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The Hart-Fuller Debate E-mail this
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Natural law theory holds that along with the positive law there exist
certain ideal principles or values to which the positive law should
correspond if it is to be regarded as genuine law. Thus, while positivism
holds that to be valid law, all that is required is that it should issue from
a competent legislator after following the prescribed process, natural
law theory requires in addition that such law, to be valid, must conform
to some ideal principle (which may emanate from morality, reason,
God, or some other such source).

The Hart-Fuller "debate" illustrates the opposing points of view of

positivism and natural law, particularly in the context of Nazi laws.*

The "debate" began when Hart published his Holmes Lecture (entitled
Positivism and the Separation of Law and Morals) delivered at Harvard
Law School in April 1957 and published in Harvard Law Review in 1958.
The reply was given by Fuller in his article "Positivism and Fidelity to
Law - A reply to Prof. Hart", also published in 1958 in Harvard Law
Review.

Hart's rejoinder was in his book The Concept of Law, to which Fuller
replied in the rst edition of his book The Morality of Law. To this Hart
gave his reply in 1965 in Harvard Law Review. Fuller replied in the
Second (Revised) Edition of The Morality of Law, published in 1969.
This ding-dong, inconclusive series of repartees and rejoinders led
Cotterrell to remark in his book The Politics of Jurisprudence:

"There is often a sense that in the battle of arguments no one ever

wins, and further that there are no reliable criteria by which one could
recognize victory anyway. The disputes seem timeless, the issues never
resolved. Decade after decade positivists and natural lawyers face one
another in the nal of the World Cup. Victory goes now to one side, now
to the other. The legal theorist can only cheer or jeer, label his
opponent a moral leper or a disingenuous romantic."

It is submitted that the theory of dynamic positivism** really puts the

debate to an end.

Dynamic positivism certainly supports Hart's view that Nazi laws were
also laws (though wicked laws). But the reasons which dynamic
positivism gives are deeper and more consistent than those of Hart.

A typical example considered in the Hart-Fuller debate was of the wife

of a German who reported her husband to the Gestapo for criticizing
Hitler's conduct of the war. The husband was tried and sentenced to
death, but his sentence was converted to service as a soldier on the
Russian front. The husband survived the war, and after the war
instituted legal proceedings against his wife.

The wife's defence was that her husband had committed an o ence
under a Nazi statute of 1934. Post-war Germany, however, held the
wife liable.

Hart argued that the decision of the court was wrong, as the Nazi law of
1934 was a valid law (as it satis ed his "rule of recognition"), whereas
Fuller contended that the Nazi regime was so "lawless" that nothing
therein could qualify as law.

The basic principle of Nazi law was laid down in the Enabling Act of July
12, 1934 passed by the German Reichstag which amended the German
Constitution by permitting Hitler to issue decrees inconsistent with the
Constitution, including decrees passing the budget, making treaties,
and even amending the Constitution. As declared by Goering to the
Prussian prosecutors on July 12, 1934 "The Law and the will of the
F hrer are one".

The nature of Nazi justice has been described in William Shirer's The
Rise and Fall of the Third Reich, under the heading "Justice in the Third
Reich" (at p. 369). Nazi racial laws regarded Jews as inferior beings and
treated them inhumanly. There was total arbitrariness and terror
during Hitler's rule; the Gestapo being empowered to arrest, torture or
even kill any person without any charge or trial. Ultimately 6 million
Jews were murdered in gas chambers, apart from the other atrocities
committed by the Nazis.

Now Germany had been industrialized long before Hitler came to

power. Democracy and the rule of law are necessary concomitants of an
industrial society. This is because:

(1) Industrial society is based on science, and science is based on the

study and application of objective laws. Industrial society simply
cannot function on the basis of arbitrariness, and there has to be the
rule of law, otherwise the productive processes in such a society will be
disrupted. Arbitrariness and whimsical orders are totally antithetical to
the functioning of an industrial society.

(2) Industrial society is democratic society. There can no doubt

temporarily be dictatorial governments in an industrial society (e.g.
Nazi rule), but these will necessarily be short-lived aberrations, and
society during such a period will not function smoothly but tfully.

We can now bring the Hart-Fuller debate to a close.

