1 | Page Dylan Carty.

THE HART-FULLER

DEBATE: SHOULD LAW AND MORALITY

BE MUTUALLY EXCLUSIVE OR INTERTWINED?

Dylan Carty.

2 | Page Dylan Carty.

Hart-Fuller Debate- Is there morality behind law?

After the Second World 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).1

Abstract

My main influence in deciding upon this topic is the fact that the argument for whether or not

morality and law should be mutually exclusive, has not ceased and its origins date back to the

origins of philosophy, from the founding fathers of legal and moral philosophy themselves

(Plato, Aristotle etc,) and yet is still relevant to society today. One key component that I will

assess is the impact of totalitarian rule and the concept of the fidelity of law, (first disclosed

to me through my reading of Hannah Arendt’s Eichmann in Jerusalem,) on the application

and legitimacy of law, so as best to determine whether or not law and morality should be

intertwined. I will also briefly discuss what form of morality, if any, should hold precedence

in judicial rulings, whether it be religious morality, or as Sam Harris advocates- a morality

based on scientific reasoning from an analysis of facts and evidence. However, I will not

address extensively the non-cognitivist debate about whether or not we should refrain from

the use of ‘moral language’ in this thesis.

1. The Origins of Law and the concept of morality.

A few underlying principles and questions form the basis of legal thought and philosophy.

What classifies a law as legitimate? Is there an essential connection between the law and

morality? Can the makeup of a law debar it from being recognised a legitimate law, which

is to be obeyed and as such should laws enacted under a tyrannical regime be classed as

legitimate and obeyed? These questions have raised a debate within the field of

Jurisprudence and has been taken up by two major groups of legal theorists: Natural Law

theorists and Legal Positivists. Therefore we are left to question; Is law moral or is one’s

fate a determinant of predefined laws dictated by state or singular governance, as at first

there seems to be no distinction between law and morality. Some of the most recognised

and decorated Natural Law theorists in history, namely Aristotle, Plato, Lon L. Fuller and

St. Thomas Aquinas have argued that ‘a law is only just and legitimate if it promotes the

common good.’ However, the antithesis of this view is found in the legal school of thought

1 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence

and Philosophy (Oxford: Clarendon Press, 1983)

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named Legal Positivism. Positivists such as H.L.A Hart and Thomas Hobbes, (influenced

by the notion of the chain of connection, but also held the belief that man in his natural state

is selfish and savage and therefore a single absolute ruler is the best form of government)

believe in a differing notion, that a law is only legitimate if it has been ‘enacted through the

proper channels by someone with the absolute power to do so regardless of the content of

that law’ thus, holding no inherent need for morality- a theory similar to that John Austin

advocated for. While each theorist presents his own explanation, each seeks to answer these

crucial questions about law and its application within society.2

However, I believe that there is a potent difference between what is actually classified as

legal (or legally right) in accordance with political entities and what should be legal. What

should in fact be legal corresponds to what is morally right or just. We find therefore, a

possible distinction between conventional and natural rights. This grey area is illustrated

perfectly in Sophocles' tragedy Antigone, in which the protagonist defies royal decree (the

source of ‘legal right’ in this example) and buries her brother, to lay him to rest respectfully

and in accordance to tradition (an act one would assume to be ‘morally right’). Legal ethics,

causes many debates in and around the law, which stem from the ambiguous obligations and

purposes of law and government, ranging from societal challenges at the time, including, pre-

eminently protecting people's fundamental rights and basic liberties.

Sam Harris, a more contemporary philosopher, is a strong advocate for the dissimilarity

between true morality and the supposed ‘myth of morality’ provided by religion, in his 2010

book, The Moral Landscape. He goes on to claim that, with the proper application of

scientific reasoning and an ability to analyse factual evidence, we can access and achieve a

logical and objective moral truth. As a self-pronounced ‘New Atheist’, Sam Harris aims to

deflate the potential threat he believes religion poses to democracy and to humanity on the

whole, through its manipulation of our sociological outlook. He goes on to define, in his eyes,

the true meaning of “good”, being something which advocates the “well-being” of oneself or

others, although any further distinction is relatively ambiguous, with his definition of “bad”

being that which detracts from “well-being”3. Although not suggesting that scientists should

be the new moralists, Harris goes on to reject David Hume’s argument for an “impermeable

barrier between facts and values; that values are never objective; that we can never get an

ought from an is.” However, what Harris fails to contend, is the nature of democracy when he

suggests that we need not pay heed to those ill-equipped to interpret factual evidence and to

derive objective moral truth therefrom, as democracy in the words of Abraham Lincoln,

should be ‘of the people, by the people, [and] for the people’ 4.

Upon reflection therefore, the establishment of moral rules is evidently very expensive from a

social perspective, assuming that this occurs through socialisation and inculcation, as legal

rules can be as specific as we please because they are constructs of society. Ergo, the law can,

in principle, be adapted to promote the socially desirable and to discourage undesirable

conduct.

2 See Appendix for more on legitimacy of law (1.) 3 Sam Harris. “The Moral Landscape” Free Press; First Edition October 5, 2010 4 See Appendix for the definitions of Laws and regulations, with US court rulings on this matter. (2.)

4 | Page Dylan Carty.

2. The Debate.

“Surely if we have learned anything from the history of morals it is that the thing to do with a

moral quandary is not to hide it.” —H.L.A. Hart.

