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Hart-Fuller Debate

Harts position On the one hand Hart held that there is no necessary relationship between a legal system and the ideas of justice or morality. A legal system can function effectively though it is neither just nor moral. The Nazi regime would be a good example of this point. It discriminated against individuals on racial grounds. In Harts view it was a legal system. The Nazis argued that racial distinctions were relevant and reflected the morality of their society. It was, therefore entitled to discriminate and still claim it was treating like cases alike. Hart argues that the question of what is law must be separated from the question of whether it is moral or just.

Lon Fuller (American jurist born 1902)

On the other hand Fuller (Natural Law theorist) maintains that law and morality cannot be so neatly distinguished and that the post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system 'legal' and to call its rules laws' was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.

The "Grudge Informer"

The 'grudge informer' problem illustrates a fundamental difference of views about the nature of law and its relationship with morality. It is called the grudge informer to cover events where one person reported another for trivial crimes, which nevertheless carried the death penalty (for exampled speaking against the Fuhrer or the government), to settle feuds or to get revenge, but effectively using the state machinery to try to commit murder. Fuller records the following case: After the War a German woman was prosecuted for denouncing her husband to the authorities in accordance with the anti-sedition laws of 1934 & 1938. He had made derogatory remarks about Hitler, The husband was prosecuted and convicted of slandering the Fuehrer, which carried the death penalty. Although sentenced to death, the husband was not executed but was sent as a soldier to the Eastern front. He survived the war and on his return instituted proceedings against his wife. She argued that she had not in fact committed a crime because a court had sentenced her husband

in accordance with the law of the time. She was convicted of 'illegally depriving another of his freedom' (rechtswidrige Freiheitsberaubung), a crime under the Penal Code, 1871, which had remained in force throughout the Nazi period. The Nazi laws were, the court said, "contrary to the sound conscience and sense of justice of all decent human beings," (1951). There were other similar prosecutions.

Immoral legal systems collapse when the regime falls

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. tm