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Hart and Fuller - Worksheet 7

Avindra Ramnauth

The Hart-Fuller debate

When did the Hart- Fuller Debate begin? This began in the 1950’s where the effects of world-war 2 was
still being felt. It was felt that the extreme positivist view was mainly responsible for the injustice and
atrocities of the Third Reich.

What question was discussed as part of the debate? The question , should morality be separated from
law? was contested again.

What was Fuller’s response? Fuller’s response was no, Fuller contended that law cannot be separated
from morality, it is built into our legal principles. What did Fuller’s test propose? Fuller proposes a test
for the law, a moral test, however if it passes through that test and fails to be functional then it should
not be called law at all.

What did Fuller define law as? Law (defined by Fuller)is a particular way of achieving social order by
guiding human behavior according to rules.

What did his test reflect? His test reflects what he calls the inner morality of law.

What are the 8 principles of legality? There are 8 principles of legality, however varying degrees of
validity and functionality will determine where on the scale of morality that law stands, these are:

1. laws should be general;

2. they should be promulgated, that citizens might know the standards to which they are being held;

3. retroactive rule-making and application should be minimized;

4. laws should be understandable;

5. they should not be contradictory;

6. laws should not require conduct beyond the abilities of those affected;

7. they should remain relatively constant through time; and

8. there should be a congruence between the laws as announced and their actual administration.

What does Fuller contend? I am sure you can agree that a wicked system can pass through this test,
however Fuller does not contend that all laws be moral, it is a scale of morality. He manages to put
together a test that can be applied to legal systems differently, simply put, one country’s system may be
evil but still law, another country may be higher up on the scale of morality.

What did Fuller question? This can be questioned as Fuller already mentions that if this morality was
completely eradicated then it should not be called law in the first place, why now is he contending that
even though it lacks moral character it is still law?

What was Hart’s view of Law and morality? Harts view: Law is separate from morality, it is more what
the law is than what it ought to be. Similar views were shared over centuries and can be traced all the
way back to Hobbes, who believed the law should be laid down by a sovereign.

Do judges make law? The answer is yes for Hart, given a penumbra case a judge will find it difficult to
apply the law in its bare sense, it must be done in context so they adopt new rules that fit in with the
law, if they go too far however it would raise obvious questions. A judge can also follow examples listed
in the guidelines which can sometimes be non-exhaustive. Hart thinks that law has many gap areas.
These penumbra cases show that law is not clear and has no clear answer for the decision, so the judges
have to clarify the existence law by making new laws. At the same time, they fill in the gaps of these
laws.

The Morality of Law- Fuller (1964)

- Is there any distinction between law and morality for Fuller? No Distinction between law and
morality
- What is law used for for Fuller? The law is used to regulate conduct to promote social order
- Can law be applied retrospectively ? Law can be applied retrospectively, however this should be
at a minimum and should only amend irregularities.
- Obscure legislation is not functional, if people cannot read them, how can they obey them? We
must remember that Fuller’s theory is based on functionality so this is an important point.
- Law must not keep changing rapidly if it is to produce stable expectations of what is required of
its citizens. But this does not mean that they cannot change in order to meet the changing needs
of society.
- What is the key feature for Fuller? The final and key feature for Fuller is that of congruence
between official action and declared rule. It is of utmost importance that what officials do must
be in accordance with the law, otherwise what the rules require and their application would
differ in such a way as to leave citizens subject to the arbitrary power and will of those in
authority.

What happens if a legal system lacks one of the 8 desiderata? These are some main points that
suggests Fuller’s secular NLT. IF a legal system is lacking seriously in one of the 8 desiderata, then “ it
results in something that is not properly called a legal system at all." "Government says to the citizen
in effect, "These are the rules we expect you to follow. If you follow them, you have our assurance
that they are the rules that will be applied to your conduct."

Hart on morality:

- Did Hart agree with the natural law approach on morality ? Disagrees with the natural law
approach.
- What did Hart say about the content of morality? Agrees that there should be some minimum
content of morality
- What did he say about the minimum content? He argues that natural law can be understood as
having a "minimum content" without the metaphysical extravagance of classical natural law
theories. The minimum content holds that human beings have laws and morals that promote
survival and well-being by helping men to associate with one another. In this way, natural facts
about how human beings can cooperate effectively are tied to moral and legal rules.
- What did the minimum content of natural law presume ? The minimum content of natural law
presumes that humans possess limited altruism; they will cooperate and largely avoid trying to
exterminate each other, but they cannot be made perfect and beneficent and
- We have limited resources, morality plays a part in our use of them, we should not be fighting
over them but seek to amplify them.
- Human reasoning is limited, humans can often make ill-informed decisions. The knowledge of a
human is limited.

What did the natural law theory for Hart encompass? Natural law theory of this sort
encompasses a lot of good sense and helps to explain why purely formal conceptions of law are
inadequate. Law need not be determined by 'the' meaning of the words or that legal systems
'just do' produce sanctions. We have a standard by which to judge the law by observing natural
facts. The minimal natural law view also acknowledges a third class of facts: contingent but
important facts about the constitutions of human beings.