Hart is right, Nazi laws were certainly laws, but such laws were wholly
inconsistent with the mode of production in industrial society (which
stage Germany had reached long before Hitler came to power), and
with the social relations engendered by such a mode of production.

Hitler's regime in fact could not have lasted long, as it was based on
features which disrupt industrial society e.g. arbitrariness and terror. In
fact Hitler's regime would have collapsed much earlier than it did had it
not received the support of Chamberlain and Daladier.
Hitler turned the German economy into a war economy1. Massive
rearmament could only lead to a parasitic economy relying on wars of
conquest, slave labour and stolen goods (from conquered countries).

Thus Hitler tried to turn Germany into a nation in some respects

similar to ancient Rome which conquered many nations to obtain
slaves and tribute (much of the grain distributed practically free to the
Roman populace was forcibly taken from Egypt). But slave society had
perished with the Roman Empire 1500 years ago. To turn the clock back
and try to restore it was impossible. Slavery is wholly inconsistent with
modern industrial society (in fact it is inconsistent even with feudal
society).

Hence Hitler's laws were wholly inconsistent with historical

development in Europe. In attacking Jews, Hitler tried to throw
Germany back into the middle ages. Hitler came straight out of a
museum into the modern world. However, the laws he made, though
hideous and monstrous, were certainly laws, as they were in
accordance with the Enabling Act passed by the Reichstag.

The anxiety of natural law thinkers like Fuller is that unless Nazi laws
are treated as non-laws, those who perpetrated atrocities under the
Nazi regime could escape punishment.

However, as pointed out by Hart, retrospective laws could have been

framed after the Second World War retrospectively repealing Nazi laws
and retrospectively declaring the acts of perpetrators of such atrocities
as criminal.

No doubt retrospective criminal statutes are ordinarily frowned upon,

but Hitler's regime was exceptional. In fact in the Nuremberg trials,
certain laws, e.g. crimes against humanity, were applied retrospectively
to punish Hitler's accomplices. Hence there is no absolute prohibition
on the retrospective enactment of criminal laws, and this should
certainly have been done in the case of the Nazis.

Fuller says that a law to be a law must have "inner morality".

But where does morality come from? It arises from the mode of
slavery (except stoics like Seneca, who were really on the fringe of
ancient Roman society, and not in its mainstream, and really belonged
intellectually to the subsequent Christian era). But today everyone
regards slavery as immoral. Thus any law which re ects the social
relationships of a slave society or feudal society will today be regarded
as immoral or unjust.

The Nazi regime was certainly immoral, but it was immoral because it
was totally inconsistent with the mode of production of modern
industrial society and the social relations and values which such a
society engenders. Unless one grasps this point clearly the Hart-Fuller
debate will go on endlessly.

Hart becomes inconsistent when he concedes a "minimum content of

natural law" (see Hart's The Concept of Law) in which he includes (1)
human vulnerability, (2) approximate equality, (3) limited resources,
(4) limited altruism, and (5) limited understanding and strength of
will. Thus Hart practically concedes the existence of a certain degree of
natural law. But it could easily be pointed out that "natural law" is
merely the norms which have to be followed for the smooth running of
a society at a particular stage of its historical development. Slave-
holding societies, e.g., ancient Greece and Rome, regarded slavery as
natural, feudal society regarded serfdom and aristocratic privileges as
natural, while industrial society regards equality as natural. Thus what
is "natural" depends on the mode of production at a particular stage of
historical development.

Once this basic concept is grasped, all the talk of Fuller (and even Hart)
that there must be a "minimum degree" of morality in law in order that
it may qualify as law goes up in smoke.

The "minimum morality" idea is bound to land us in di culties. What

is that minimum? This itself is hazy and uncertain. Di erent persons
may have di erent views about it, and it is bound to be di erent at
di erent stages of historical development. Hart mentions ve features
of minimum morality, and Fuller conceives of eight. Others may
conceive of dozens.
It is submitted, that both Hart and Fuller, insofar as they require a
"minimum morality" in law, are in error. That is not to say that laws
cannot be immoral, but that immorality does not disqualify them from
being law. "Minimum morality", it is submitted, is nothing but the
conformity of the law to the stage of historical development a
particular society has reached, so that society may function smoothly.

Are we then to de ne law as a set of rules made for the smooth running
of society at a particular stage of historical development in conformity
with the mode of production of that stage?

