral functional test and he if the law fails to comply with
the test of morality then it does not count as law. However, he was modern natural law
philosopher and rejected the concept of traditional religious forms of natural law theory.
He was of the view that these natural laws touch one of the most vital of human
activities, they obviously donot exhaust the whole of man’s moral life.

“In his book, Morality of law, he explains his concept of “Inner morality of law” with
the help of an allegory of Rex, who was a monarch and failed innumerable times in
making the law and finally when he succeeded in making the law, that law of no use as
the society had developed. Therefore, he proposes the eight standards which should be
followed by the government to make laws in the legal system.”

“Eight standards are-

 “The principle must be expounded in a manner so that it can be generally applied.

 Law must always be promulgated, i.e. they must be communicated to the people to
whom they are directed.
 Newly formed principles of law should always be applied in a prospective manner.
Retrospective application of law should only be permitted on rare occasions
depending upon exogenous circumstances.
 There should be clarity in law.
 Law should be free from contradictory mandates.
 Laws should not impose on individual’s impossible standards of action.

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 Hart-Fuller Debate: Law V. Morality

 Abiding by previously announced norms, i.e. stare decisis is desirable according to

Fuller, as the individuals are spared of the changes that they are otherwise
subjected to in case frequent alteration of laws.”5”

According to him any law to be considered to be a valid law need to fulfil all these pre-
requires, and the 2law which fulfills it only can be considered to be a valid law. Further,
Fuller focuses on the Procedural law. He regards natural law not to be the highest but
the lowest law. “He compares natural laws to the Natural laws of carpentry, or at least
those laws respected by a carpenter who wants the house he builds to remain standing
and serve the purpose of those who live in it.”6 He considers that if the natural law is not
correct then it’s the duty of the citizen to deny these laws.

HART- FULLER DEBATE: Analysis

• Issue of Debate-

The issue which sparked the debate between Lon Fuller and H.L.A. hart was the use of law
and the legal system in the Nazi Third Reich. It was about the legality of laws which were
passed during the Nazi era in Germany. The laws passed during the Nazi Germany that
prosecuted the person for saying defamatory or derogatory words about the Hitler.

“The debate between the law and morality was started after the end of Nazi era in Germany
in 1945. In,1949, a women was prosecuted under the German Criminal Code, 1871 which
existed before the beginning of Nazi Era. She was prosecuted under the offence of
depriving a person illegally of his freedom. She deprived her husband during the Nazi era,
by denouncing him to a war time Nazi Authorities as having made insulting remarks about
the Hitler, while her husband was on leave from the army. In her defence, she claimed that
she should not be prosecuted as at the time when she denounced her husband, the law under
the Nazi statute prohibited making of statements detrimental to the government.”

5
Sonali Banerjee, “The Relevance of the Hart & Fuller debate relating to law and molarity-A critical analysis”,
(2017) vol. 4, Issue 2,International Journal of Law and Legal Jurisprudence Studies
6
Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd, 2000 at p. 95-118
& 187-225.

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 Hart-Fuller Debate: Law V. Morality

• Analysis of the issue-:

The Court was of the view that the Nazi statute, being “contrary to the sound conscience and
sense of Justice of all decent human beings”, did not support women’s defence and she
was found guilty for the same.

The analysis of the above issue shows-

Firstly, there were contradictions between the laws prevalent at the time as the time when the
women reported of the act of her husband; it was treated as good gesture according to Nazi
Statute, 1934. After the end of Nazi era and formation of new government, the same act
of reporting of the crimes was treated as an act in violation of the German Criminal
Code, 1971.

Secondly, there was application of laws retrospectively which can sometimes act unfair. The
act which women committed in accordance with the laws in the Nazi Statute, 1934 became
an offence once the war was over and the original laws were revived.

These both the issue has also been laid down by LON-LUVIOUS FULLER in his eight
principles. Fuller emphatically stated that fulfilment of all these requirements is necessary for
establishing rule of law in the society. He called these requirements as “inner morality of
law” which represents the procedural aspects of the modern natural law theory.

