Summary of Hart Fuller Debate

Introduction

The Hart-Fuller debate is perhaps one of the most interesting academic debates of all times that took place in
jurisprudence. It demonstrates the divide that exists between the positivist and the natural philosophy of law
regarding the role of morality in law. While, Hart argued that law and morality are separate from each other and
they can be termed as mutually exclusive. Fuller was of the view that there exists a deep connection between
law and morality and the authority of law is derived from its consistency with morality. The arguments happened
in the way of academic writings. Hart- in his paper Positivism and Separation of Law and Morals hot published in
Harvard Law Review, to which as a reply, Fuller replied as Positivism and Fidelity to Law in the same journal. As
a rejoinder Hartpublished the book, Concept of Law and as a reply, Fuller published the book - A reply to
Prof Hart - Morality of Law

Submissions of HLA Hart

1. As a legal positivist, he states that it is not necessary that laws have to necessarily satisfy certain demands of
morality. While acknowledging the close relationship that exists between law and morality, he does not believe
them to be inter-dependant on each other. He states that the existence of law cannot be judged by its merits or
demerits. A law happens to exist, irrespective of our likes or dislikes. He therefore criticized Austinaian
Command and its problem by putting forward two different kinds of rules, i.e. the primary and secondary rules.
At the same time he also spoke about the compliance and internal obedience to which he referred as minimum
content theory or Simple truism
2. Problem of Penumbra- Hart acknowledges the problem that might occur due to lack of precision in the words
used in language of a statute, which he refers to as the core of the law. Not all cases might exactly fall within the
core of the law. Sometimes standard instances of the words may not be sufficient to give proper effect to the law
for which he said Interpretation of Judges sometimes take into consideration of 'what it ought to be' however
within the parameters of literal interpretation.
3. Law can be morally bad law – Still it needs to be complied with for the fact that it determined as rules.

Submissions of Lon Fuller

1. Inclusionary is similar to fidelity to law - moral input is accepted by Positivists. To have a consistency to law,
morality is to be accepted as a part of law, it is necessary. Positivists not only accuse this aspect against by
denying
2. Positivists accepts the principles of natural justice. Then how come they deny the morality. Audi alterem
partem- Is that a back door entry? Penumbra example- Vehicles cannot be parked- Bicycle- Vehicle? Motorised
vehicle? SO they look on to objective behind the law
3. Morally bad law- Nazi regime law- Grudge Informer case - Husband insulted the leader- Law was anyone who
insult will be subjected to punishment- He was arrested. Trials after overthrowing Nazi- Nuremberg trial She was
punished later that was criticized. Naturlists state the law itself was morally bad law. Following itself was bad.
Human rights won over positivism? Morally bad law though valid need not be obeyed. Obedience to law to be
the individual choice
Professor Fuller defines law as a particular way of achieving social order by guiding human behavior according
to rules Legal validity of law does not mean compliance to justice

8 principles

1. Law need to be expounded in a manner so that it can be generally applied and it should not be adhoc
2. Promulgated and publicized- i.e they must be communicated to the people to whom they are
directed. Ignorance of law cannot be an excuse
3. Law should always be prospective in nature.
4. Laws should always be clearly stated and comprehensive to avoid irrregularity
5. Various aspects of law need to be consistent with each other - each law to be inclusive to other law
6. Law must be possible to be obeyed. Laws should not impose on individuals impossible standards of action.
7. Law by way of stare decisis must be constant and long lasting
8. Law must be applied and administered properly, not merely laying down but to see how far it is
administered. Law need to have rules and sub-rules to be administered.
The Hart-Dworkin Debate: Morality, Interpretation, and Law

 H.L.A. Hart’s legal positivism vs Donald Dworkin’s view as law as integrity has long been believed to be
esoteric and lacking in practical significance.
 Hart believes that law should be looked at internally as a set of rules that are divided into two : primary
and secondary. Dworkin criticizes this by asking - how can legal system function only with both primary
and secondary rules?
 Dworkin made a distinction between rules, principles and policies. Dworkin’s theory, constructivism (also
known as interpretivism), is an account of judicial reasoning. Under this, the text and the “original
meaning” of legal rules are frequently under-determinate, leaving much room for judicial discretion in the
decision of cases.