In 1961, H.L.A. Hart, the ‘father of modern legal positivism’, advocated for the separability

of law and morality in The Concept of Law. Hart advocated that there ought to be a clear

distinction between the conception of law as it is and what the law should in fact be. The fact

of the matter remains, that law does not (as of yet) cease to be law due to moral criticism of it

and as such it is the role of a body with power vested in it, to decide whether or not a law

should be repealed. It is thus possible, in Hart’s eyes, to study and apply law in a descriptive

sense (how people do in fact behave), rather than a normative sense (that being how people

should behave). Therefore, his theory presents a parallel between language also, as he feels

that it is possible to utilise moral (de-ontological) language without forcefully initiating moral

claims. Hart identified that the use of terms such as ‘rights’ and ‘duties’, “need have nothing

to do with morals”. Simply put, one may use these forms of ‘moral language’ to further a

specific point or fact, without the inherent implication of labelling human behaviours to be

either ‘good’ or ‘bad’.

But, the legal positivists, even Hart conceded to the apparent overlap of law and morality,

acknowledging the power of the arguments posed by Natural Law theorists, (namely Fuller)

with regards to legal & political systems in effect both in 1940s Germany and to date. He

debated whether or not a legal system, which did not place the notion of “justice” as a

fundamental core, could be sustainable over a long period of time, as citizens living under

such a system would feel no sense of moral obligation to abide by its dictates - thus the only

examples of such systems have sprung from totalitarian regimes generally imposed by some

form of a police state. He begged the question as to whether the nature of law itself stems

from the most basic and fundamental ‘moral precepts’, such as the right to protection and

safety. However, he does not dwell or elaborate on the question, calling it an “innocent

pastime for philosophers”.

Hart reformed jurisprudence and the application of the philosophy of law in the English-

speaking world to what we know today, drawing from the influence of philosophers such as

John Austin5 and Ludwig Wittgenstein6. Hart utilised and adopted a more contemporary

analytical outlook to bear on the central problems surrounding legal theory. His method was a

hybrid of the implicit analysis of 20th-century philosophy with the jurisprudential tradition of

figures such as Jeremy Bentham7, the English legal/political philosopher, (as his theories held

less of a moral perspective.) Firstly, to understand Hart's perspective on legal theory and

philosophy, we must realise his dissatisfaction with John Austin's "Command Theory”: a

concept in jurisprudence that advocates the law is a command backed by sanctions or a threat

of sanctions and is meant to be ubiquitously applied8. Hart likened Austin's theory to ‘the role

of a gunman in a bank and tries to establish the differences between the gunman's orders and

5 See Appendix for John Austin’s legal theories. (3.) 6 See Appendix for an overview of Wittgenstein’s influences. (4.) 7 See Appendix for Bentham’s theories. (5.) 8 Austin characterised that form of lawmaking, along with the occasional legal/judicial recognition of customs

by judges, as the “tacit commands” of the sovereign, the sovereign's affirming the “orders” by its acquiescence

(Austin 1832: Lecture 1, pp. 35–36).http://plato.stanford.edu/entries/austin-john/

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those made by law.’9(As a gun-man forces us to obey and as such we may not be inclined to

obey him. Presumably however, obedience to the law should warrant a different emotional

response.)10

Hart therefore, as a legal positivist, upheld the belief there is not and should not be any

necessary relationship between a legal system and ideas of morality, for a legal system can

function effectively regardless of whether or not it is just or moral. Hitler’s Third Reich

would be a good example of this point, as it discriminated against individuals on racial

grounds, due to the rising anti-semitic beliefs and the pervading notion of the purity and

dominance of the Aryan race. In Hart’s view however, it was a legal system; Nazis on trial

later argued that racial distinctions were relevant and reflected the social sense of morality of

their society at the time, and they were therefore entitled to discriminate. Subsequently, Hart

felt it best to argue the line that whether the rules were unjust or irrational, should not affect

their status as law, demonstrating a blatant disregard for moral issues within a legal system (a

typically positivist line of argument,) for he advocated that laws should not be invalidated on

moral grounds. Instead of this, Hart believed that laws should be underpinned by set

regulations and principles, one of which being clear ‘mechanisms’ for changing them. He

observed that the Nazi law was legitimately enacted and enforced under the proxy Reichstag

at the time and thus, the wife in the ‘grudge informer’ trial should not have been punished for

following these laws (Kant’s theory of categorical imperative.) Hart argues that there should

be a clear and apparent distinction between the question of what law is and whether a law is

moral or just.

Conversely, Fuller (Natural Law theorist) maintains quite the opposite; that law and morality

cannot be classed as mutually exclusive from one another, as such upholding the decision of

post-war courts nullifying Nazi rules. In Fuller’s eyes, the Nazi system and its rules were not

‘legal’ or ‘laws’ at all, for they served only as an instrument of imposing and upholding a

tyrannical regime. Fuller’s notion of morality plays on the transparency and consistency of a

law-making process, with no laws explicitly targeting a sect of society and thus coincide with

‘natural law’ principles (like expressed generality and operating prospectively.) Yet, due to

the fact that Nazi statutes did not conform to these moral principles, Fuller advocates that the

statutes under which the ‘grudge informer’ to have been consulting upon her decision to

report her husband, are likely not to have been valid laws according to natural law. He

continues to argue that law is subject to an internal morality consisting of eight principles11,

and that no system of rules which does not adhere to these principles of legality can allow for

social order. Thus, if any of the principles become inherently transgressed in the passing of a

law, that law void of its powers of legality, no longer holds jurisdiction on that which it

purports.