The di culty with this de nition is that it does not take note of the fact
that the law often lags behind social development (as happened in pre-
revolutionary France or pre-revolutionary Russia). There can be
reactionary laws which throw society backwards. Also, as dynamic
positivism advocates, laws can be ahead of social development in order
to guide society forward.

The "revival" of natural law was only a temporary, emotional reaction

to the atrocities of the Nazi regime, but it had no scienti c basis. As
pointed out by the author in his book Law in the Scienti c Era, natural
law is unacceptable in the scienti c era, which relies more and more on
positive law (see the chapter entitled "Natural Law in the Scienti c
Era"). In fact, despite the gallant e ort of Fuller and that of others
(which reminds one of Don Quixote), very few persons rely on natural
law today. The "revival of natural law" collapsed within two decades of
the end of the Second World War.

We can certainly say that certain minimum rules are required in a

society for its smooth functioning at a particular stage of its historical
development. But we need not resort to the mystical concept of
"natural law" for that purpose. There are often deviations from these
minimal rules e.g. arbitrariness and whimsical orders in modern
society, and these disrupt the productive processes and social relations
in society. The remedy for this is amendment of the law and insistence
on legality, and not a resort to natural law.

For the validity of a law we therefore go back to Hart's rule of

addition to the rule of recognition a minimum morality for a law to
qualify as a law.

Hart's rule of recognition, in simple language, says that a law to be

valid must be made in accordance with the Constitution of a country
(whether the Constitution is written or unwritten).

This rule of recognition is somewhat di erent from Kelsen's

grundnorm, which in most countries can be identi ed with the
Constitution itself.

Whether we go by Hart's theory or Kelsen's, in either case we see that

the entire legal system rests on the Constitution. But where does the
Constitution come from?

The Constitution is a product of certain historical and political

developments, and these in turn are heavily conditioned by social and
economic factors. Classical positivism does not go beyond the
Constitution, dynamic positivism goes beyond it, and studies the
historical, social and economic forces behind the Constitution and the
other laws.

In conclusion we may ask whether there is no place for idealism in the

legal system. Classical positivism, of course, nds no place for it, but
dynamic positivism has tremendous idealism, not by relying on natural
law but on the basis of scienti c understanding.

As mentioned in Law in the Scienti c Era, dynamic positivism aims at

guiding society forward on scienti cally planned lines. It studies the
historical trend in society, and aims at peacefully helping social
advance. The legislator in a scienti c society is therefore a person who
is both scienti c as well as idealistic. His idealism is however not
utopian. It does not proceed from some a priori, innate ideas, but from
a scienti c study of society's objective historical patterns and
processes, the aim of such study being to peacefully guide society
forward in history. Only a person who is genuinely sincere,
compassionate, full of love for his fellow human beings, and lled with
a strong desire to abolish su ering can be a dynamic positivist, though
of course he must also have scienti c understanding
†     Judge, Allahabad High Court Return to Text

* Mention has been made of this debate in the author's book Law in the
Scienti c Era, at p. 65 of that book. The history of the "debate" is
mentioned in the Revised Edition of Fuller's book The Morality of Law
(in Chapter V, "A Reply to Critics"). Return to Text

** This theory has been propounded by the writer in his book Law in
the Scienti c Era published by Universal Law Publishing Co. Pvt. Ltd.,
Delhi. Return to Text

1. See William Shirer's Rise and Fall of the Third Reich, under the
heading "The Economy of the Third Reich", at p. 357. Return to
Text

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18 APR 2020    VIEWS:13034 Lawsisto

The Hart-Fuller debate in a Nutshell

There has been a long standing debate between legal positivists and
natural law theorists. For the positivists, Law is simple ‘what is’ and
morality is ‘what ought to be’ and law is fundamentally about a
separation between ‘what is’ and ‘what ought to be’. In other words,
the legal system is a free standing system of ‘what is’ and it does not
need to point beyond itself to some other conceptions or moral or
theological system in order to justify its independence, autonomous
existence and validity.