Hart bases his analogy on the fact that a legal system is a set of definite rules that can be compared to the rules
of squash or tennis. Hart contends that a sport, such as squash, and a legal system both have an established set
of rules that have an accepted "core of meaning" and that are applied to actual situations by the officials. But on
closer scrutiny, it seems apparent that the rules in both of these situations possess an open-textured area where
a highly discretionary system of standards exists. The problem in both squash and the legal system, for the
referee or judge, is the existence of discretionary rules, and the application of these rules to existing fact.

According to Hart, judges decide cases in one of two ways:

1. They apply legal rules to the facts in the case before them.
2. They change/call for repeal/ adjudicate by revising the rules to give an answer to the case before them.
To, Dworkin judges settle cases by:
Applying legal rules to the facts and if seems unjust, they apply “principles” to the facts in the case before them.
Hence, the main goal of Dworkin’s article was:
a. Principles play a significant role in judicial decision making.
b. Hart’s theory that the law is the union of primary and secondary rules cannot accommodate principles.

• Riggs v. Palmer, 115 N.Y. 506 (1889), civil court case, in which the Court of Appeals of New York
interpreted the rule from justice and equity point of view.
• Facts- In Riggs, a probate suit, the plaintiffs, Mrs. Riggs and Mrs. Preston, wanted to invalidate the will of
their father Francis B. Palmer; testated in favour of grandson Elmer E Palmer. 75% of shares were in
favour of Elmer Palmer, but he felt that grandfather will do amendments to the will due to his re-marriage.
He thus poisoned and killed the grandfather. Though Elmer Palmer was arrested, the question before the
court was- would the will be interpreted or read as it is?
• Court applied purposive interpretation and applied the principle- Commodum Ex Injuria Sua Nemo
Habere Debet “No person ought to take advantage from his own wrong”

Summary of the debate

• Applying the principle put forward by Dworkin thinks that the origins of laws are irrelevant, it’s their
substance, specifically their appropriateness, that matters by its application through principles.
• To Hart, it’s the other way around: laws are determined by their origins. A law is a rule that comes from a
source that can make laws, no matter how logical the rule is.
• For Dworkin, a principle has to make sense, no matter what its source is or even if it has no identifiable
source at all. To him, the changing nature of law means that it should be analysed in terms of justice,
legal principles and morals, not just plain facts.
 Positive Law
In the last sessions while dealing with natural theory of law, it has been observed that the Sophistic conception of
the natural law accommodates some main realities of social existence when it counsels compliance with social
norms whenever one's detected violation of them would incur sanctions, or other resistance that would frustrate
one's pursuit of one's interests. Then the influence of divinity and morals came soon. Further, it included winning
the support or acquiescence of other members of the group by such stratagems as professing the conventional
belief in justice and morality, and making or postulating agreements ("social contracts") to abstain from harming
them, to lend them reciprocal assistance, and so forth-agreements silently. In the later half of 18th and onset of
19th century saw the origin of another school of law i.e. Legal positivism The word “positivism” was probably first
used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of
being derived from natural law or morality. Legal positivism does not base law on divine commandments, reason,
or human rights. As a historical matter, positivism evolved in opposition to the natural law theory. Therefore this
school of law negates moral constraints on the content of law. Positivism deals with law as it exists in the present
form. It seeks to analyze the first principle of law as they actually exist in the given legal system. Legal positivism
as school of jurisprudence is named as “analytical school of jurisprudence” and it considered that the most
important aspect of law is its relation to the State. They treat law as a command emanating from the sovereign,
namely, the State. This school is therefore, also called the “imperative school”. The most important legal sources
are legislation, judicial precedents and customary law. This school, dominant in England, lays down the essential
elements that go to make up the whole fabric of law, e.g. State sovereignty and the administration of justice. The
motto of analytical school is ubi civitas ibi lex i.e., where there is State, there needs to be precision in law. The
main proponents of this school are Bentham, Holland, Austin, Salmond etc.

How is positive law different from Natural theory of law?

Natural Theory of law

1. Law to be based on divinity, natural right, duty , law of nature

2. Morality is the criteria on which law needs to be formed
3. Not codified, changes as per facts and circumstances
4. Law “ought to be”
5. Law is found from nature and scriptures or as per one’s natural predisposition. So manmade laws is inferior
6. Follows the priori method followed by assumptions and preconceived notions
7. Subjectivity comes into priority

Positive Law/Legal Positivism

1. Law needs to be analytical and it is to bvbe written

2. Law is a command and once it is laid down, there should not be any change
3. Written therefore codified
4. Law” is”
5. Human made laws are to be considered superior to natural laws
6. This school of jurisprudence beluev in reality and certainty
7. Objectivity comes when law is applied from what is written