These supposedly implicit principles, according to Fuller, act as a means of formulating an

internal morality within the law due to two respects: the first being that the law conduces

social order and the second being that laws should be respective of the humans which they

dictate and govern (because rules serve as a means of guiding behaviour to a level which is

9 http://en.wikipedia.org/wiki/The_Concept_of_Law 10 See Appendix for Hart’s response to Austin and Hans Kelson’s influence on Hart. (6.) 11 The rules must be expressed in general terms; the rules must be publicly promulgated; the rules must be

prospective in effect; the rules must be expressed in understandable terms; the rules must be consistent with one

another; the rules must not require conduct beyond the powers of the affected parties; the rules must not be

changed so frequently that the subject cannot rely on them; and the rules must be administered in a manner

consistent with their wording http://www.iep.utm.edu/natlaw/

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socially and morally accepted.) Fuller has argued that although Hart's distinction between

‘law' and ‘morality' is categorically a distinction inherent in the differentiation between

‘order' and ‘good order', even rudimentary inclinations of order contains, at some core level,

‘moral content', in other words, the inner morality of laws. Where this ‘inner morality’ is not

implied therefore, a law cannot be classified as a law, thus Fuller’s condemning of Nazi

statutes, which Hart failed to appreciate. Hart subsequently failed to fathom the moral

implications explicit to the creation of laws and legal systems as a means of distinguishing

what constitutes a law to be classified as a law. Therefore, the 'grudge informer' problem

serves as a means of illustrating the spatial differences of views surrounding both the nature

of law and its relationship with morality.

3. Practical application and study into Totalitarianism and legal

legitimacy.

The ‘Grudge Informer’ case is a debate about judicial obligation in light of a connection

between Kant's categorical imperative and the relationship between the rule of reciprocity

and actions coinciding with general law. I hope to show that further analysis of legal theory

in application furthers Fuller’s claim, and challenge Hart’s argument brought within the

dispute between natural law and positivism the issue of “fidelity to law”.

According to Hart in his paper ‘Positivism and the Separation of Law and Morals’, a German

court in the 1949 Bamberg trials tried a case where a woman was prosecuted for the offence

of illegally depriving her husband of his liberty, which was a crime classified in the German

Code of 1871, which had not been repealed during the Third Reich. In 1944, she had

denounced her husband to the authorities for insulting remarks he had made about Hitler

while on leave from the army. It was “apparently”, Hart says, illegal to make such remarks,

under Nazi statutes though she was under no legal obligation to denounce him. The husband

was found guilty and sentenced to death, but was in fact not executed but sent to the front.

The defence rested on the thesis that she had acted in accordance with the statutes of the time

and as such, had not committed any crime. However, the Court found her guilty of the said

offence of ‘deprivation of liberty’, despite her husband “having violated a statute”, under the

precedent that (quoting from the judgement,) the Nazi imposed statutes were “contrary to the

sound conscience and sense of justice of all decent human beings.” Hart later goes on to state

that the court’s reasoning was “hailed as a triumph of the doctrines of natural law and as

signalling the overthrow of legal positivism”- his further acknowledgement that his position

was wrong.

If we are to adopt the Court’s course of thought, and assert that “certain rules cannot be law

because of their moral iniquity”, according to Hart, we “confuse one of the most powerful,

because it is the simplest, forms of moral criticism” and as such we should say that “laws

may be laws but too evil to be obeyed”. Hart referenced this idea to Gustav Radbruch’s

famous claim of legal positivism’s attribution to the failure of lawyers to respond and

intervene adequately to the Nazis’ overt abuse of legality. Radbruch had concluded in short

post-war articles following the fall of the Third Reich, which we are to follow the suggestion

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that “extreme injustice is no law”12. Accordingly, statutes should lack the status of law when

they contend core principles of what is morally right and as such, “should not be taken into

account in working out the legal position of any given individual in particular

circumstances”.13 For Hart therefore, to avoid arguing “stark nonsense” 14one must

understand that the paradox of legal validity cannot be dictated by moral content, but

preferably, if “laws reached a certain degree of iniquity then there [is] … a plain moral

obligation to resist them and to withhold obedience”. In his thesis on Positivism and the

Separation of Law and Morals, Hart proposes John Austin’s example of the man who is

convicted of a crime punishable by death when the act he had committed was at most menial,

claiming his sentence was “contrary to the law of God”, yet his “inconclusiveness” of

reasoning according to Austin had resulted in his death, for a “law of which [he had]

impugned the validity”15.

Contrary to this, Fuller published a 1958 response to Hart, which provided a theoretical

framework which took into consideration the multi-faceted complexities of the circumstances

both the Nazi-era and the post-war justice seeking courts had faced. In Fuller’s eyes, from the

perspective of Natural Law advocates, the debate was quintessentially one on the different

ideals of “fidelity” to law and the interpretation by the people as to what was truly right. As a

result, one must consider the validity of the notion Fuller referred to as “internal morality of

law” or “inner morality of law”16. He argued that if Germans had focused on internal morality

they would have been able to maintain their fidelity to the ideal of law, (that being an

absolute interpretation of morality,) rather than fidelity to a regime dominated by an

individual. Yet what he fails to realise is the explicit pressure faced by all Germans at the

time and also the levels of devotion and loyalty to the Fuhrer, best exemplified by the trial of

Hans and Sophie Scholl, two student activists who spoke out against Hitler and his regime,

with both being sentenced to death as a result. Regardless, the fact of the matter still stands,

that in the post-war era, German judges could have dealt better with cases like that of the

grudge informer, if they had centred their efforts on the deterioration of legality.