What did Hart say re secondary rule herein? The gain to a society that adopts secondary rules is
enormous but the centralized power that comes with it can always be abused in a way that a
regime of primary rules cannot. One way to limit that power is to force law to conform to
natural law, so the claims of natural law need scrutiny.

Is law really connected to morality? Hart considers ending the chapter by discussing these
points and how they link to morality:
- power and authority,
- the influence recognized morality has on the law,
- interpretation of law in terms of morality,
- criticism of the law in moral terms,
- principles of legality and justice and
- legal validity and resistance to law.

Each of these views is criticized for missing important features of the law. Hart claims that legal
positivism has some merits in that it recognizes law as a set of really existing social facts but that
alone it cannot provide the grounds for criticizing the law in the rich way we typically think
available. We need a concept of law that both includes the idea of law as really existing and
capable of contravening morality but that is also subject to the demands of morality.

What type of positivist was Hart?


Hart describes himself as a soft positivist because while he thinks law is essentially a really
existing set of rules, moral rules can be employed within rules of recognition that help make
laws determinate. In this way, some natural law theory comes in the back door to help criticize
laws from an external perspective

Other notes:
- Explain the importance of the Nazi Informer example: The Nazi informer example is used
throughout Hart and Fuller’s debate. The defeat of the Nazi regime gave the initiative for the
rebirth of Natural law. This was adopted by Radbruch who agreed with the position of the
German courts in the case. The court’s approach was largely concerned with natural law and
that the practices in this case were contrary to “sound conscience and sense of justice to all
decent human beings.” Hart empathizes with Radbruch but still maintained that law is law.
However, this does not mean that Hart is siding with the Nazi regime; in fact he termed it as
“hell on earth created by man for man.” He simply argues that Naturalists were confusing the
position, law and our reaction from it are too different things. It is confusing to say that if law is
rested on a stratum of evil that it is not law.
- How did Fuller rebut this? Fuller rebuts this, agreeing with the decision of the courts in the Nazi
informer case; he argues that for something to even earn the title of law it has to go through a
test. The “tinsel of the legal form with which the Nazis sought to disguise evil can only be
exposed by analyzing it. Hart ignores the bare essentials of what is needed in a legal system. It is
good to seek order, but what good is it if the order made promotes evil and chaos?
- Is morality and law interchangeable for Hart? Hart still contends that morality and law are not
interchangeable terms, a rule of law however morally iniquitous is still valid, and one cannot
impugn its validity based on lack of morality.
- What did Hart concede? Hart concedes that there must be some minimal common universal
element for a system to be viable. They include taming the use of violence because of how
vulnerable humans are, we may be an unmatched intellectual species but we pale in comparison
to the physical strength of let’s say, a polar bear or an elephant. Approximate equality is
another point, mutual acceptance of our duties and obligations is the bare necessary for a legal
or moral system in other words there must be degrees of self-control. The third point Hart
makes is that of Limited Altruism, he contends that altruism in its purest sense would leave
society in chaos, we need to have some degree of concern for others, it is crucial to a social life.
Wellbeing here captures both physical and mental health. Like his other limits, Hart recognizes a
limit we cannot really control i.e. Limited Resources. Food, clothes and shelter are among the
primary needs of humans and there should be some degree control which reflects the respect
needed for the preservation of these needs e.g. property and the law of theft or how the law of
nuisance affects and control the use of property. The last limit is that also which cannot be
controlled, and that is limited understanding and strength of will, Hart puts it as being able to
understand who has broken the law and how to we place sanctions if needed to deal with it.
Here of course we need some element of human reasoning.
- Hart terms these as truisms, and they would be needed for the continuity of a proper legal
system and humans would retain their salient characteristics.
- Fullers secular NLT and still believes that law is an effort to aid in satisfying man’s common
needs.

Criticism of Fuller. You pointed out three criticism of Fuller please explain each one.

- Friedmann notes that Fuller’s model can be used to govern the Nazi Regime. However, Fuller
claims that any departure from his model is an affront to the dignity of the citizen. It then should
be asked, if a system chooses to ignore these rules in any combination, how are we to react?
How are judges to react? Fuller answers this quite controversially, the less inner morality there
is the more it deprives law of its true nature. But that does not necessarily mean it is not law. If
we look back at Fuller’s earlier comments he mentioned that disregard for his desiderata would
mean the word “law’ has not earned that title, in other words he is contradictory.
- Critics have also criticized both of them for their inconclusiveness, largely from the failure to
define morality and law. The words of Gross in his Philosophy of law 1980 asks “ is there an
indispensable minimum moral foundation for any legal system determined by certain universal
features of the human condition and by principles of procedure that cannot be systematically
ignored?
- However, Hart and Fuller agree that immoral and unjust legal systems are unlikely to be stable
and long-lived. Lacking morality and justice, cannot command the allegiance of the people and
must depend upon repression. When the repressive regime falls, its system falls with it.

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