SLOT C

JURISPRUDENCE
ANNIE WILSON, FACULTY OF LAW, SAVEETHA UNIVERSITY
12/03/24
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
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 correct value. That emerged before 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 or not followed according to a person.
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.
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.
Queen vs Dudley and Stephens Case 1884For 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.
H.L.A HART: “POSITIVISM AND SEPARATION OF LAW AND
MORALS”FULLER: POSITIVISM AND FIDELITY TO LAWHART:
(BOOK) CONCEPT OF LAWFULLER: (BOOK)MORALITY OF LAW
HLA Harts’ view
Hart is a positivist, so he does not believe that there is a necessary
connection between law and morality. While he does acknowledge
that there is a close relationship between law and morality, and does
not disagree that the development of the law has been immensely
influenced by morality.
However, he does not believe that they are interdependent on each
other. As such he feels that a line should be drawn between what law
should be, and what law ought to be.
The fact of the matter remains, that a law does not stop being law
due to moral criticism of it. Hart believes that officials should display
truthfulness about the law by concentrating on what it says rather
than focusing on what one desires it to say.
According to Hart the law consists of primary and secondary rules.
Primary rules are duty imposing rules on the citizens and have a
legal sanction. Secondary rules are power conferring laws that
describe how laws should be recognised, adjudicated or changed.
Hart says these rules form the heart of the legal system and the
rule of recognition is the rlue that binds the legal system as a
whole.
So, Hart advocates that conformity to a certain moral standard is
not required for a legal system to exist. Hart acknowledges that law
and morals are bound to intersect at some point, for instance
where a case comes up where the wording of the relevant statute
is not sufficient to give effect to the purpose of the law (professor
hart refers to these as problems of the penumbra), Hart says that
such cases can be solved by way Judicial interpretation. A decision
can be made about what the law ought to be, and moral factors
play a crucial role in deciding such hard cases.
Fullers’ view
Fuller is a naturalist, and he sees laws as a way of achieving social
order by regulating human behaviour through laws. He believes that
our legal systems are derived from the norms of justice which have a
moral aspect. He argues that for a law to be valid, it must conform to
a certain moral function test.
These are the eight desiderata set out by Fuller; (I) Rules (ii)
published (iii) prospective (iv) intelligible (v) not contradictory (vi)
possible to comply with (vii) reasonably stable through time (viii)
followed by officials.
Fuller implores law makers to take into consideration each of the
above before determining whether a law is valid.
Fuller prescribes eight norms and says that for
a principle to be respectable as law, it must be
measured in terms of these norms: The principle
must be expounded in a manner so that it can be generally
applied.
1. Law must always be announced they must be

communicated to the people to whom they are directed.