One may find that it is only due to Fuller’s ability to see that the difficulty judges faced, was

the varying choice of ideals left to their own interpretation and application, (in a way that

sustains legality,) that he also notices both that the Nazi statutes could not be said to compel

the husband’s apparent guiltiness and that this rested on the informer’s defence that she acted

in sole accordance with the law, although it was later discovered that she held an ulterior

motive-she wanted him gone, and as such instinctively acting in a way that would prohibit his

freedom. Conversely, one may argue that Hart overlooked key fundamentals in the case, the

first being that he did not see that the case rested on interpretation, which relied on where the

allegiance of the presiding judge was placed, (whether it be in the fidelity of law, or loyalty to

the sovereign.) Secondly, that Hart dismisses issues of interpretation as in accordance to him,

it falls outside of the remit of ‘descriptive legal theory’. In this regard, Fuller rejected Hart’s

12 Gustav Radbruch, “Statutory Lawlessness and Supra Statutory Law”, (2006) 26 Oxford Journal of Legal

Studies 1. 13 See Apendix for Hart’s response to Radbruch. (7.) 14 “stark nonsense”The phrase is John Austin’s, - Austin, The Province of Jurisprudence Determined (Library of

Ideas edn., 1954) pg.185, but Hart adopts this phrase as his own. 15 HLA Hart, “Positivism and the Separation of Law and Morals”, again quoting from Austin. 16 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review

645,659

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statement that the fact that post-war court found some Nazi statutes too evil to be obeyed,

was arrogance on their behalf due to the fact that when a court “refuses to apply something it

admits to be law...moral confusion reaches its height”. Hart does not, as Fuller states,

consider the “drastic emergency” in which Radbruch and the court judges were living; for if

“legal institutions were to be rehabilitated in Germany it would not do to allow the people to

begin taking the law into their own hands, as might have occurred while the courts were

waiting for a statute”17. Germany faced a pressing need “to restore... respect for law and

respect for justice” and the attempt to “restore both at once”18.

What Hart and Radbruch therefore seem to share is an inability to appreciate the moral and

legal complexity of the situation of judges faced with an unjust law19. Dr. Hellmut O Pappe

who was a scholar who fled Nazi Germany in 1939, was another advocate for the complexity

of this legal conundrum, offering his own description of the Federal Supreme Court’s

reasoning20, that for such a citizen tainted by a regime as tyrannical as the Third Reich, the

issue of morality and legality was too complex for a theory that fixates upon two supposedly

inherent factors; what the law explicitly states and one’s conscience - to deal with. Although,

Fuller’s doubts about Pappe’s argument are expressed in The Morality of Law21, on the basis

that it was odd for post-war courts to interpret Nazi statutes in the light of their own standards

and that it was “out of place” for one to fixate on interpretation when each statute in its own

right is full of “vague phrases and unrestricted delegations of power”, with later decisions by

post-war courts as a result of the nullity of judgments rendered by the courts under Hitler, not

on the ground that the statutes applied were void but on the ground that the Nazi judges

misinterpreted the statutes of their own government. After all, as Fuller goes on to state, “the

meaning of a statute depends in part on accepted modes of interpretation. Can it be said that

the post-war German courts gave full effect to Nazi laws when they interpreted them by their

own standards instead of the quite different standards current during the Nazi regime?” In

summary, the Grudge Informer trial supports Fuller’s position rather than Hart’s for the key

principles I will conclude with.

4. Conclusion.

In summary, the actual ‘grudge informer’ trial which took place in the Bamberg Court of

Appeal following the fall of the Nazi regime in Germany, ruled against the precedence of the

trial court. The latter had acquitted the informer of the allegations that she had deprived her

husband of his liberty succeeding the submission of her report and his subsequent detention.

17 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review

pg. 655 18 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review

pg.657 19 See Appendix for Fuller’s response to Radbruch. (8.) 20 That the Court supposed that a law-abiding citizen of the Third Reich would not consign someone to a system

presided over by the courts-martial for making remarks about Hitler because she would know that the accused

would not be tried according to law--by impartial judges who give an appropriate interpretation of the law

Pappe, “On the Validity of Judicial Decisions in the Nazi Era”. 23 Modern Law Review pg.260-74 (1960). 21 Pappe’s argument in The Morality of Law New Haven: Yale University Press, 1969, revised edition- Eight

ways to fail to make law p.7

9 | Page Dylan Carty.

This was established on the basis that he had violated a valid law and through a “properly

carried out judicial process”. This decision, the Court of Appeal held, erred in that it inferred

the legality of the informer’s report under the anti-sedition laws of 1934 and 1938. The

argument surrounding this ruling henceforth stemmed from the court’s failure to appreciate

that the accused had used the state machinery as a means of attempting to commit murder.