Natural Law theorists, however, reject this contention. According to

them, Law is based on something beyond the legal system and that is,
speci cally, morality. So this argument between law and morality has
taken form in the legal theoretical argument between the positivist
theory and natural aw theory. One of the places where this contention
becomes urgent for us to solve is in a situation like clearly unjust laws
that were in place during Nazi holocaust in World War II. This
highlights the realities of the problems between these two positions.
Two legal scholars who represent these legal positions, H.L.A Hart, a
positivist and Lon L. Fuller, a natural law theorist engaged in
protracted debates between these two traditions of jurisprudence. It
began when Hart published in the Harvard Law Journal, 1958 – a paper
entitled ‘Positivism and the Separation of Law and Morals’ while Fuller
replied to this in the same journal with an article ‘Positivism and a
Fidelity to Law – A reply to Professor Hart’. Hard consequently wrote
‘The Concept of Law’, a major book outlining legal positivism in its
20th century form to which Fuller replied with another book ‘The
Morality of Law’, reinstating the need to maintain a natural law
position, in spite of the growing popularity of positivism. Subsequently
this debate continued through journal articles, throughout the length
of their lives.
Hart, in his original 1958 paper addresses 3 common critiques usually
levelled by a natural law theorist to legal positivism, which went on to
become the basis of the debate between the two. This included:

1. Austenian theory of law of command recognising the 4 factors to

de ne law to be command, sovereign, punishment and obedience,
making it independent of morality.
2. Problem of Penumbra often criticized by natural law theorists was
solved by stating that ‘what ought to be isn’t necessarily
understood in a moral framework but rather a legal one.
3. Bad law, taking the holocaust as an example

Hart defends ‘minimum content theory of natural law’. In other words,

in order to overcome the problem of morally bad laws, he does allow a
certain in uence of morality within the legal system but he refers to
this as absolute minimum- only so much moral in ltration as is
necessary to maintain the internal consistency of the system referred
to as inclusionary positivism as opposed to exclusionary positivism.

Fuller, in this regard is unclear about whether, for Hart, the distinction
between ‘what is’ and ‘what ought to be’ really is about morality. While
Hart consists ‘what ought to be’, from a natural law perspective - to
conserve a precious moral principle, Fuller says ‘what ought to be’ is
about preserving the delity towards law itself and not about
preserving a precious moral principle. He suggests that legal positivists
are moralizing the nature of morality when in fact, the moral input into
the legal system is already there in the positivists, when we see that the
attempt to internally reconcile, all legal principles is seen as a value
delity to the law. That value is the value outside of the legal system to
which a legal system necessarily references to.

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Chapter 9

The Hart-Fuller Debate

A discussion, which began in the late 1950s between Hart and 9.1 Occasion of
Fuller, highlights some of the fundamental differences between the debate
the legal positivists and advocates of natural law. Essays by
Hart and Fuller, which appeared in the Harvard Law Review
1958, set out their reactions to certain events in Germany
following the end of the Second World War, which appeared
to revive the question of the links between law and morality.
Fuller took the general view that law and morality must not be
separated and that a law which is totally divorced from morality
ceases to be ‘law’. Hart insisted that the law is the law even
though it may not satisfy the demands of morality.

Law under the National-Socialist régime in Germany (1933– 9.2 Background to the
45) was put totally to the service of the dictatorship. The debate (1): German
German Criminal Code was amended in 1935 so as to introduce law during the era
the concept of ‘healthy popular feeling’ as a factor in the of dictatorship
determination of ‘criminality’. Punishment could be inflicted:
‘on any person who commits an act declared by the
law to be punishable, or which, in the light of the
basic purpose of the criminal law and according to
healthy popular feeling, deserves to be punished. If
there is no specific criminal law applying directly to
such an act, it is to be punished according to
whatever law in its basic purpose best applies to it.’

In similar vein, a regulation of 1936 effectively placed the 9.3 Background to the
German secret police above the law: no court was permitted to debate (2): German
interfere with that organisation’s operations. The result was law during the
that law became the willing servant of a tyranny. post-war period

The defeat of Germany in 1945 led to a vigorous effort on the part

of Germanjurists andothers toridthe legal systemofits associations
with the dictatorship. Its structure was dismantled and a deliberate
attempt was made to encourage modes of legal thought based on
the concept of ‘overriding justice’. The ‘conversion’ of the German
jurist, Radbruch (see Chapter 5), which appeared to involve a shift
in his thought from relativism to natural law, had a considerable
effect upon German jurisprudence. He wrote:
‘Preference should be given to the rule of positive
law, supported as it is by due enactment and State
 90 Jurisprudence

power, even when the rule is unjust and contrary to

the general welfare, unless the violation of justice
reaches so intolerable a degree that the rule becomes
“lawless law” and must therefore yield to justice.’

