THE HART V FULLER DEBATE(1958) The Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Appearing in 1958 in the Harvard Law Review, Hart took the positivist view in arguing that morality and law were separate. Fullers reply argued for morality as the source of laws binding power. Hart’s position On the one hand Hart held that there is no necessary relationship between a legal system and the ideas of justice or morality. A legal system can function effectively though it is neither just nor moral. The Nazi regime would be a good example of this point. It discriminated against individuals on racial grounds. In Hart’s view it was a legal system. The Nazis argued that racial distinctions were relevant and reflected the morality of their society. It was, therefore entitled to discriminate and still claim it was treating like cases alike. Hart argues that the question of what is law must be separated from the question of whether it is moral or just.Where as Fuller (Natural Law theorist) maintains that law and morality cannot be so neatly distinguished and thatthe post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system legal and to call itsrules laws was a false description of what they were. They were instruments of an arbitrary and tyrannicalregime. Legal theorists can thus be divided into two schools of thought, those who adhere to positivism and others who subscribe to the natural law theory. The positivists like Hart and Austin, merely attempt to define what law is, not what it should be, or its content. The natural law theorists, on the other hand, believe that rules or principles can only legitimately be called law if they conform to an acceptable code of moral behaviour. Limits of the command theory As Hart points out, the command theory, while authoritative, makes the erroneous assumption that all legal rules make commands or impose sanctions. There are many
laws, which, for example, merely confer rights and are not backed by sanctions.Hart proceeds to link types of rules with the legal system. He identifies two mainsets of rules, primary rules and secondary rules. Primary rules are those which anysociety needs in order to survive. They forbid the conduct most destructive to thesociety, such as murder. Even simple societies contain these rules. Secondary rules arethose which confer power rather than impose duties. They are divided into threetypes: rules of adjudication, rules of change and rules of recognition.The first, rules of adjudication, are designed to allow the society to settle disputessuch as legal offences and their sentences. Rules of change are those which promoteother new rules. A developing society needs to respond to new situations and theserules accommodate this imperative. Rules of recognition are those which demonstratethe acceptance of the law by the society. They thus spell out which rules in the societyhave legal force. For example, Hart says, the UK has a single rule of recognition: whatthe Queen enacts is law. In like vein, we can say that our rule of recognition in theCommonwealth Caribbean is the Constitution.Dworkin rejects Hart’s theory on rules on the basis that law contains not justrules, but a set of principles upon which these rules are based. These principles are theguidelines which inform the law but do not propose a solution. One such principle isthat no one should benefit from their own wrongThe naturalists and the morality of lawWe need also to consider carefully the question of the appropriate functions of law ina society according to the naturalist school of thought. Should law, as the naturalistswould have us believe, seek to reflect morality? This question is particularly pertinentThe moralists believe that law should not only be moral in itself but shouldcontain rules which prohibit ‘immoral behaviour’. The law cannot divorce itself fromthese moral values.The belief that law should reflect morality has spurned some interesting cases. InShaw v DPP, for example, the House of Lords upheld a conviction of the offence of aconspiracy to corrupt the public’s morals when the defendant published a pornographicbook. The Court found that a fundamental purpose of the law was to ‘conservenot only the safety and order but also the moral welfare of the State’.66 Similarly,in R v Gibson,67 a conviction was obtained for the common law offence of outragingthe public decency when the defendant artist exhibited earrings made fromfreeze-dried foetuses.
These decisions have engendered much controversy and have been criticised bythose who believe that morality is a private concern and not the business of the law.John Stuart Mill, for example, argues that the law should not impose its concept ofmorality on individuals. Individuals should be free to choose their own conduct, aslong as they do not harm others.68Natural law, morality and our pluralistic societiesCertainly, the morality theories present difficulty. In any society there will be conflictingideas of what is moral. This is particularly so in pluralistic societies such as ours.Muslims, for example, allow men to have more than one wife, whereas Westerncivilisation considers this immoral.69 We have seen already the conflict between theUK and its territories over the issue of homosexuality, which those West Indian communitiesfound to be immoral.In addition, a society’s morals change over time. The much talked about issue of themorality of the death penalty is one such example, although one cannot argue thatthere is consensus on the issue.Less controversial functions of law include public order, social control, socialcohesion, to promote change in the society, to define rights and duties and to balanceconflicting interests in the particular society.Even if we can identify what law is and what it should be, this still leaves the question,‘why do we obey law?’ Is it, as Austin thought, because of the sanctions behindit, or is it, as Hart believed, because we accept it? Would we refrain from committingmurder if there were no sanctions? Perhaps law is obeyed because it is the mostconvenient and fair way of organising any society? We may also obey law because webelieve that it is right or morally correct.This last suggestion leads us to an interesting point. Is there an obligation to obeyrules emanating from the State which are immoral? There are several examples ofthese: the Nazi laws of Germany; the apartheid laws of South Africa; and of course,the slave laws which we discussed earlier. These were all legitimised by the relevantParliaments. But did those laws have moral authority? The people who obeyed suchlaws may have believed that they were simply obeying the lawIn Forsythe v DPP and the AG of Jamaica,73 for example, the appellant, a Rastafarian,author and Professor at Harvard University, USA, unsuccessfully sought legal validationfor the utilisation of ganja as a sacrament of the Rastafarian faith. He arguedagainst the validity of legislation which outlawed ganja in this way:That by defining all marijuana possession as ‘criminal’ . . . must cause ordinary peopleto loose [sic] respect for the law thereby. That a law is valuable not because it is ‘the law’but because there is ‘right’ in it and laws should be like clothes; the Laws should be
tailored to fit the people they are meant to serve.74This was recognition not only that law should suit its society, but that it must be basedon the moral values of that society which, judging from the lack of success in this case,is demonstrably subjective.The intrinsic morality or immorality of law also leads us once again, to the discussionof reparations for the slave trade. It is precisely the immoral nature of the laws.