Jeremy Bentham: The English jurist and philosopher Jeremy Bentham (1748-1832) is the greatest historical
figure in British legal positivism. Bentham distinguished expositorial jurisprudence (i.e. what the law is) from
censorial jurisprudence (i.e. what law ought to be). The principles and laws together reveal Bentham’s thinking
about the law. Bentham did not think that law everywhere was regarded as the legislative will of the sovereign.
Bentham regarded the term ‘law’ as a socially constructed fictitious entity. He knew that even in his own country
the law was found mainly in the form of common law that was not the creation of a political sovereign. Bentham
regarded this authorless, unpromulgated and uncodified body of rules that made up English law as being
unworthy of the name ‘law’. He dismissed similarly the idea of a higher natural law. He called such law ‘an
obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners,
sometimes to laws; sometimes to what the law is, sometimes to what the law ought to be’

Bentham’s definition of law can be given as the will of the sovereign. He was of the opinion that rules which are
derived exclusively from the commands of a sovereign authority form the law of the land. Therefore, he stated
that rules which are derived from the will of the sovereign would produce more clear as well as more certain laws
than the rules which are generated within a common law system. Therefore, according to Jeremy Bentham, ‘law
is defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state,
concerning the conduct to be observed in a certain case by a certain person or a class of persons, who in the
case in question are subject to his power’. Therefore, Bentham clearly states that law, which is the will of the
sovereign, regulates the conduct of the people to which it applies. Therefore, the law is what is laid down by the
sovereign. The people who are subject to the law have to regulate their conduct in accordance with this will of
the sovereign. Moreover, Bentham says that the law does not have to be in consonance with the principles of
ethics. Therefore, law is whatever is laid down by the sovereign. According to the Bentham, a sovereign is the
highest superior body which does not owe any obedience to any other body. It is the sovereign which claims
habitual obedience from the people living in a politically organized group. Therefore, the sovereign does not owe
any allegiance to any other body or group. It is the will of this sovereign body which is known as law. Bentham,
however, states that the power of the sovereign need not be absolute absolute Bentham is of the view that the
power of the sovereign can be limited as well as divided. Therefore, he is of the opinion that a sovereign can, by
his own will, limit his own powers by entering into agreements with certain external agencies which would put
restriction on the power of the sovereign. Jeremy Bentham’s concept of sovereignty is not absolute in nature and
can be restricted to a certain extent. Another important feature of law according to Bentham is that it should be
backed by sanctions. Therefore, the will of the sovereign must always be backed up by sanctions for it to
become law.

Utilitarianism: Jeremy Bentham expounded principle of utility in his “Limits of Jurisprudence Defined” published
in 1945. His is known as classical utilitarianism. According to him, the good or evil of an action should be
measured by the quantity of pain or pleasure resulting from it. It was the ethical theory developed by him and it
meant that the best action is the one that maximizes utility. ‘Utility’ is defined in various ways, usually in terms of
the well-being of sentient (various kinds of sensation: thoughts, emotions, memories, expectations, associations)
entities.

He said, “Nature has placed mankind under the governance of two sovereign masters, pleasure and pain. They
alone point out to us what we ought to do, and what we should refrain from doing. According to him, the good or
evil of an action should be measured by the quantity of pain or pleasure resulting from it.”

His notion of pleasure included not only carnal pleasure but also the more sublime forms of satisfaction gained
from intellectual and spiritual pursuits, noble deeds and self-sacrifice. He drew from this his famous principle of
utility, which states that an action ought to be approved or disapproved according to its tendency to increase or
diminish the happiness of the party whose interest is in question. Bentham was convinced that a system of law
that derives its rules exclusively from the commands of a sovereign authority, when measured by the yardstick of
public utility, is superior to the common law system. Whereas the former produces clear, authoritative and certain
laws, the latter generates a cumbersome and illogical mass of precedent that serves the interest of the lawyers
but not of the public. Bentham proposed the codification of all laws.

Utilitarianism is defined by three claims.

