Should There Be Morality in the Law?

Introduction:

This coursework will be focusing on the Hart and Fuller debate and their views on morality in law. Taking into account the questions raised on morality in the interview with Lord Justice Alan Ward regarding the ‘Re A’ case.

Jurisprudential theory:

H.L.A Hart:

Within Hart’s theory, he maintains that Law and Morality should remain separate. In one of his most famous works; ‘The Concept of Law[1]’ he analysis’ the relation between that is between law, coercion and morality. In order to try to and clarify whether laws are coercive orders or moral commands. Hart states in this book that there is no logical connection between law and morality, if we to conceive all laws as coercion orders or moral commands this would be oversimplifying and it would also impose misleading uniformity upon different types of Law. Therefore, he makes it clear within ‘The Concept of Law[2]’ that law and morality should remain separate. In Hart’s Holmes lecture he claims that, “there is no necessary connection between law and morals[3].” Hart doesn’t believe it is possible to define law in such a way as to state that they are all simply coercive orders. As to Hart some laws are ‘enabling rules’ which dictate how we are to make a contract or a will for example. Although, Hart does states that he does believe law is able to be regarded as coercive orders. As mentioned previously, the fact that some laws do confer privileges and powers upon individuals without imposing any duties or obligations on people.

Within Hart’s theory there are criticisms of the traditional positivism views, such as the view brought forward by John Austin in The Province of Jurisprudence Determined.[4] The first criticism by Hart is Austin’s theory of command. In which Hart believes that this command is inadequate, as this theory is that law is self-standing. Austin claims that all laws are coercive orders as the command is issued by the sovereign with a threat of sanction or punishment and in response to this people are usually obedient. These four concepts would allow us to understand the law as free floating. There would be no need for morality and no scope for it to even fit in, as it wouldn’t fit into the four concepts. There is no need for a higher power of God or morality. However, Hart believes laws do differ from simply being ‘commands of a sovereign’ due to the fact they can apply to those who enacted and not to other individuals.  Also, the fact as previously mentioned; not all laws impose duties some laws do confer powers upon people.

Hart address the issues he finds with Austin’s theory by establishing the Primary and Secondary rules. The secondary rules are; the rule of recognition,[5] the rule of change[6] and the rule of adjudication[7]. Hart states that laws which impose duties upon individuals are “primary rules of obligation.” For a system of primary rules to function efficiently, “secondary rules” are in place, due to the fact it may be necessary to allow the legislators to make changes to primary rules if changes are needed to be made. Secondary rules may be necessary can be used by courts interpret and apply primary rules. The rule of change are the rules that empower people to create new primary rules, which not only includes authorisation of legislative bodies but also the empowerment of individuals to create new rights and duties through wills, trusts and such[8]. Rules of adjudication “empower individuals to make authoritative determinations of the question whether on a particular occasion a primary rule has been broken[9]”

The rule of recognition is a set of criteria by which the officials determine which rules are and which rules are not part of the legal system.[10] Hart’s believes that the foundations of a legal system is the adherence to and the acceptance of an ultimate rule of recognition. In which the reasonableness of both the primary and secondary rules can be evaluated[11]. If a primary or secondary rule doesn’t satisfy the criteria provided by the rule of recognition, then therefore the rule is not legally valid. There are two minimum requirements which must be first satisfied in order for a legal system to exist. The first being that private citizens must generally be obedient of the primary rules of obligation. Secondly, the public officials must accept the rules of recognition, rules of change and rules of adjudication as standards of official conduct[12]. The ‘internal’ aspects of rules are central to Hart’s approach to law[13]. Hart distinguishes between the ‘external’ and ‘internal’ aspects of rules. As he describes the external point of view as the observer not needing to accept the rules of the legal system.[14] However the internal point of view is that the individuals whom are governed by the rules must accept them[15]. Hart does see law as being a system of rules, however, he does believe that where there are gaps in the system, and there is a penumbra of doubt within cases, that judges should use their own discretion when they apply the law. As Hart does believe that statute law and cases can be too vague[16].