9.4 The case of the Hart drew attention to the prosecution in 1949 of a German
wife-informer woman by a West German court on a charge (under the German
Criminal Code of 1871) of ‘depriving a person illegally of his
freedom’. It was alleged that during the war she had denounced
her husband, in pursuance of a personal grudge, under a statute
of 1934, for having criticised Hitler’s conduct of the war. The
husband was tried under laws of 1934 and 1938 and sentenced
to death, that sentence being commuted to service on the
Russian front. The wife’s defence was the ‘legality’ of her action;
her husband’s behaviour had contravened a law which was
valid at the time of the denunciation. She was found guilty, the
court stating that the statute under which her husband had been
sentenced was ‘contrary to the sound conscience and sense of
justice of all decent human beings’. (It should be noted that
there is a dispute as to the precise facts of the case: see Validity
of Judicial Decisions by Pappe (23 MLR 260). But the dispute does
not alter the essence of the debate.)
For a consideration by the House of Lords of Nazi race laws,
see Oppenheimer v Cattermole (1976), in which Lord Cross noted
that ‘legislation which takes away without compensation from
a section of the citizen body singled out on racial grounds all
their property…and deprives them of their
citizenship…constitutes so grave an infringement of human
rights that the courts of this country ought to refuse to recognise
it as a law at all.’

9.5 Hart opens The German court’s decision was interpreted by Hart (writing
the debate in 1958) as favouring natural law doctrine and as opposing
positivism. He took issue with Radbruch’s new stance and its
effect upon German legal thought.
Hart sympathised with Radbruch’s support for a revision of
German attitudes concerning the relationship between State
power and law.

9.5.1 The law is the law Hart insisted, however, that the law is the law, and that it remains
law even though it might not meet the demands of external moral
criteria. If a law be considered so evil that it ought not to be
obeyed, this is a separate, though worthy and relevant, issue. In
Positivism and The Separation of Law and Morals (1958), he wrote:

‘This is a moral condemnation which everyone can

understand and it makes an immediate and obvious
claim to moral attention. If, on the other hand, we
 The Hart-Fuller Debate 91

formulate our objection as an assertion that these evil

things are not law, here is an assertion which many
people do not believe, and if they are disposed to
consider it at all, it would seem to raise a whole host
of philosophical attitudes before it can be accepted.’
He criticises Radbruch in uncompromising terms:
‘It is not, I think, uncharitable to say that we can see
in [Radbruch’s] argument that he has only half
digested the spiritual message of liberalism which
he is seeking to convey to the legal profession. For
everything that he says is really dependent upon an
enormous overvaluation of the importance of the bare
fact that a rule may be said to be a valid rule of law,
as if this, once declared, was conclusive of the final
moral question: “Ought this rule of law to be obeyed?”
… Law is not morality; do not let it supplant morality.’
When we have the ample resources of plain speech, said Hart,
we must not present the moral criticisms of institutions as
propositions of a ‘disputable philosophy’.

ItmustbestressedthatHartisnotshowinganysympathywhatsoever
with Nazi law of the 1930s. (He refers in the 1958 article to Nazi 9.5.2 A confusion of the
Germany as ‘a Hell created on earth by men for other men.’) He real issue
is pointing out that the advocates of natural law appear to be
confusing the real issue. The 1934 statute was a valid law, and it
is not possible to deny this. Its inherent evil, and how one ought
to react to this, are separate—but very important—issues. It is
confusing to say of a law that, because it rests on a stratum of
evil and results in atrocities, it is not, therefore, a law.

Fuller insists that the attitude of the German post-war court

9.6 Fuller’s response
was absolutely correct, and that Hart is in error. His argument,
set out in Positivism and fidelity to Law—A Reply to Professor Hart
(1958), is couched in emphatic terms.

Law must possess certain characteristics if it is to be classified 9.6.1 The necessity of inner
correctly as ‘law’; the most important characteristic is ‘inner morality of law
morality’ which must command respect. Where there is no such
morality in an enactment there is no law. The ‘tinsel of the legal
form’ with which the Nazis sought to disguise evil required to
be analysed for what it really was.
Hart failed to realise, according to Fuller, that under the Nazi
regime, nothing existed to which the title of ‘law’ might be applied
correctly.

