LAW YOG
Law and Morality

Hart and Fuller’s Debate on Law and Morality

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Law and Morality share a distinctive kind of relation to each other. Some people believe Morality as the basis of Law, While others believe Both of them are very different from each other and do not share a similar relation. They do not hold a precise and unambiguous definition, but many eminent jurists have defined these terms as per their conscience. 

In simple words, the law is a set of rules, and regulations that are enforced by the state to its citizens. These are obligatory rules, and thus, these are binding in nature. Various jurists have defined the concept of law in different ways according to their belonging school of Jurisprudence, such as;

  • Austin, a prominent jurist of Analytical School and also Father of English Jurisprudence, has defined law as ”Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject.[i]
  • According to Salmond, Law is the body of principles recognized and applied by the state in the administration of justice.[ii] 
  • As per Roscoe Pound, the law is the social institution to satisfy social wants.[iii]

Similarly, Morality does not have a definite meaning, as it varies from person to person. In a general sense, morality tells us what is wrong and what is right. It defines a relation between righteousness, goodness, and honesty. However, these are unenforceable in the court of justice, and thus, these are recommendatory rules. 

For instance; A man is drowning in a river, and another person, namely X, is standing nearby and watching the accident and not helping the person. Here X has a moral duty to save the life of the drowning man, but he failed to do so. However, he is not liable in the court of justice, as there was no legal duty to save that person. There is a probability also that X does not know swimming, and hence, he did not help him. 

The Relation between Law and Morality:

Law and Morality share an inseparable kind of relation; both are very significant to each other and support as well. In earlier times, there was no distinction between law and morality; hence they were one and the same thing. It means morality was the laws for the ancient people. For instance,

  • For Indians, Dharma was the supreme law for them based on morality. Actually, Dharma means ‘the right way of living’. 
  • Greeks had great faith in natural rights.
  • Romans have relied on the principles of natural law as the basis of their laws.
  • In the Middle Age, Christian’s morality was regarded as the basis of their laws.  

So, it is quite clear that there was no clear and explicit distinction between law and morality in earlier times. The foundation of natural law school has also supported the philosophy of ancient times on law, and morality. They also maintained that law and morality are the same thing. Then Mimansa became the first person to distinguish between law and morality. He regarded law as obligatory rules and morality as recommendatory rules. Then the analytical school of jurisprudence laid its foundation in the nineteenth century. The supporters of this school highly criticized the theories of the natural school and emphasized that law and morality are two different concepts, such as;

  • Austin maintained that law had nothing to do with morals.[iv]
  • According to Bentham, Legislation has the same center with morals, but it has not the same circumference. [v]
  • Arndts also laid down four points of difference between law and morals
  1. In law, man is considered as a person because he has a free will. In morals, we have to do with determining the will towards the good.
  2. Law considers man only insofar as he lives in a community with others; morals give a guide to lead him even if he were alone.
  3. Law has to do with acts insofar as they operate externally, morals look to the intention- the inner determination and direction of the will.
  4. Law governs the will so far as it may by external coercion; morals seek a free self-determination towards the good.[vi]

Nazi Informer Case:

Under Nazi rule, a law was passed that prohibited any person to criticize the Hitler government even by word of mouth and made it obligatory to report such incidents to the defined authorities. So, a woman who had some personal issues with her husband reported against him for his derogatory remarks against Hitler. After the nazi government was overthrown husband filed a case against his wife for depriving him of his liberty. He asserted that he made those statements in his personal space. The court also found the wife guilty for depriving the liberty of her husband.

This case leads to a debate between Hart and Fuller, two jurists from different schools of jurisprudence having different ideologies. 

HLA Hart’s Stand:

Herbert Lionel Adolphus Hart or HLA Hart was a supporter and jurist of the analytical school of Jurisprudence. He criticized the judgment of the court in the Nazi Informer Case and maintained that law and morality are two different concepts. And also asserted that the woman should not be held guilty as she just followed the law that was present at that time. As a supporter of the analytical school, he focused on law as it is, that is, the basic principle of this school. 

He also made certain distinctions between law and morals, as follow;

  • He asserted that law remains law even if it does not fulfill the demands external criteria or morality
  • He also emphasized that a legal system might use the principles of morality for justice; but it does not become a criterion of its legal validity, unlike the rule of recognition.
  • He also said that law and morality are not interchangeable terms. So even if a law is inconsistent with morality, then also, it will be a valid law. 

He also professed that ‘minimum morality is an indispensable part of every community’. He laid down five facts, such as;

  1. Human Vulnerability
  2. Approximate Equality
  3. Limited Altruism
  4. Limited resources and
  5.  Limited Understanding and Strength of will.[vii]

So, it can be concluded that Hart has clearly excluded the concept of morality from the law. However, he accepted the presence of minimum morality in society as an essential part. 

Fuller’s stand:

Lon Luvois Fuller was an American legal philosopher and was a supporter of the natural school of Jurisprudence. He is well known for his contributions to jurisprudence and the law of contract. 