Retrospective effect of the laws- (example of Indian Constitution)-:

The retrospective implementation of the laws governing offences is not generally

preferred. It’s not fair to prosecute a person for an act which when he committed was
not an offence but now has become an offence. Lon fuller, in his book “The morality of
law” explains through a allegory which he often regards as a “Fair lengthy allegory”, that it
is unpleasant to have one’s case decided by rules when there was no way of knowing what
those rules were.7

7
Ibid.

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 Hart-Fuller Debate: Law V. Morality

Article 20(1) of the Indian Constitution defines about the ex-post facto laws prohibiting
retrospective effect of the laws governing offences. It states that-

“no person shall be convicted of any offence except for the violation of law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence8.”

• Analysis of the debate-:

The debate revolves around the concept of Positivist and natural law or the concept of
morality. He spoke in favour of the convictions under Nazi laws. He analysed the Nazi laws
from a positivist point of view and rejected the notion of the naturalist that because of the
circumstances in which law was made, it should be deemed invalid. In the modern day
society, positivist approach cannot be strictly followed which HLA hart also justifies by
giving the concepts of “Minimum content theory of natural law” & “penumbra” as
discussed above, which are different from other positivists. But he regards the superiority
of positive law over Natural law. In a sense, he shares a common ground with “Fuller” a
naturalist as both believed that the law should be consistent with the morals of the society
but the intensity of involving natural law in positive law is different.

As the society is dynamic, everyday is a new challenge for the legislature and judiciary.
Prima facie, what I think that the view of Prof. HLA Hart is more acceptable than that
of Prof. Fuller as Hart considers the involvement of “natural law” to an extent. Though
Prof. Fuller is a naturalist but he considers natural law to be lower law and he gave the eight
principles on which a good legal system should be based upon. These principles may not be
consistent with every law which is formed. On the other hand, Prof. HLA Hart does not
give a cut short principles and his concept of “Minimum content theory of Natural law”
remains a subjective concept.

However, it does not mean that both the ideologies cannot exist together; an ideology may be
good in one situation and the another in other situation. In modern era, as the law is

8
INDIAN CONST. art. 20, cl. 1.

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 Hart-Fuller Debate: Law V. Morality

changing, we as a society believe in human dignity and morality but on the other hand
we also have the provisions of Capital punishment.

APPLICATION OF CONCEPTS IN MODERN DAY-

Laws in the countries have emerged to an extent that it’s imbibed with almost all the
natural law and concept of morality. The laws in the country keeps on changing as the
meaning of the term Morality keeps on changing. Morality is generally regarded as the
view of the majority. An act may be moral today, can become immoral tomorrow and
vice versa. But it is pertinent to mention here that every law which is opposed by the
majority is not a bad law. Legislature in extreme circumstances and to control the law and
order in the society has to take some steps which may not be moral. For Example- The recent
amendment to Motor vehicles Act, that increased the amount of fine for not following the
traffic rules is highly criticised by the people and considered as an evil law and against their
dignity. This is the problem which HLA hart has also dealt with, he writes that “So long as
Human beings can gain sufficient co-operation from some to enable them to dominate
others, they will use the forms of law as one of their instruments.”

Further, the concept of Natural and Positive law can also be discussed from the example of
Live-in relationships. The younger generation in today’s time is practicing the concept of
“live in relationship”, which was at a point of time was considered to be against the morality.
The judiciary has also changed the laws according the change in the mentality of the people,
what we call the “Minimum content of Natural theory of law”. Courts have started giving
the rights to females in live in relationship to claim maintenance under Section 125
CrPC from the live in partner.

Further, while giving the judgments on Homosexuality, Adultery etc., Hon’ble Supreme
court has also taken the cognisance of the Natural law theory in relation with legal
positivist theory. Thus, it can be suggested that Legal positivist theory and Natural law
theory can fit in the same legal framework.

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 Hart-Fuller Debate: Law V. Morality

BIBLIOGRAPHY-

 Books & Texts-

• A Textbook of Jurisprudence, G.W. Paton. (Oxford edition)
• Jurisprudence, Hilaire McCoubrey & Nigel D. White.
• Studies in Jurisprudence and Legal theory, Dr. NV Paranjape.
• The Morality of Law, LON FULLER.
• HLA, Hart, The concept of law, Revised Edition, Oxford University Press Publication.

 Database-
• Jstor.
• International Journal of Law and Legal Jurisprudence Studies.

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