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HART - FULLER Debate

By Somitra Vardhan | Views 24360 (author-52319-somitra-vardhan-.html)
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Laws are written guidelines that outline what we must and must not do when acting as members of a society.
These are put into place by the government and judicial system to establish a fundamental and enforceable
code of conduct for the benefit of society. On the other hand, morality refers to a loose framework of
standards, precepts, convictions, traditions, and ways of life. Although morality cannot be enforced by law,
there is social pressure to do so.
This debate is about the relation of morality and law and the interrelations of the end of law and morality.
I am the debate master.

To understand the debate, we will have to first understand what law is and morality is.
Law
Positive Law Theory
It's also known as Legal Positivism or Imperative proposition of Law or
Austin's proposition of Law. It's also read as man- made law.
John Austin is considered as the author of positive law propositions.
Law is a command of the autonomous government backed by the sanctions.
According to Positivism, the constituents of Law, i.e.

Command, (set of rules or principles)
Sovereign, and (state i.e., independent authority)
Natural Law Theory

Natural Law means:
That Morality comes from nature.
Morality means our sense of right and wrong. It has a literal approach.
It's also read as 'made by nature'.
The father of the natural law proposition is considered by many to be Aristotle.
It also encompasses occasionally godly law i.e., law made by God.
The law is a system of rules that a society or government develops in order to deal with crime, business
agreements, and social connections. Law is always backed by permission of the leaders or the
constitution.
Law is a means of social control, deterrence and a way to get a just society. (When used rightly).
There are direct and rough corrections for those who defy the law.
Morality
It is a value, a morally correctTiruchirapalli
value. That emergedtobefore
Kuwait law.
It is a set of ethical principles that define what morally is right or wrong.
Being a value, it has no such significant body to enforce the moral codes resulting in the absence of
punishments and can be followed from or Rs21,530
not followed according to a person.
https://www.legalserviceindia.com/legal/article-11341-hart-fuller-debate.html 1/17
The main aspect that defines this right or wrong quality of action under moral terms is the intention of
the person committing that particular action.
Social generalities similar to ethics, religious training etc. directly influence in creating morality standards
in a certain community or country.
Hence, it's these social generalities that formulate morality, unlike the law that's formulated by the state.
Relationship between Law and Morality:

The overarching thing of the state is to promote people's well- being.
Individuals can also profit from political wisdom in order to become better people.
An existent can only become an ideal citizen if he adheres to the morality law of conduct.
As a result, there's a strong connection between law and morality.
And when a state functions under ideal moral rules can it be called an ideal state.
The foundation of ideal laws is morality. It will prop the exigency of an ideal state if the state works
under ideal laws grounded on morality.
For illustration, moral laws are those legislated with the end of barring immoralities and malpractices
similar as wine drinking, gambling, theft, dacoity, and murder.
They arouse spiritual passions in us and help us develop as humans.
Only similar innocently grounded rules are everlasting.
Progress is insolvable to achieve in a society ruled by moral principles.
In a state where crime is promoted, people will be too distracted with committing crimes to think about
their own success. As a result, they will return to their natural state of wantonness.
Citizens who live in a bad state will be bad, while citizens who live in a good state will be good.
As a result, the state bears full responsibility for upholding a high moral standard.
Generally, laws are the image of morality. In the utmost republic, there's no similar rule as opposed to
morality. Wilson is right in his observation that a state's law is the product of the creation of morality
within the state.
This is why the autonomous law- making authority pays close attention to the law of law- morality
closeness, which states that" the line between the illegal and immoral is vague."
Both public sentiment and stations are told by the state and legislation; law, in turn, represents public
opinion and thus serves as a mark of moral change.
While morality is concerned with regulating both the internal and external conduct of men, law is
concerned only with regulating the external affairs of men.
Time and again, we've been perturbed by the connection that exists between law and morality.
While it can be said that law brings within itself some reflection of public morality, it's also true that
certain effects may not be illegal according to law, but perhaps inferior to morality.
Differences between Law and Morality:

The following are some of the differences between law and morality:
Law is concerned with a person's individual liberty, while morality is concerned with collaborative
generalizations of what's good and evil.
Law governs a man when he's a member of a particular society, whereas morals govern a man indeed
when he's alone.
Laws consider a man's outside actions, while morals consider factors similar as inner resoluteness and
restraint direction.
Law is assessed by" external compulsion," while values appeal to an existent's free will.
Case Reference:
Queen vs Dudley and Stephens Case
For numerous days, the defendants, Dudley and Stephens, as well as two other gentlemen, Mr. Brooks and the
survivor, Richard Parker, sat on the boat. When it became clear that everyone would corrupt from thirst and
hunger, the defendants agreed to kill Parker for the sake of the others. A man who kills another to eat his meat
in order to escape hunger death is shamefaced of murder; still, he's in similar circumstances at the time of the
act that he believes and has fair reasons to believe that it's the only way to save his life.
In this case, the court held that one person cannot immolate another person's life to save his or her own. And
on these data, there was no substantiation of any necessity that could justify the captures in killing the boy and
they were shamefaced of murder. It becomes veritably important clear by the decision in this case that what
appeared to be innocently right from the eyes of the defendants was considered as a crime in the eyes of the
law.
Ahmedabad to Brisbane
from Rs52,552
Info
With everything understood now let's get to the meaty part.
Hart And Fuller Debate