Yet, on the basis of jurisprudence, the debate still remains at large for although the initial

court ruling was in favour of Hart, (despite the fact that the husband had been “sentenced by a

court for having violated a statute”,) the revised judgement under the Court of Appeal found

her guilty of the deprivation of the liberty of her husband, on the basis that (quoting from the

judgement) the statutes were “contrary to the sound conscience and sense of justice of all

decent human beings.” Hart identifies that this form of reasoning was followed in many

cases, being “hailed” as successes of the doctrines of natural law, “signalling the overthrow

of legal positivism”22. Regardless, Fuller’s link between ‘form’ and ‘morality’ in relation to

the debate with Hart, raises the query as to whether or not the existence of procedural forms

would limit the extent of power inherent in political systems from being abused. Fuller

furthered the argument that principles such as reciprocity and the rule of law (by which no

one is above the law,) if established in political and legislative procedures, could act as

‘check’ and constraint on power. ‘Informal’ or ‘real’ power therefore is ‘hedged...by a

network of reciprocities that trace the limits of [its] control’, which is paramount to the

establishment of the legitimacy of the power - a factor which dictatorships cannot boast

conformity to.

Fuller therefore, tried to express his belief that the Nazi German legal system was not in fact

a ‘true’ legal system as it failed to meet certain ‘morally internal’ principles that would

establish legitimacy, based on natural law. Where law is immoral it loses its legitimacy and

provides strong reasons for not enforcing it. Fuller, unlike natural law positivists before him

(like St. Thomas Aquinas,) did not advocate the application of natural law in its religious

sense, but treats its notions of morality as ‘on a par with international law’23. Consequently,

enforcement of laws established under the Nazi regime can be seen as a breach of natural law

according to the reasoning of Fuller, for they were not expressed in generality (not directed to

individuals), nor transparent and consistent and operating prospectively. Fuller therefore,

advocated that strong moral motives to disobey the law (such as Antigone,) can outweigh

fidelity to the law. As such, Fuller suggests that the laws under which the ‘grudge informer’

trial was operating are likely not to have been valid laws in this moral sense. Henceforth, it

was not a system of law, but rather a system of terror. Conversely, Hart took a more

contemporary view, considering the existent legal system in place at the time as such,

regardless of whether or not the laws in place were ‘just’ or ‘irrational,’ should not have had a

resultant affect their legitimacy. Hart argued from a positivist position that moral issues

should not be considered within a legal system. A law according to Hart, should not be

declared void of legal influence purely on the basis of a morality. Yet, Hart acknowledged the

need for core principles outlined to underpin laws, namely that rules were to be clearly

recognisable with overt consequences and ‘discernable mechanisms’ for changing rules, such

as an Act of Parliament, or a Constitutional amendment process. Hart had claimed that the

Nazi statute at play in the ‘grudge informer’ trial was legitimately enacted and enforced

22 HLA Hart, ‘Positivism and the Separation of Law and morals’(1958) 71 Harvard Law Review 593 pg 619 23 http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exercise.pdf

10 | Page Dylan Carty.

regardless of the outstanding German Penal Criminal Code of 1871. Therefore, the defendant

should not be punished under her lawful willingness to follow the law - Kant’s categorical

imperative, a notion I oppose due to the illegitimacy of the statutes which dictated her

actions.

11 | Page Dylan Carty.

Bibliography:

1. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays

in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)

2. Hobbes, Thomas. "Levinthian." The Great Legal Philosophers . Ed. Clarance

Morris.Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.

3. Aquinas, Thomas, St.. "Summa Theologica." The Great Legal Philosophers . Ed. Clarance

Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.

4. Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers . Ed. Clarance

Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.

5. On the Republic/ On the Laws by Marcus Tullius. Translated by Clinton W. Keye.1928 by

Harvard University Press.

6. Sam Harris. “The Moral Landscape” Free Press; First Edition October 5, 2010

7. http://www.oyez.org/ssm/documents/prop8_trial_opinion.pdf

8. https://supreme.justia.com/cases/federal/us/539/558/case.html

9. http://en.wikipedia.org/wiki/John_Austin_%28legal_philosopher%29

10. http://en.wikipedia.org/wiki/Ludwig_Wittgenstein

11. http://en.wikipedia.org/wiki/Jeremy_Bentham

12. (Austin 1832: Lecture 1, pp. 35–36).http://plato.stanford.edu/entries/austin-john/

13. http://en.wikipedia.org/wiki/The_Concept_of_Law

14. http://en.wikipedia.org/wiki/Hans_Kelsen#The_Pure_Theory_of_Law

15. Hart, H.L.A. “Concept of Law”. Oxford, London: Oxford University Press, 1961.

16. http://www.iep.utm.edu/natlaw/

17. Gustav Radbruch, “Statutory Lawlessness and Supra Statutory Law”, (2006) 26 Oxford

Journal of Legal Studies 1.

18. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays

in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) pg.74

19. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays

in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)pgs.74-75

20. “stark nonsense”The phrase is John Austin’s, - Austin, The Province of Jurisprudence

Determined (Library of Ideas edn., 1954) pg.185, but Hart adopts this phrase as his own.

21. HLA Hart, “Positivism and the Separation of Law and Morals”, again quoting from Austin.

22. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71

Harvard Law Review 645,659

12 | Page Dylan Carty.

23. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71

Harvard Law Review pg. 655

24. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71

Harvard Law Review pg.657

25. Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71

Harvard Law Review pg.660

26. That the Court supposed that a law-abiding citizen of the Third Reich would not consign

someone to a system presided over by the courts-martial for making remarks about Hitler

because she would know that the accused would not be tried according to law--by impartial

judges who give an appropriate interpretation of the law Pappe, “On the Validity of Judicial

Decisions in the Nazi Era”. 23 Modern Law Review pg.260-74 (1960).