Hart believed that there was no necessary logical connection between of law and morality. For Hart, the existence of legal rights and duties may be devoid of any moral justification[17]. Hart’s definition of legal positivism is, that it is the theory in which there isn’t logically a connection between law and morality. However, even if he doesn’t believe there is a logical connection between law and morality he still describes his own viewpoint as ‘soft positivism’. This is due to the fact that he acknowledges the rule of recognition may consider compatibility of a rule with morals[18]. Hart does acknowledge that law and morals are bound to intersect at some point. Which is why he believed it then becomes necessary to distinguish between what law is and what law ought to be. According to Hart, legal interpreters should display the truthfulness or veracity about law, by concentrating on what it says rather than focusing on the aspect on what one wishes it to be said[19]. Hart states “The word ‘ought’ merely reflects the presence of some standard of criticism; one of these standards is a moral standard, but not all standards are moral[20].” He warns of the danger of focusing on what law ‘ought’ to be rather than what law is.

Lon L Fuller:

Fuller believes in the morality of law, in his most famous text “The Morality of Law[21]” he explains the internal morality of law[22] and the obedience it imposes upon individuals. Within this text he sets out a strong argument that there is no real conceptual distinction between law and morality. Fuller’s definition of law is a way of achieving social order through “subjecting human conduct to the governance of rules[23].” For Fuller to warrant that title of law however they must meet the certain criteria relating to that function if they want to be classed as law.[24] The internal morality of law analysis Fuller puts forward is in the form of his “Eight principles of legality[25]”. In which he sets them out in the following; (1) law must be existence not ad hoc[26], in which he means that laws should already be decided and not made up in the moment. (2) Laws should be promulgated[27], Fuller states “a failure to publicize or make available to the affected party, the rules he is expected to observe[28]” laws should be widely promulgated so there is no excuse for someone to be ignorant of the law. (3) Retroactive law making some be minimised, law should be prospective, so law is in action from when it has been made[29]. (4) Laws need to be understandable, they should be clearly stated and comprehensive and make sense in itself and the broader sense of the legal system[30]. (5) Law should not be contradictory; the various aspects must be consistent with each other[31]. (6) Laws should not require conduct beyond the abilities of those affected, it must be possible to obey the law[32]. (7) They should remain relatively constant through time. (8) There should be a congruence between the laws announced and the laws applied[33]. The laws must be applied and administered as they were stated, which gives an obligation on who administers the law to apply it as a rule as it was originally decided by Parliaments as an act. Fuller’s view is that a system of rules that does not satisfy these principles cannot achieve law’s essential purpose. Which is to achieve social order through rules that guide behaviour. If a system of rules was to fail to satisfy principle two of being promulgated so being well publicised and principle four of being understandable then society would be unable to understand what the laws are and what the laws require of them. These eight principles to Fuller are internal in the sense that they infuse morality into the legal system.  These internal principles constitute morality, for Fuller, as he believes that law has positive moral values in two respects. The first being that; law conduces to a state of social order and the second that it does so by respecting human autonomy as rules guide behaviour[34]. As Fuller states that no system of rules can achieve these morally valuable objectives without somewhat complying with these eight principles of legality, therefore for Fuller it is constituting morality[35].

Fuller conceptual naturalism has fundamental differences from that of classic naturalism. This is due to the fact that Fuller rejects the view that there are necessary moral constraints on the procedural mechanisms by which law is made and administered. In ‘the Morality of Law’ he states; “What I have called the internal morality of law is in a sense a procedural version of natural law … concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be”[36]. Fuller also rejects the idea that there are infinite and eternal principles that exist like a “brooding omnipresence in the sky[37]” in which he disregards natural laws as “higher laws” and likens them to, the natural laws of carpentry. By doing this, Fuller rejects the Christian doctrines of natural law of the seventeenth and eighteenth-century rationalist doctrines of natural rights and does not subscribe to a system of absolute values[38].

Interview Question/ Hart and Fuller debate on Morality:

The interview with Lord Justice Alan Ward[39] brings up the issue of morality within law. This is due to the fact that he was one of the judges who decided on the ‘Re A (Children) (Conjoined Twins: Surgical Separation) [40]’ case in which it was to be decided if the conjoined twins joined at the pelvis should be separated. Knowing that if they were Mary would die but would save her twin, Jodie. Ward LJ another judge who also decided this case said the court was ‘not a court of morals[41]’ and considered that the operation would be lawful self-defence. This brings back up the issue that Hart and Fuller disagree upon, the idea of the morality of law. Professor Hart in “Law, Liberty and Morals[42]”  claimed that law should only be used to impose moral values where the immoral conduct is causing harm (to the person themselves or others)[43]. Which is known as a “paternalistic” approach. However, if we apply this to the case within the interview, without this operation both twins would die. The parents in this case refused the operation on religious grounds however by doing this operation it would allow one of the twins to have a chance at life. Even if Hart doesn’t think that morals should be brought into the decision and it should be based upon law and legal reasoning, the operation went ahead based upon the fact that it was in Jodie’s best interest. Also in any event the operation would be legal[44]. Fuller would of course take into consideration the morals of the case. He may pose the question would it be moral to kill one life to save another? Or moral to allow both of the twins to die if the operation was not to go ahead? As these are the kind of questions that this case brought up. Lord Justice Alan Ward comments in the BBC article that “The question is simple – do you kill one to save the other, or do you let two die? This of course is an extremely difficult question for the judges to decide. However, he does feel that “the legal system was still the right place to consider such controversial ethical and moral issues[45]” he believes that it is for the judges and the legal system ultimately to decide such an issue.

This debate of morality and law between Hart and Fuller did continue for many years, it originally started whenHart delivered his Holmes lecture at Harvard Law School in 1957, in which it was titled “Positivism and the Separation of Law and Morals” which was then published in the Harvard Law Review in 1958. Fuller replied to this in his article “Positivism and Fidelity to Law: A reply to Prof. Hart” published in the Harvard Law Review in 1958. Which was the beginning of the famous debate between them both. A good example of their debate is seen in the differing opinions on the ‘Nazi Grudge case’. In which a, German women in 1944 denounced her husband to the authorities for making insulting remarks about Hitler. He was found guilty and sentenced to death but not executed and sent to the eastern front[46]. The wife’s defence was that she reported her husband due to the fact he committed an offence under a Nazi statute of 1934. The court found that, the Nazi statute, “being contrary to the sound conscience and sense of justice of all decent human beings[47]” and didn’t have a legality that could support her defence, finding her guilty. This decision is seen as a triumph for natural law.

Hart’s position on this was that even if he was to commend the courts objective of punishing this women for “an outrageously immoral act”[48] to achieve this the statute which she relied upon which has been established since 1934 would have to be declared “not to have the force of law” which Hart argues that “wisdom of this course must be doubted.”[49] The solutions to this were, to let the women go unpunished or to introduce “a frankly retrospective law… with a full consciousness of what was sacrificed in securing her punishment in this way.” [50] Hart comments that “It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems[51].” Which is Hart’s justification for using retrospective law to punish the women. Fuller felt that the German courts were correct in their decision. As to Fuller the Nazi German legal system did not meet the basic rules.[52] The decision that the court made for Fuller created respect for law and morality, by making the immoral law forbidden as being law. As the Nazi law lacked the internal morality required in the law-making process for Fuller for it to warrant the title of being ‘Law’

Critical analysis:

Hart rejects a moral traditional positivist view, in particular Austin and his ‘Command theory[53]’ which I agree with. Hart rejects this as he does not believe that law is simply free standing as ‘commands of a sovereign’. Due to the fact that some laws apply to those who enacted them and some laws do confer powers and privileges upon people. It would be over simplifying it to imply that all laws were commands. Hart also acknowledges that there are times in which morals and law will intersect as the Rule of recognition may even consider the compatibility of a rule with morals. I find Hart’s soft positivism easier to except as I do believe that morals can and do play apart in law and the decisions that are made, even if not to the extent that Fuller believes. However, the rule of recognition which is the cornerstone of Hart’s theory does have its flaws. Fuller notes that the rule of recognition isn’t derived from any other rules in Hart’s system and believes due to this that its inconsistent with the separation between law and morality[54]. He believes that rules must be morally good in order to be respected and felt that the laws are ‘good’. Although Hart defends this by claiming the rule of recognition is a source of law. Fuller believes it must reflect the moral beliefs of the society that it will be governing. As people must think that the rules are fair in order to make sure that people won’t break the rules. Hart tries to use the rule of games theory to state that many games work with rules without being connected to morality[55]. However, the flaw with this is that people choose to play games however people don’t choose to belong to society and be subject the rules. Therefore, there still is an issue of people following rules that they don’t believe to be morally fair towards them.