Legal positivists and supporters of natural law have long engaged in argument.
For the positivists, morality and law are simply "what is," and law is fundamentally about a division between
"what is" and "what ought to be." In other words, the legal system is a self-sufficient system of "what is" and
does not require external justification from generalizations made by other people or from a different moral or
religious system.
However, proponents of Natural Law theory dispute this assertion. They contend that Law is founded on a
foundation that extends beyond the legal system, notably morality. Thus, the legal theoretical debate between
positivist theory and natural law theory has given rise to this debate between law and morality.
The positivist H.L.A. Hart and the natural law theorist Lon L. Fuller, who represent these legal viewpoints,
participated in protracted discussions about these two schools of jurisprudence.
Prof HLA Hart was a legal positivist and a critical moral champion. As a legal positivist, he states that it isn't
necessary that laws have to inescapably satisfy certain demands of morality. While admitting the close
relationship that exists between law and morality, he doesn't believe them to be interdependent on each
other. He states that the actuality of law can not be judged by its graces or faults. A law happens to live,
irrespective of our likes or dislikes.
Whether the law confirms a set of minimal moral norms isn't a pre-requisite for actuality of a legal system. It
isn't essential that a legal system must parade some conformity with morality. Laws simply don't cease to live
on the ground of moral exams.
Unlike the other legal positivists, Hart doesn't deny that the development of law has been profoundly told by
morality. Hart acknowledges that law and morals are bound to intersect at some point. thus, it becomes
necessary to distinguish between what law is and what law ought to be. According to Hart, legal practitioners
should display the probity or veracity about law, by concentrating on what it says rather than fastening on the
aspect on what one wishes it to be said.
Hart says that the substance of law consists of two different kinds of rules, i.e., the primary and secondary
rules. Primary rules are the duty assessing rules that have legal permission which imposes certain duties on
the citizens. Secondary rules are the power- conferring rules that define the manner in which the primary rules
are to be honored, changed and arbitrated. Secondary rules can be said to be rules about primary rules.
Together the primary & secondary rules form the heart of the legal system. And the principle of justice or the
rule of recognition is the ultimate rule that binds the legal system as a coherent total.
Hart acknowledges the problem that might occur due to lack of perfection in the words used in language of an
enactment, which he refers to as the core of the law. Not all cases might exactly fall within the core of the law.
occasionally standard cases of the words may not be sufficient to give proper effect to the law. Prof Hart calls
these as the problems of the penumbra.
It also becomes necessary that the meaning of the words in an enactment is decided first while applying legal
rules to the data of the case. Hart believes that the problems of the penumbra can be fluently answered by
way of judicial interpretation. In working the problems of the penumbra, Hart addresses the necessary
crossroad between law and morals.
The criterion which at times, makes a decision sound in similar cases is when a moral judgment is made about
what the law ought to be and in similar circumstances, morals can be of an influential factor in deciding cases
in penumbra.
Professor Fuller defines law as a particular way of achieving social order by guiding mortals according to rules.
It's the enterprise of subjugating mortal conduct to the governance of rules. According to Fuller, our legal
procedures are erected out of morals of justice, which have a moral aspect.
The procedures which are embodied in a legal system are innocently important in determining whether a set
of rules count as a legal system. He believes that for a law to be called a law in true sense, it must pass a moral
functional test. However, it doesn't count as law, If a rule or a set of rules fails to conform to this function.
While explaining the conception of morality, Fuller categorizes the term morality into two different set of
factors. One set comprises "morality of aspiration" and "morality of duty".
Morality of aspiration connotes a asked norm of mortal conduct which would seek to promote his stylish
interest. Morality of duty describes the norms which are followed by mortal beings at given time and place, so
as to ensure smooth functioning of the society.
The other set of moralities correspond to what Fuller calls as the "external morality of law" and "internal
morality of law". Internal morality of law is concerned with the procedure involved in making law. Internal
morality of law can be said to be a morality of aspiration rather than a morality of duty. And external morality
of law denotes the substantial rules of law which are applied in decision timber.
Fuller rejects the positivist approach to law. He urges the lawmakers to realize that there live other ways and
means to attain society's end rather than counting only to law. He believes that if the law makers realize this,
they can also make effective use of law as a machinery to regulate our society. Fuller asserts that not all
authorizations which have the power to impel compliance can be rightfully treated as law.
Fuller prescribes eight norms and says that for a principle to be respectable as law, it must be measured in
terms of these norms:
1. The principle must be expounded in a manner so that it can be generally applied.
2. Law must always be announced they must be communicated to the people to whom they are directed.
3. There should be clarity in law.
4. Law should be free from antithetical authorizations.
5. Laws shouldn't put on individualities insolvable norms of action etc.
Fuller says that law is terrestrial in its origin and operation. Law is made by man to suit the requirements of
humanity. Thus, a law has to have a concinnity of purpose for regulating mortals for attaining society's objects.
Fuller questions whether substantial rules of law can be neutral i.e., devoid of any relationship to morality. And
answer it in negative. He states that substantial rules have to inescapably be moral for promoting objects of
humanity. (External morality) A law should be fluid enough to acclimate to the dynamic nature of humanity.
And it's only possible if it takes into consideration the nature of man. Law according to Fuller should be used to
bring people together for fostering their stylish interest.
The debate between Prof. Hart and Prof. Fuller:

The debate between Hart and Fuller progressed with a case, where a German woman reported her partner to
the Gestapo for opposing the war strategy of Hitler. The husband was set up shamefaced and doomed to
death, which latterly was changed to military service.
The hubby endured the battle and began legal conduct against the woman later. In her defense, the woman
claimed that she had reported her hubby because he'd committed an offence under a Nazi enactment from
1934. The Enabling Act of July 12, 1934, legislated by the German Reichstag, established the underpinning
premise of Nazi legislation by amending the German Constitution to allow Hitler to issue rulings that were
antithetical to it.
It declared that Hitler's laws and will were the same. The German courts faced serious conflict to either decide
to observe the law or to observe the ethical duty to perform what people allowed was correct. There was an
imperative need to re-establish the prestige and authority of Laws and justice.
They agreed that declaring all governance's laws under Nazi rule, and citizens' conditioning following those
laws, illegal would affect in maximum social decomposition. still, they believed that some of the Nazi
mechanisms of regulations were so condemning to mortal values that it was apparent to discard conditioning
conducted through similar laws to convert the citizens that the new governance is against similar depraved
laws. As a result, the Court declared the woman shamefaced for doing negative to the clear heart and" sense
of justice" that's present in ordinary mortal beings.
Hart discarded the judgement of the German court stating as the Nazi laws were factual laws since they were
established under the Reichstag's Enabling Act, no matter how terrible and terrible they were. The recognition
rule of Hart was followed. According to Professor Hart, there were only two choices left with the judges
moreover to maintain the credibility of the legal opinions let the woman go free because the legislation
shielded her or apply retrospective legislation repealing the law within which she claimed protection.
Hart critiqued the Supreme Court for using the idea of morality to decide that the conduct of the woman was
immoral. Fuller accepted the Court's decision because it fosters regard for both morality and law by making
illegal laws illegal and thus carrying a high position of adherence to the law.
According to Fuller, all laws made during the Nazis' governance were non-laws. He claimed that the Nazi
absolutism was so anti-moral that there was nothing concrete in the institution that could be classified as a
law. He claimed that the Nazi laws demanded the essential sensibility and morality essential in the legislative
procedure, which gives it authority, making them obligatory to follow. Fuller contended that until Nazi laws
were recognized as non-laws, perpetrators of Nazi- period atrocities would go unpunished.
Conclusively from the debates and assaying of the point of contention produced by Harter and Fuller,
judgements and laws put a balance between law and morals. We've a rule of law for the major issues and
conflicts courts face, but it's insolvable to put every clause and situation for every issue in the enactment,
hence also the discretion of judges comes into the frame where ethics play a vital part to conduct justice. It's
considered that if legislation is to be embraced by the public, it must misbehave with the asked pattern. Morals
play a pivotal part in determining these morals.
So, who won? This question can be answered when one concretizes the approach, takes a side. I am on this
fuller side of the debate. Go on comment yours!
Bibliography:
https://legalstudymaterial.com/relationship-between-law-and-morality/
https://www.juscorpus.com/morality-and-law-hart-and-fuller-debate
https://pediaa.com/what-is-the-difference-between-law-and-morality/">
https://www.legalserviceindia.com/legal/article-7081-law-and-morality-relationship-including-critical-
analysis.html (https://www.legalserviceindia.com/legal/article-7081-law-and-morality-relationship-
including-critical-analysis.html)
Written By: Somitra Vardhan Dubey BALLB from DNLU will guide you through the debate.
Law Article in India
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File Copyright Online (https://www.legalserviceindia.com/copyright/register.htm) - File mutual Divorce in Delhi

HART - FULLER Debate

1 0 4 Blogger 2 pocket 2 Digg 0

I am the debate master.

According to Positivism, the constituents of Law, i.e.

Natural Law Theory

Relationship between Law and Morality:

Differences between Law and Morality:

With everything understood now let's get to the meaty part.

Hart And Fuller Debate

factors. One set comprises "morality of aspiration" and "morality of duty".

The debate between Prof. Hart and Prof. Fuller:

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