1. Act consequentialism: actions are morally right or wrong depending on their consequences and nothing else.
An act is right if it maximizes what is good.
2. Value theory: the only thing that is good is happiness.
3. Fairness: The result of majority’s contentment would be the ideal one

Utilitarianism and Hedonistic calculus by J S Mill. To him, there is a necessity for quantitative and qualitative
need to assess the utility and that is possible theorugh
First one? Intensity
Second one? Duration
Third one? Certainty
Fourth one? Remoteness
Fifth one? Fecundity
Sixth one? Purity
Seventh one? Extent

State and Government: Hence to him state and the government are to promote the happiness of the society, by
punishing and rewarding. He was against the existing common law system that was based on precedents.
Hence he wanted the laws to be codified. He reasoned that a system of law that derive its rule exclusively from
the clearly expressed legislative will of a sovereign will produce clearer and more certain laws than the rules
generated by the common law system. His preference for legislation was grounded in utilitarian moral
philosophy, of which he was a principle instigator. Law in this sense requires a state that establishes sovereign
authority. A society that lacks the superstructure of a state and has no sovereign hence has no law in the sense
of Bentham’s definition. By ‘sovereign’ he meant, ‘any person or assemblage of persons to whose will a whole
political community are supposed to be in a disposition to pay obedience and that in preference to any other
person’. Thus, the sovereign may be an elected parliament, an oligarchy, or even an absolute ruler who is
unrestrained by law and who secures the people’s obedience by naked force.

Criticisms- Proponents of utilitarianism have disagreed on a number of points, such as whether actions should
be chosen based on their likely results (act utilitarianism) or whether agents should conform to rules that
maximize utility (rule utilitarianism). There is also disagreement as to whether total (total utilitarianism) or
average (average utilitarianism) utility should be maximized. For instance John Stuart Mill when he modified the
definition of utilitarianism brought in various other aspects such as ‘We do not need happiness and many wise
and noble people have lived without it.’

b.) John Austin: John Austin (1790-1859) is considered as the father of English Jurisprudence. His lectures
were published under the title ‘The Province of Jurisprudence Determined’ dominated the British positivism till
1945. The work of Austin was largely derived from Bentham’s. Austin applied analytical method- ‘law should be
carefully studied and analyzed and the principle underlying therein should be found out’- and confined his. It was
criticized by other jurists by saying that happiness being a subjective element, just causing some happiness, or
more happiness than unhappiness, isn’t enough for an act to be morally right.His theories are known as
Analytical and imperative school of jurisprudence.

Law: According to Austin, law is law only if it is effective and it must be generally obeyed. Perfect obedience is
not necessary without general obedience; the commands of law maker are empty as language which is no
longer spoken. What is sufficient for a legal theorist is that obedience exists. According to Austin laws are of two
kinds – Divine law and Human law .Divine law was given by god to men .Human laws are set by men for men.
Human laws are two kinds: Laws properly so called that is further divided into laws set up political superiors and
are positive law and there is other which is not set up political superiors. The second category Laws improperly
so called and that is further divided into laws of analogy and l,aws of metaphor.

To him the proper law is laws made by political sovereign that have certain attributes. There are four key
elements of this concept of law: (1) a political sovereign, (2) command (3) duty and (4) sanction. According to
him, “law is the command of a sovereign” requiring his subjects to do or forbear from doing certain acts. A
command is not a request but an imperative that creates a duty by the presence of a sanction. A command
involves (i) a wish or desire conceived by a rational being that another rational being shall do of forbear; (ii) an
evil in case of non-compliance; and (iii) intimation of the wish by words or other signs. A command cannot be
separated from duty and sanction. They are aspects of a single event. Where there is a duty there is a
command, and where there is command there is a duty. Laws producing commands may be general, in the
sense that they constitute rules of conduct applying to classes of persons or events. The rules of criminal laws
are general commands. They are impersonal and not directed to particular individuals. Commands are also
occasional and particular

Sovereignty:
i. Sovereignty always resides in the determinate person or in a body of persons.
ii. Sovereignty is absolute, indivisible and unlimited. There can only be one Sovereign and all powers should be
vested in one single hand be it Legislative, Executive or Judicial Powers.
iii. A society without sovereignty cannot be called a state. Sovereign may be an individual or a body or
aggregate of individuals.
iv. The determinate human superior is the only law-maker. His commands are laws and without him the state
can have no laws.
v. The determinate human has no rival of equal status in the state and nor does he obey the order of anyone.
vi. The power of the determinate human superior is sovereignty.
vii. The determinate human superior is subject to none or any power. The bulk of the people obey the
sovereign’s command as a matter of habit.

Criticisms
1. It conflicts with the basic ideas of democracy
2. Austin’s determinate human sovereign is superior to all, ignores the massive influence of the electorate,
public opinion and the political sovereignty
3. Command from superior to an inferior
4. Force is not the only sanction behind laws