27. Pappe’s argument in The Morality of Law New Haven: Yale University Press, 1969, revised

edition- Eight ways to fail to make law p.7

28. HLA Hart, ‘Positivism and the Separation of Law and morals’(1958) 71 Harvard Law

Review 593 pg 619

29. http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exercise.pdf

Works also used as a basis for understanding, subsequently influencing my approach:

1. Dr. Herlinde Pauer-Studer, “Separation of law and morals? A debate about legal

validity and its implications for moral criticism”, Universität Wien -Institut für

Philosophie. 2010

2. Arendt, Hannah- “Eichmann in Jerusalem” The Viking Press. 1964.

3. Martti Koskenniemi “Between impunity and show trials” Martinus Nijhoff Publishers.

Published in the Max Planck Yearbook of United Nations Law, Yearbook, Volume 6,

2002.

4. Steven Shavell, Harvard Law School - “Law versus Morality as Regulators of

Conduct” 2002 American Law and Economics Association.

5. David Dyzenhaus, Professor of Law and Philosophy, University of Toronto.

Philosophy seminar at McMaster University

6. HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart,

Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49,

7. Lon L.Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71

Harvard Law Review 630.

8. Pappe’s argument in The Morality of Law (New Haven: Yale University Press, 1969,

revised edition)

9. http://www.law.nyu.edu/sites/default/files/upload_documents/The_Grudge_Informer_

Case_Revisited.pdf

10. http://people.wku.edu/jan.garrett/320/320lawmo.htm

11. http://sixthformlaw.info/01_modules/other_material/law_and_morality/07_hart_fuller

.htm

12. http://www.oup.com.au/__data/assets/pdf_file/0008/169829/Grudge_Informer_exerci

se.pdf

13 | Page Dylan Carty.

13. http://cstl-

cla.semo.edu/hill/ui305/jurisprudence%20notes/hart%20fuller%20debate.htm

14. http://www.bbc.co.uk/history/worldwars/wwtwo/nuremberg_article_01.shtml

14 | Page Dylan Carty.

Appendix:

1) The most rudimentary ideal is that for a law to be legitimate, it must come

from a legitimate source. Legal Positivists have taken up the argument that for the

source of law to be legitimate, it must come from a source of power, whether that be

a monarch or government. For John Austin, the source of all law must be the ‘only

person who the subjects are in the habit of obeying’, whilst also possessing the

capability to uphold sanctions and laws with credible force if one abuses the laws set

in place. Conversely, it is posited by Natural Law theorists that the source of law

originates from a celestial or divine root or can be discovered and formulated in

accordance to what one may consider to be ‘just’ or moral with the sole intention of

promoting the common good. St. Thomas Aquinas was a firm believer in this school

of thought embodying the prospect that the source of divine law is God instilled in

us through our consciences. His beliefs are centred on the fact that human laws are

derivatives of these divine principles based on practical reason and inherent

morality. This belief in Natural Law predates Christian philosophy held in the mid-

13th century to the beginnings of the era of Hellenistic philosophy following

Aristotle. Both Plato and Aristotle agreed that concepts of law and justice were

derived from nature and reason, which governed actions in search of the ‘higher

good’. Now unlike Austin, a much more contemporary British jurist and

philosopher, Aquinas held the distinction that the person or persons entrusted with

the ability to make laws, must hold the best interests of his contemporaries at heart.

Similarly, Hobbes possesses this mutual belief, in that he felt that the duty of those

responsible for the creation of state law should utilise these powers they possess in a

way which cares for and protects the society and social structure that they govern.

Hobbes goes on to find a middle path on the topic of the source of law, with the

contention ‘that the individual subordinates himself to the sovereign who can create

and enforce laws according to a social contract with the people.’ Hobbes’ notion

stems from the context at the time in which he was alive - The English Civil War, a

time in which the sovereign did not have to answer to anyone. 24

It can generally be assumed that all laws have been fashioned to protect and enforce

the welfare of man. As such, Aquinas begs the notion that neglecting God’s law /

the theory of ‘universal happiness’ in formulating law will result in it being unjust.

Subsequently, he advances that a law which is unjust should not be classified as

being legitimate and so does not warrant being obeyed25. Now we are confronted

with two conflicting sides as to what classifies a law to be legitimate, which forms

the basis on whether or not an unjust law which does not hold moral implications,

should be considered legitimate and followed. Law’s legitimacy according to Austin

is independent of the morality of its content, so must be obeyed, as it draws its

validity from the power invested in the sovereign of a state (or in more applicable to

contemporary societies, the executive branch of government.) Natural Law

Theorists fail to acknowledge this notion because it does not recognise morality or

protection of the people. John Austin upholds the strict division between law and

24 Hobbes, Thomas. "Levinthian." The Great Legal Philosophers . Ed. Clarance Morris.Philadelphia,

Pennsylvania: University of Pennsylvania Press, 1971. See also appendix for more theory surrounding the

origins of legal schools of thought. 25 Aquinas, Thomas, St. "Summa Theologica." The Great Legal Philosophers . Ed. Clarance Morris.

Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971.

15 | Page Dylan Carty.

morality, concluding that the content of the law is legitimised through the authority

which enacted it regardless of its possible moral implications.26

Passages in ancient Greek and Roman scripts suggest the distinction of a ‘good

person’ to be one who will do what is lawful and it is the lawgivers who

distinguished right from wrong. Yet, this fails to recognise the extent of ‘lawful’ and

as to whether an act can be morally wrong, such as the genocide of the Jewish by the

Nazi regime, which was legal under German domestic policy. As Cicero succinctly

put it: Salus populi suprema lex. The supreme law is the wellbeing of the people (of

Rome)27. This epitomises the sense of pragmatism which pervaded Roman culture

with respect to morality and law. Given the notion that morality is a social construct

originating from our inherent voice of reason, it follows that it is directly influenced

by the societal changes which they subject.