Fuller does clearly set out his theory and the theory of inner morality and the ‘eight principles’ however I can’t help but find fault within this. As Hart does point out Fuller is in confliction between “the notions of purposive activity and morality”.[56] In which he gives an example of poising, Hart states, “is no doubt a purposive activity, and reflections on its purpose may show that it has internal principles”. Fuller attempts to counter argue Hart’s critique by using the illustration of the South Africa’s apartheid regime, as this violates the external morality of law.[57] By doing this to show that is isn’t possible to commit social evil acts and fulfil the requirements of the inner morality of law. However, in this example if there is compliance with inner morality of law is to ensure external morality, why does Fuller feel the need to distinguish both of these[58]. If this isn’t true then Hart’s criticism would be correct, in that an immoral or ‘evil act’ could be possible even in following the ‘eight principles’. As, as long as the law that is (1) is in existent (2) public, as it is promulgated, (3) not retrospective, (4) clear (5) consistent, (6) to impossible to be complied with, (7) relatively consistent, (8) congruent. It could be committing an evil deed and follow these principles. As Fuller fails to make the inner morality clear that an immoral act could pass these principles. Although I do agree with the fact that Fuller rejects a more traditional natural law theory, as he rejects a higher law as being from ‘God’ or higher in a religious sense. As to Fuller he concentrates on the law being held to a higher standard of morality that unmoral laws should not be able to be laws at all.

Conclusion:

Both Hart and Fuller acknowledge that there can be a connection between law and morality. Hart believes that law and morality can intersect but that they should be separate. As for him the focus should be on what the law is and not what law ought to be. Whereas Fuller believes that law and morality are connected and there is no real distinction between the two. For Fuller any law that doesn’t comply with morality or his eight principles of law should not be classed as law. The BBC interview discussing the ‘Re A’ case, brings up the question of, should morality come into play when deciding a case, as this decision effects two children’s lives.  Hart and Fuller have debated on morality and law several times which was famously seen in their views upon the Nazi informer case. In which Fuller believed that the law she relied upon was so immoral that it could not be classed as law. Whereas Hart did believe the best decision would to punish her, he did not believe that this decision should be based wholly on morals and based upon if her actions and the law fit in with morality.  

Bibliography:

Table of cases:

• Re A (Children) (Conjoined Twins: Surgical Separation) [2000] H.R.L.R. 721

Primary Sources:

Book:

• Hart, H.L.A. The Concept of Law (2nd edn, Clarendon Press 1997) 29, 89-99, 110, 116, 139
• Fuller, L. The Morality of Law (2nd edn, Yale University Press; Rev Ed edition 1969) 39, 49-51, 53, 63-65, 71, 81-84, 96, 97
• Hart, H.L.A. Law, Liberty, and Morality (1st edn, Stanford University Press 1963)

Secondary Sources:

Books:

• Bix, B. Jurisprudence: Theory and Context (3rd edn, Sweet & Maxwell 2003) 38-39, 81
• Freeman, MDA.  Lloyds Introduction to Jurisprudence (7^th edn, Sweet and Maxwell 2001) 124
• Austin, J. The Province of Jurisprudence Determined (Cambridge University Press 1995)
• Weinreb, L. L. Natural Law and Justice (1st edn, Harvard University Press; Reprint edition 1987) 102-103
• Winston, K. I The Principles of Social Order: Selected Essays of Lon L Fuller (Revised edn, Bloomsbury Publishing PLC Hart Publishing 2002)
• Cane, P. The Hart-Fuller Debate in the Twenty-First Century (Hart Publishing; UK edn 2010) 33

Articles:

• Hart H.L.A, ‘Positivism and the Separation of Law and Morals’ [1958] 71(4) The Harvard Law Review 619-620
• H.L.A Hart, Book review of ‘The Morality of Law,’ [1965] Harvard Law review 1286
• Fuller Lon l, ‘Positivism and Fidelity to Law: A Reply to Professor. Hart’ [1958] 71(4) Harvard Law Review 639
• R. S. Summers, ‘Professor Fuller and the Morality of Law‘ [1965] 18(1) Journal of Legal Education 1

Online resources:

• www.jstor.org
• www.lexisnexis.co.uk
• http://home.heinonline.org
• Pavone, T:  A Critical adjudication of the Fuller- Hart debate’, available at https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_review.pdf
• BBC interview with Lord Justice Alan Ward available at  http://news.bbc.co.uk/1/hi/health/937194.stm