Fuller saw the essence of the lawlessness of the dictatorship 9.6.2 Lawlessness
exemplified in the retroactive decree by which Hitler validated exemplified
 92 Jurisprudence

the execution without trial, in 1934, of a group of dissident party

members. The total indifference to human rights and civilised
conduct, which was characteristic of this incident, destroyed any
claim that there was a legal regime, as such, in Germany at the
time. Hart appears to ignore the inherent inability of the Nazi
regime to provide the bare essentials of what might be recognised
as a legal system.

9.6.3 Positivism basically Fuller widens the attack and argues against the basic theory of
flawed positivism:
‘I do not think it is unfair to the positivistic
philosophy to say that it never gives any coherent
meaning to the moral obligation of fidelity to law…
The fundamental postulate of positivism—that law
must be strictly severed from morality—seems to
deny the possibility of any bridge between the
obligation to obey law and other moral obligations.’
‘As we seek order, we can meaningfully remind
ourselves that order itself will do us no good unless
it is good for something. As we seek to make our
order good, we can remind ourselves that justice
itself is impossible without order, and that we must
not lose order itself in the attempt to make it good.’

Hart’s The Concept of Law (1961) contained a reaffirmation of

9.7 Hart’s reply
his stance. It may be that a legal system ought to show some
conformity with justice or morality; but it does not follow that
a criterion of legal validity must include, expressly or by
implication, any reference to justice or morality.

Law and morality are not interchangeable terms. A rule of law

9.7.1 Law and morality not
may be morally iniquitous, but it is still law; one may not
interchangeable terms impugn its validity solely on the ground of its lack of morality.
The German court was confronted with the question: ‘Ought
we to punish those who did evil things when they were
permitted by evil rules then in force?’ Within this question may
be discerned different problems (of morality and justice) and
they do require consideration independently of each other. Hart
insists that the problems cannot be solved by a once-for-all
refusal to recognise an evil law as ‘valid’ for any purpose. This
is too crude a way with delicate and complex moral issues.’

9.7.2 Choice between evils Inageneralresponse toFuller’scomments onpositivism Hartstates:

‘At least it can be claimed for the simple positivist
doctrine that morally iniquitous rules may still be law,
that this offers no disguise for the choice between evils
which,in extreme circumstances,mayhave tobe made.’
 The Hart-Fuller Debate 93

In the chapter on ‘Law and Morals’ (in The Concept of Law) Hart 9.8 The minimum
concedes that there are ‘certain rules of conduct which any content of
social organisation must contain if it is to be viable’; further, natural law
such rules may be considered as constituting a common
universal element in law within societies. The ‘human
condition’ suggests certain basic characteristics which
necessitate the creation of rules so as to protect persons and
property and to insist upon the keeping of promises.

• Human vulnerability
We are occasionally prone to, and normally vulnerable to,
bodily attack. The use of violence must, therefore, be
restricted.
• Approximate equality This makes obvious ‘the necessity
for a system of mutual forbearance and compromises which
is at the base of both legal and moral obligation’.
• Limited altruism ‘Human altruism is limited in range and
intermittent, and the tendencies to aggression are frequent
enough to be fatal to social life if not controlled.’
• Limited resources We need food, clothes and shelter, but
they are scarce. A minimal form of the institution of property
‘and the distinctive kind of rule which requires respect for
it’ are needed.
• Limited understanding and strength of will Sanctions are
required as a guarantee that persons who would usually obey
rules must not be sacrificed to those who will not. ‘What reason
demands is voluntary co-operation in a coercive system.’

These are ‘simple truisms’ which disclose ‘the core of good sense
9.8.1 Core of good sense in
in the doctrine of natural law’. It is upon their recognition and
natural law
understanding that human beings and the world they inhabit
will retain their ‘salient characteristics’.