2) Laws and regulations in broad terms, are implemented to regulate one’s

behaviour and activities that are publicly observed, making enforcement possible.

Yet, perhaps as a result of this, one may argue that it is simply impossible to hold

moral values at the core of legality. For one to say that an action is not lawful due to

its moral implications, we now enter the remit of relativism and the impossibility of

the universality of thought in accordance with a generally assumed set of values. Acts

of this nature are often acts that cannot be classified as illegal but simply unethical (to

Westernised standards) and can include acts that are private and difficult to regulate

without invading key principles such as the right to privacy and freedom of thought

and expression - an impossible conundrum for an authority. Governmental respect for

our individual freedoms and the autonomy of non - governmental spheres of authority

(namely religion) is, then, a necessity of political morality. Following the notion and

apprehension of tyranny that has founded effectively the constitution of countries, the

most obvious of which being the USA, for law to be legitimate with regards to

Natural Law, they must respect the freedoms and rights of the people and the

usurpation of these is unjust in principle, often seriously so. The record of big

government in the twentieth century, and the widespread nature of totalitarianism,

(from Hitler to Stalin,) shows that it frequently harms those it seeks to help more often

than not.

As a means of protecting civil liberties the judiciary has become an increasingly

important system of keeping a check on the executive and legislature, through their

powers of judicial review and precedent, especially in the United Kingdom and

America. However, there has been a movement away from any incorporation of

concepts of morality in judicial decision-making over the last century and as a valid

basis for legislation. This has become evident in a line of recent cases, most famously

in America. Perry v. Schwarzenegger28 and Lawrence v. Texas29, explicitly rejected

the use of subjective moral standings as a legitimate basis for amending legislation or

26 Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers . Ed. Clarance Morris.

Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 27 On the Republic/ On the Laws by Marcus Tullius. Translated by Clinton W. Keye.1928 by Harvard

University Press. 28 http://www.oyez.org/ssm/documents/prop8_trial_opinion.pdf 29 https://supreme.justia.com/cases/federal/us/539/558/case.html

16 | Page Dylan Carty.

the denial of constitutional rights. Although some may argue that there is a clear

divide between US and European court proceedings, due to the politically aligned

nature of the US judiciary, cases have begun to redefine many common notions

previously supported by religious faith and assumed universal beliefs.

In Perry v. Schwarzenegger, the core principle of the case surrounded the introduction

of an amendment to California’s constitution to prohibit same-sex marriage. The

proponents for the state amendment argued along the basis that heterosexual marriage

was "an essential institution of society", whereas the opposition argued that "the

freedom to marry is fundamental to our society", that the California Constitution

"should guarantee the same freedom and rights to everyone" and that the proposition

"mandates one set of rules for gay and lesbian couples and another set for everyone

else." They also argued that "equality under the law is a fundamental constitutional

guarantee." Now this case represented a clear distinction between a religious moral

outlook and a more contemporary liberal belief in equality. As such, the ruling in the

Perry case stated a ground-breaking social and political upheaval of religious morality

within the interpretation of law, that “moral disapproval alone is an improper basis on

which to deny rights, ...a private moral view… is not a proper basis for legislation,”

but also that “…those individuals’ moral views are an insufficient basis upon which to

enact a legislative classification.” The Supreme Court in Lawrence (a trial which

advocated that same-sex sexual activity should be legal in every U.S. state and territory,)

decided that conservative religious moral majority may not “use the power of the State to

enforce these views on the whole society through operation of the criminal law”. This clear

denunciation of ‘popular moral belief’ in terms of judicial decisions was also fortified

in Planned Parenthood of Southeastern Pa. v. Casey, the Supreme Court made plain

the obligation of the Court, “Our obligation is to define the liberty of all, not to

mandate our own moral code.” This condemnation of legal statutes has represented a

potential shift in jurisprudence as we know it and the perhaps waning influence that

traditional moral truths hold on the law, perhaps proving that it is no longer a

necessity.

3) John Austin is best known for his work developing the theory of legal

positivism. Among other things he attempted in this to clearly separate moral rules

from "positive law." Austin was also greatly influenced in his utilitarian approach to

law by Jeremy Bentham. The three basic points of Austin's theory of law are that: the

law is command issued by the uncommanded commander—the sovereign; such

commands are backed by threats of sanctions; and a sovereign is one who is

habitually obeyed

http://en.wikipedia.org/wiki/John_Austin_%28legal_philosopher%29

4) The early Wittgenstein was concerned with the logical relationship between

propositions and the world and believed that by providing an account of the logic

underlying this relationship, he had solved all philosophical problems. The later

Wittgenstein rejected many of the assumptions of the ‘Tractatus’, arguing that the

meaning of words is best understood as their use within a given language-

game.http://en.wikipedia.org/wiki/Ludwig_Wittgenstein

5) Bentham's ambition in life was to create a "Pannomion", a complete utilitarian code

of law. He not only proposed many legal and social reforms, but also expounded an

underlying moral principle on which they should be based. This philosophy of utilitarianism

17 | Page Dylan Carty.