---

[1] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1997)

[2] ibid

[3] HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71(4) The Harvard Law Review Association<http://heinonline.org/HOL/Page?handle=hein.journals/hlr71&div=40&start_page=593&collection=journals&set_as_cursor=0&men_tab=srchresults> accessed 10 December 2017

[4]  John Austin, The Province of Jurisprudence Determined (1832) (Cambridge University Press 1995)

[5] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1997) 91-99

[6] ibid                                                      

[7] ibid

[8] ibid 95-96

[9] ibid 97

[10] Brian Bix, Jurisprudence: Theory and Context (3rd edn, Sweet & Maxwell 2003) 38-39

[11] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1997) 110

[12] ibid 116

[13] Brian Bix, Jurisprudence: Theory and Context (3rd edn, Sweet & Maxwell 2003) 39

[14] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1997) 89-91

[15] ibid

[16] ibid 29

[17] ibid 268-269

[18] ibid 250

[19] ibid 185

[20] HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71(4) The Harvard Law Review p70 Association<http://heinonline.org/HOL/Page?handle=hein.journals/hlr71&div=40&start_page=593&collection=journals&set_as_cursor=0&men_tab=srchresults> accessed 10 December 2017

[21] Lon. L Fuller, The Morality of Law (2nd edn, Yale University Press; Rev Ed edition 1969)

[22] Robert S. Summers, ‘Professor Fuller and the Morality of Law’ [1965] 18(1) Journal of Legal Education

 <http://www.jstor.org/stable/42891703?seq=1#page_scan_tab_contents> accessed 14 December 2017

[23] iBid 96

[24] Brian Bix, Jurisprudence: Theory and Context (3rd edn, Sweet & Maxwell 2003) 81 – referencing Lloyd L Weinreb, Natural Law and Justice (1st edn, Harvard University Press; Reprint edition 1987) 102-103

[25] Lon. L Fuller, The Morality of Law (2nd edn, Yale University Press; Rev Ed edition 1969) 39

[26] ibid

[27] ibid 49-51

[28] ibid 39

[29] ibid 53

[30] ibid 63-65

[31] ibid 65

[32] ibid 71

[33] ibid 81-84

[34] Kenneth. I Winston, The Principles of Social Order: Selected Essays of Lon L Fuller (Revised edn, Bloomsbury Publishing PLC, Hart Publishing 2002)

[35] ibid

[36] Lon. L Fuller, The Morality of Law (2nd edn, Yale University Press; Rev Ed edition 1969) 96-97

[37] ibid 96

[38] MDA Freeman, Lloyds Introduction to Jurisprudence (7th edn, Sweet and Maxwell 2001) p 124

[39] BBC interview with Lord Justice Alan Ward available at http://news.bbc.co.uk/1/hi/health/937194.stm > accessed 15th December

[40] In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] H.R.L.R. 721

[41] ibid

[42] HLA Hart, Law, Liberty, and Morality (1st edn, Stanford University Press 1963)

[43] ibid 201

[44]In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] H.R.L.R. 721

[45] BBC interview with Lord Justice Alan Ward available at http://news.bbc.co.uk/1/hi/health/937194.stm > accessed 15th December

[46]  Hart H. L. A. 1958 “Positivism and the Separation of Law and Morals.” Harvard Law Review 71 (4): 619

[47] ibid

[48] ibid

[49] ibid 

[50] ibid

[51] ibid 619- 620

[52] Peter Cane, The Hart-Fuller Debate in the Twenty-First Century (Hart Publishing; UK edn 2010) 33

[53] John Austin, The Province of Jurisprudence Determined (1832) (Cambridge University Press 1995)

[54] Fuller Lon l, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ [1958] 71(4) Harvard Law Review 639 <http://www.jstor.org/stable/1338226 > accessed 20 December

[55] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1997) 139

[56] H.L.A Hart, Book review of “The Morality of Law,” (Harvard Law review (1965) 1286

[57] Lon. L Fuller, The Morality of Law (2nd edn, Yale University Press; Rev Ed edition 1969) 159-161

[58] Tommaso Pavone, A Critical adjudication of the Fuller- Hart debate’, available at https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_review.pdf