In The Morality of Law (1963), Fuller intensified and expanded 9.9 Fuller’s response
his attack on Hart’s position. In the book he gives a detailed
exposition of the ‘morality’ which must characterise an
acceptable legal system. It is important to note that in spite of
Fuller ’s concern for morality, he does not personally accept all
the doctrines associated with classical natural law. He rejects
the Christian approach to natural law, does not accept concepts
of ‘absolute values’ and ‘natural rights’, and places no value
on the religious interpretation of ‘nature as the grand legislator’.
Fuller’s espousal of natural law reflects his basic belief that law
is a collaborative effort to aid in the satisfying of mankind’s
common needs. Each rule of law has a purpose related to the
 94 Jurisprudence

realisation of a value of the legal order. ‘Purpose’ and ‘values’

are closely connected and a purpose may be considered as ‘at
once a fact and a standard for judging facts’. There is no dualism
of ‘is’ and ‘ought’.

9.9.1 The governance A legal system must be instrumental in ‘the enterprise of

of rules subjecting human conduct to the governance of rules’. Such a
system’s ‘external morality’ is a morality of ‘aspirations and
ideals’; an aspiration to legality is one of its aspects. It is the
‘internal morality’—‘a procedural version of natural law’—
which is, for Fuller, of great significance as a test of ‘the
lawfulness of law’.

9.10 The ‘internal Eight qualities which, according to Fuller, must be present in a
morality’ of law legal system if it is to deserve to command allegiance from
citizens, are enumerated as follows:
• Laws must be in existence: they must not ‘exist’ merely as ad
hoc settlements of disputes.
• Laws must be promulgated publicly: they must be made
known to persons who will be bound by them.
• Laws must not be retroactive: they must not affect adversely
persons who relied upon the law as it was.
• Laws must be intelligible and clear.
• Laws must be internally consistent through time, ie, they
must not change so that citizens are unable to orient their
actions by them.
• Laws must be free from contradictions.
• Laws must not require the impossible.
• Laws must be administered so that there is no failure of
congruence between the rules as promulgated and their
administration in practice.

9.10.1 Criticism of Fuller’s Some critics, such as Friedmann, have noted that, in fact, Fuller’s
desiderata desiderata could have been used to ‘approve’ of the Nazi legal
regime, which complied with each of the above requirements,
save, perhaps, that calling for public promulgation.

9.11 Fuller and the Given the principles which constitute the external and internal
‘lawless regime’ morality of a regime, Fuller goes on to declare that any departure
from them is an affront to the dignity of the citizen as a
responsible agent. How ought citizens (including judges and
lawyers) to react to a regime which ignores these principles as
and when it wishes? How ought individuals to behave when
 The Hart-Fuller Debate 95

the legal regime under which they live assists in the systematic
denial of rights to groups of citizens?

Fuller ’s answer is simple, although highly-controversial. The 9.11.1 Lack of internal

regime which is based upon, or which actively assists in the morality negates the
spread of, injustice has forfeited any right to expect allegiance essence of true law
from its citizens. Even though the law be formulated and
promulgated in traditional, formal fashion, its lack of internal
morality deprives it of the nature of ‘true law’:
‘When a system calling itself law is predicated upon
a general disregard by judges of the terms of the law
they purport to enforce, when this system habitually
cures its legal irregularities, even the grossest, by
retroactive statutes…it is not hard for me, at least,
to deny to it the name of law.’

Questions of law and morality must not—indeed, cannot—be 9.11.2 Questions of law and
separated, particularly on the basis of the arguments enunciated morality inseparable
by Hart.
D’Amato (Jurisprudence (1984)) suggests that an answer to
the Hart-Fuller controversy must be found in moral, not legal,
philosophy: ‘Unless they are infused with basic, normative
concepts, present legal theories cannot resolve such issues’.
(Note Dworkin’s argument that ‘jurisprudential issues are at
their core issues of moral principle, not legal fact or strategy’.)

Both Hart and Fuller are united in their abhorrence of the Nazi 9.12 The main issues
regime and in their approval of efforts to cleanse the succeeding in the debate: a
regime from its past taint. They are separated, however, by basic brief recapitulation
disagreement on the relationship of law and morality. For Hart,
the immorality of a law cannot constitute the basis of a denial
that it is, and will continue to be, law until properly repealed.
For Fuller, the immorality of a law, vitiates, or destroys, its right
to be called ‘law’. Specifically, a law founded upon a denial of
the principles of the ‘inner morality of the law’ is not entitled
to any respect: it is mere evil disguised by the language,
ceremonies and formalities associated with rational law. Hart
answers that morality is not law, and must not seek, therefore,
to supplant it. Fuller retorts that law and morality cannot be
separated, and a law that flies in the face of morality is no law.