took for its "fundamental axiom", it is the greatest happiness of the greatest number that is

the measure of right and wrong" http://en.wikipedia.org/wiki/Jeremy_Bentham

6) Hart identifies content, origin and range to be important differences. In

relation to content, Hart argues that not all laws are imperative or coercive, with some

being ‘facilitative’ laws, by which we can create contracts and other such like legal

relations. Austin however, that for a legal system to function, there must be a

sovereign who dictates and creates the law (whether it be a dictator or monarchy, is

not defined) whilst remaining himself above the rule of law. In such a sense, in the

bank gunman example, we are presented with such a case, where he who is the source

of command, is not subject to another's commands. Hart disagrees with such a claim,

noting that laws may have several sources and legislators who themselves are subject

to the laws they create, and thus this is an inaccurate description of the law. Yet, one

may consider the example Stalinist Russia or Chile under Pinochet to name a few

examples of this very scenario in practice, showing Austin’s theory does not lack

possible merits.

Hart also became influenced by Austrian legal philosopher Hans Kelsen’s defence

of continental legal positivism through his theory of positive law, although Hart

rejected two features of Kelsen's theory30: the first being the notion that law

requires sanctions for it to be implicit; and the second was the neo-Kantian

principle that political-turned-social convention could not be explained wholly in

terms of facts. In rejecting Kelsen's reliance on "purity" within his "pure theory of

law," Hart broke away from Kelsen bringing English-language jurisprudence into

the philosophical mainstream. Hart and Kelsen, as it just so happened, grew apart

possibly following a clash of their differing opinions on the next steps in positivist

thinking and philosophy. Hart introduced the problem of "the core and the

penumbra" in his study; The Concept of Law31 as a means of illustrating his belief

that laws must be dictated by the meaning of the words, not any natural or moral

belief. An example therefore of a "core" case, would be one that a statute is

intended to cover. For example, the more contemporary example of this being a

Road Traffic Act which bans vehicles from parking in certain areas, is intended to

cover cars. A "penumbra" case on the other hand, would be one not considered by

the creators of the law, like how an airplane could be applied to the above

example. A judge interpreting such a law according to legal positivism, would

look to a definition of the words of the statute as means of passing judgement.

7) Hart later criticised Radbruch for his “extraordinary naivety”32 with regards to

his beliefs, suggesting that in a social structure like that of the Germans under Hitler’s

totalitarian rule, there was disregard for “common morality” and that there was

general agreement “that [the] law might be law though it failed to conform with the

minimum requirements of morality.” Hart recognises the positivist ideal of “law is

30 This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which start from a

Basic Norm where all other norms are related to each other by either being inferior norms, when the one is

compared to the other, or superior norms. The interaction of these norms is then further subject to representation

as a static theory of law or as a dynamic theory of law.

http://en.wikipedia.org/wiki/Hans_Kelsen#The_Pure_Theory_of_Law 31 Hart, H.L.A. “Concept of Law”. Oxford, London: Oxford University Press, 1961. 32 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence

and Philosophy (Oxford: Clarendon Press, 1983) pg.74

18 | Page Dylan Carty.

law” may have, at the time in Germany, gained a more “sinister” influence and

perspective (due to the nature of Germany’s 1939-45 police state,) in contrast to here

in Great Britain, where it “went along with the most enlightened liberal attitudes”. But

even if that is the case, Hart still argues that Radbruch, a German legal scholar and

politician during the Third Reich, had only “half-digested the spiritual message of

liberalism which he is seeking to convey to the legal profession.” In truth, one may

argue, as Hart did, that it can be seen that Radbruch’s notions and theories rest on an

overvaluation of the fact that “a rule may be said to be a valid rule of law, as if this,

once declared, was conclusive of the final question: ‘Ought this rule of law to be

obeyed?”33. Instead, one must inherit the belief that regardless of the fact that a given

rule is the law, that should not determine whether or not it should be obeyed, in part

disagreeing with other legal Positivists - in part acknowledging the claim of Natural

Law.

8) For Fuller, Radbruch’s assertion of the principle of a ‘higher law’ (a morality

that transcends positive law but which functions as a test for the validity of law) was

“a belated fruit of German legal positivism”, which evidently plays into his reasoning

of the grudge informer trial and the belief that the only way to “escape one law is to

set another off against it, and this perforce must be a ‘higher law’34. Fuller concludes

that there is a present contrast in Hart’s position in the matter - although he submits

scathing critique of Radbruch, Fuller argues that there is a deep similarity between

their positions; Hart and Radbruch refer to the idea of a higher moral law in order to

deal with the problems created by past legal injustice. For them, the notion of higher

law is a law which possesses the power to invalidate another law, but where this

validation comes from is still left ambiguous - is this just another form of morality

Hart has arrogantly refused to accept? Thus, they both, in fact, prefer the legal

solution to come in the form of retroactive ruling. The only apparent difference being

that Radbruch, in Statutory Lawlessness and Supra Statutory Law, willingly submits

that judges should hold the power in a post-monarchical system of democracy to do

what the legislature should not be entitled to do - interpret and scrutinise law, in

essence, forcing the acceptance of what they do to be acts upholding legality. Hence,

he argues that the future prohibition on extreme injustice as a result of post-war

judicial rulings is, in essence, a prime example of higher legal law.

33 HLA Hart, “Positivism and the Separation of Law and Morals”, reproduced in Hart, Essays in Jurisprudence

and Philosophy (Oxford: Clarendon Press, 1983)pgs.74-75 34 Lon L Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart”, (1958) 71 Harvard Law Review

pg.660