3. Law should be free from antithetical authorizations.

4. Laws shouldn't put on individualities insolvable norms of

action etc.
Fuller goes further to explain morality by categorising it in two;
Morality of aspiration and morality of duty.
Morality of aspiration suggests a desired norm of human
conduct that promotes his/her best interest.
Morality of duty describes the standards people follow to ensure
smooth functioning of society. Other forms of morality
discussed by Fuller are “Internal morality of law” and “External
morality of law”. the former is concerned with procedure of law
making while the latter focuses more on substance rules of law
which are applied in decision making.
fuller rejects the positivist approach to law and argues that
society’s goals can be achieved by other means rather than
relying solely on law.
Upon examining both Hart and Fullers view on what the law is
and how it relates to morality we find that Fuller’s naturalist
ideals offer the most solutions to the problems in the modern
day legal system.
an example of this is where Hart says that we should identify
what law is and what it should be, this still leaves the question,
‘why do we obey the law?’ Is it because of the sanctions
behind it? or is it, because we accept it?
As Hart believed. Would we refrain from committing rape if
there was no punishment? Or Perhaps law is obeyed because
it is the most convenient and just way of organising our
societies?
All these questions will have a different answer depending on
one’s philosophical point of view.
on the other hand, believe that we may also obey law because
we believe that it is right or morally correct. This last suggestion
leads me to my next point. Are we obligated to obey the laws of
a state if we deem the state immoral? examples of these states
are: the apartheid laws of South Africa or the Nazi laws of
Germany. These were all legitimate laws as they were passed
by their relevant Parliaments. But did those laws have moral
authority?
To answer this question, we are going to focus the Nazi laws
and applying the above views of Hart and Fuller so as to prove
why we believe there is a link between law and morality.
The debate between Hart and Fuller focused on two
central questions. The first was whether law can exist
without morality. Hart argued that it can, and that the
law is not necessarily moral or just. Fuller, on the other
hand, argued that law without morality is incomplete,
and that the law should reflect certain moral principles.
The second question was the role of morality in legal
systems. Hart argued that morality should not be used to
criticise legal systems, but should be kept separate from
them. Fuller, however, believed that morality has an
important role to play in legal systems, and that legal
rules should be designed to reflect certain moral
principles.
A good example this point is that of the grudge informer case that was
discussed in the Hart- Fuller Debate Published in the Harvard law review
because it demonstrates the differing views of naturalism and positivism,
particularly in the context of Nazi laws. Facts of the case are as follows:
“A German woman denounced 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
Fuhrer, which carried the death penalty. Although sentenced to death he was
not executed but was sent as a soldier to the Eastern front. He survived the war
and upon his return instituted legal proceedings against his wife. The wife
argued that she had not committed a crime because a court had sentenced her
husband in accordance with the relevant law of the time. However, the wife was
convicted of ‘illegally depriving another of his freedom’, a crime under the Penal
Code, 1871, which had remained in force throughout the Nazi period. The court
described the Nazi laws as “contrary to the sound conscience and sense of
justice of all decent human beings” (1951)”
If we follow Harts positivist views, hart believes that no matter
how heinous the Nazi laws were, they were in accordance with
the Enabling Act passed by the Reichstag (lower house of
Germany’s national legislature), and were valid.
It satisfies Hart’s rule of recognition. We can find this very
disturbing for many reasons.
Fuller on the other hand recognised the Court’s decision
because it created respect for law and morality, and by using
his 8 desiderata Fuller states that all Nazi laws were illicit. This
justifies the courts overlooking of the earlier 1934 act and
upholding the wife’s conviction. Without the courts applying a
moral concept in the application of the law, the courts would
have had to acquit the wife
According to Hart, the Courts were left with only two options to
preserve the integrity of the judicial decisions, either to let the
wife go free because the statute protected her, or make a
retrospective laws repealing the statute under which she
claimed protection, and declaring the acts of the perpetrators
of such atrocities as criminal.
Even though Hart did not favour the retrospective application of
criminal statutes, he argued that the Nazi regime could have
been considered an exceptional circumstance for the
application of retrospective of laws, if the Courts were afraid
that Hitler’s accomplices would be acquitted. Hart was strongly
against the Court’s decision to introduce a concept of morality
and deciding the statute which protected the woman was no
law at all.
Fuller contended that Hitler’s regime was so harmful to morality,
that there was nothing in the system that could qualify to be called
a law as they did not comply with his desiderata. He stated that the
Nazi laws lacked the necessary internal morality required in the
process of law making, which gives laws respect and makes them
obligatory to be followed by citizens. Fuller believed that unless the
Nazi laws were treated as non-laws, the perpetrators of evils under
the Nazi regime would go unpunished.
We can say that hart is mistaken because Hart’s arguments fail in
the opinion on the grounds that hart himself becomes inconsistent
when he concedes to the fact that his rule of recognition requires a
minimum morality of law. Impartiality in application of a rule is a
moral standard which is necessary in any legal system
Fuller believes that Hart is aware of the internal morality of law,
but refers to it justice in the administration of laws. which in the
opinion indicates that there is indeed a connection between law
and morality. To Harts credit he tries to justify his position that
morality is not always necessary in the application of the rule of
law, Hart, presents us with a hypothetical illustration.
Supposing a law forbade the taking of a vehicle into a park, and
is not specific as to which type of vehicle. An apparent meaning
of the term ‘vehicle’ would imply that cars are prohibited from
entering the park. However, in absence of any clear definition of
the term vehicle, would toy cars or airplanes qualify as vehicles?
And, would the rule of prohibition be equally applicable on them?
Hart emphasises that interconnection between what the law is
and what the law ought to be in the penumbra does not depict
how the law actually functions at the core.
 Harts arguments here to be weak because, that language does
not determine the core of legal rules. this is because it is not
possible to determine what the wording of a statute in this case
the term ‘vehicle’ without first looking at the purpose behind the
rule.
Fuller also argues that it is not possible to determine if a rule
applies to a given situation, without understanding the purpose
that the rule was supposed to serve by referring to the objectives
of entire provisions of law rather than seeking to find meaning of
individual words.
Penumbra refers to the attempt to determine meaning, where the
law is ambiguous.
Hart identifies the issue that may arise as a result of an absence
of accuracy in the terms employed in the language of legislation,
which he refers to as the law's core.
He identifies the problem as one of interpretation of words and not
an issue of core and penumbra as claimed by Hart. Fuller
emphasises that fidelity to law can be only achieved if the law is in
accordance with morals at all stages, be it at the time of making of
the law or its application by the court.
People will comply with the law only if they are convinced that the
law is based on strong moral foundations enacted for their
common good.
Fuller further criticises Hart’s definition of law which insists that
law and morality needs to be separated. Fuller contends that there
cannot be a specific definition of law. Likewise, even morality
cannot be defined accurately. Therefore, Fuller argues that
because there is no precise definition for law and morality, it is
pointless to argue that both of them are separate and this offers a
much more compelling argument than any of Harts positivist
claims.
The issue with principles of morality is that various societies will
have different moral principles. So in pluralistic societies such as
ours, there will be conflicting ideas of what is, or not moral.
For example, in Muslim countries it is considered immoral for a
woman to walk outside without a hijab, whereas in the west this is
not considered immoral. There is also the issue that morals tend
to change over time, so what was deemed immoral 50 years ago
may no longer be immoral.