Critics have suggested that, by its very nature, the Hart-Fuller 9.13 An inconclusive
debate was doomed to inconclusiveness. Terms such as ‘justice’, debate
‘morality’, ‘law’, which were fundamental to the discussion
were not defined. There appeared to be little ‘give and take’ in
the discussions. The questions which prompted the debate
remain. Societies continue to exist and prosper (in a sense)
96 Jurisprudence

although some are totally immoral in Fuller’s sense. Respect

for human dignity is markedly absent from some regimes in
which complex legal institutions exist. In some societies, law
and elementary freedoms do not co-exist.
What, then, is the real nature of the relationship of law and
morality? Is the positivist refusal to mingle law and reality
tenable? Should our definitions of law mirror some moral ideal?
Perhaps most important, in the words of Gross, in his Philosophy
of Law (1980):
‘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?’
Summary of Chapter 9

The Hart-Fuller Debate

A discussion in the 1950s between Hart (b 1907) and Fuller (b Background to

1902) concerning legal events in Germany, following the Second the debate
World War, led to a debate in which some fundamental
differences between the advocates of legal positivism and the
natural law were restated.
Hart was to argue that law is law even though it fails to
satisfy the demands of morality.
Fuller maintained that a law divorced from morality ceases
to be ‘law’.
The post-war legal system in Germany was designed
deliberately so as to rid itself of all vestiges of thought and
procedures associated with the former regime. This was helped
by the influence of the German jurist, Radbruch, who had
abandoned ‘legal relativism’ in favour of a move towards the
doctrines of natural law.
In 1949 the German courts sentenced a woman who had
denounced her husband during the war because of his criticism
of Hitler. The woman pleaded that her action was ‘lawful’ under
the terms of a law then in force. The court ruled in 1949 that
her action was contrary to the sound conscience and sense of
justice of decent human beings.

Although Hart was sympathetic to the attempts of the German Hart opens the debate
legal system to cast aside all remnants of the dictatorship period,
nevertheless, he argued, law remains law even though it does
not meet the requirements of morality.
Whether a bad law (such as that allowing the denunciation
of the husband) ought to be obeyed is a significant, but entirely
separate, question.

Hart, Fuller claimed, was in error. A law must possess certain Fuller’s response
characteristics if it is to be classified correctly as ‘law’. There
was nothing in the legal system of the dictatorship which
remotely resembled true law.
Hart’s error arose from the general positivist position which
demanded a separation of law from questions of morality.

Hart responded by stressing his belief that ‘law’ and ‘morality’ Hart and the
were not interchangeable terms, so that one should not impugn ‘minimum content of
a law solely on the grounds of its lack of morality. natural law’
 Hart suggested that the ‘human condition’ necessitated the
creation of minimum rules designed to protect persons,
property and rights created by promises. The ‘human condition’
revealed vulnerability, approximate equality, limited altruism,
scarce resources and a general, limited understanding and
strength of will. It was the recognition of these matters which
formed the core of good sense in the doctrine of natural law.

Fuller’s response Fuller argued further that a legal system must aim at the
subjection of human conduct to the governance of rules.
Law must have its own ‘internal morality’. It must be more
than the mere ad hoc settling of disputes; it must not be
retroactive; it must be intelligible, free from contradictions, must
not require the impossible and must produce congruence of its
declared aims and the actions of administrators.
The dictatorship in Germany had produced an essentially
‘lawless’ regime which had forfeited any right to expect
allegiance from its citizens.
Hart’s arguments illustrate the results of attempting to
separate law from morality.

An inconclusive In spite of Hart’s nod in the direction of ‘the core of good sense’
debate in the natural law, the parties to the debate remain widely
separated. For Hart it is the confusion of ‘law’ with ‘morality’
which blurs the fundamental issue: law remains law until
repealed or otherwise replaced. Fuller sees this as an inevitable,
and regrettable, result of positivist doctrine; for him man-made
law which lacks an inner morality has no claim to be recognised
as ‘true law’.
It has been suggested that the inconclusive nature of the
debate followed inevitably from a failure to define terms such
as ‘law’, ‘morality’, ‘lawlessness’.