He supported the judgment of the court on the Nazi informer case on the following grounds;

  • According to him, to classify law as a law, it must possess certain characteristics that is morality in it. So, morality is a very significant and essential factor for the law. 
  • He asserted that if a law does not have morality, it is not a law.
  • He criticized the analytical school of jurisprudence that maintained that law is different from morality. He was reluctant to the idea of a positive school that devoid of any bridge between law and moral obligations. 
  • According to him, the Morality of law has two aspects; internal and external. The former is ‘a procedural version of natural law’, while the latter means ‘morality of aspiration’.
  • He laid down eight conditions for ‘inner morality of law’; these are
  1. Generality
  2. Promulgation
  3. Prospectivity
  4. Intelligibility
  5. Unself-contradictoriness
  6. Possibility of obedience
  7. Constancy through time
  8. Congruence between official action and declared rules.[viii]
  • He also asserted that a law may satisfy eight conditions of inner morality, and may even function for some time, but it will cease to operate with the end of the regime.

Difference between Hart and Fuller Philosophies:

The following are some major differences between Hart and Fuller Philosophies: 

S.No.HLA HartLon Luvois Fuller
1.He was a supporter and jurist of the analytical school of Jurisprudence.He was a supporter and jurist of the natural school of Jurisprudence.
2.He criticized the judgment of the court in the Nazi Informer Case.He supported the judgment of the court in the Nazi Informer Case.
3.He was of the view that law and morality are two distinct concepts, and law remains law even if it is against morality.He was of the view that somehow, law and morality is related to each other, and there can be no law without morality.
4.He emphasized five facts for’ minimum morality’;Human VulnerabilityApproximate EqualityLimited AltruismLimited resources andLimited Understanding and Strength of willHe laid down eight conditions for ‘inner morality of law’; these areGeneralityPromulgationProspectivityIntelligibilityUnself-contradictorinessPossibility of obedienceConstancy through timeCongruence between official action and declared rules..
5.Hart believed on the basic principle of analytical school, i.e. ‘Law as it is’ or the law present at that time only.Being a supporter of natural school, he emphasized that morality plays a significant role in society.
6.For him, law is supreme.For him, morality is the basis of law, hence morality is supreme.

For instance:

In India, there are certain laws that involve moral duties within it. Such as Theft, it is a moral duty to not steal or use anything without the permission of the authorized person, so if a person violates this moral duty, he will count as a criminal because of the law present at this time.

Euthanasia

This is also known as mercy killing. If a person is suffering from an incurable disease and there is the least probability for him to survive, then the patient or his family might decide on his future of survival. Some countries have legalized euthanasia while others have not. On the one hand, people support euthanasia based on the fact that death is better than the pain of the patient and sufferings of his family, while, other people do not support euthanasia relying on the fact that life is very precious and the only god has the right over the life of a person. As it is not a natural death, it creates conflict between laws and morality.

Conclusion:

It can be concluded that law and morals share an inseparable relation with each other. Both of these plays very significant in society. Somehow laws involve and preserve the morality within it, however, they are very different from each other as well. Morality is unenforceable in the court of justice while law does not. It is obligatory to follow the law but morality is only recommendatory rules. The debate between Hart and Fuller was also based on the question of whether laws are superior or morality. Both of them have different opinions on it that lead to the conflict between two different schools of jurisprudence. However, both of them indirectly accepted the significance of both, law and morals. 

Endnotes

[i] Monika, John Austin’s Analytical Approach to Positive Law: Explanation, Appreciation and Criticism,(May 31,2019), https://blog.ipleaders.in/john-austins-analytical-approach-positive-law/

[ii] LAW AS THE BODY OF PRINCIPLES RECOGNIZED AND APPLIED BY THE STATE IN THE ADMINISTRATION OF JUSTICE.EXPLAIN AND ILLUSTRATE, The lawyers and Jurists, https://www.lawyersnjurists.com/article/law-body-principles-recognized-applied-state-administration-justice-2/

[iii]GuestPost, What is Social Engineering?, (Nov 12,2015), https://blog.ipleaders.in/all-about-social-engineering/

[iv]Mohd Aqib Aslam, law And Morality In The Light Of Jurisprudence, http://www.legalserviceindia.com/legal/article-1888-law-and-morality-in-the-light-of-jurisprudence.html

[v] Mohd Aqib Aslam, law And Morality In The Light Of Jurisprudence, http://www.legalserviceindia.com/legal/article-1888-law-and-morality-in-the-light-of-jurisprudence.html

[vi] Tejas Vasani, Relation between Law and Morality, ( Jan 14,2020),

[vii] Dr.S.R. Myneni, Jurisprudence (Legal Theory), Morality(Law and Morals) 194 (2d ed. 2004).

[viii] Dr.S.R. Myneni, Jurisprudence (Legal Theory), Morality(Law and Morals) 193 (2d ed. 2004).

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Ekta Sehra

Student, Jaipur National University

The author is a student pursuing B.A.LL.B.(Hons.) degree at Jaipur National University. She is always eager and enthusiastic to gain knowledge in various subjects and desires to change the wrong perspective of people through her writings. For any clarifications, suggestions and feedback kindly find her at sehraekta2@gmail.com

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