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‘A CRITICAL ANALYSIS OF HOW MORALS INFLUENCE LAW WITH NEXUS TO THE HART FULLER DEBATE’
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‘A CRITICAL ANALYSIS OF HOW MORALS INFLUENCE LAW WITH NEXUS
TO THE HART FULLER DEBATE’
AUHTORED BY - AARYA SHRIVASTAVA
& SEEMA SHRIVASTAVA
INTRODUCTION
BRIEF OVERVIEW:
Rule of Law is the supreme principle
that commands that neither the people nor the State is superior to law and that
contrasts the tyrannical power of a sovereign with the caprice of despots.[1] The rule
of law is a concise conceptual understanding of the qualities, characteristics
and contents of law itself. It ables society to come up with norms and legal
requirements that guide people towards harmonious cohabitation while refraining
from imposing undue cognitive demands of compliance.
Paton defines morals as that tool of
social ordering which ensures the supreme good. It is inclusive of all manner
of regulations, benchmarks, codes, principles or norms by which men restrain,
guide and influence their relationships with themselves and with others. Morals
are the true and most original lodestar of virtuous human existence.
Primitive societies demonstrate that
morality, in conjunction with divinity, was used to regulate human activities
and served as a code of conduct for people. Hence, this paper will be an
examination of the rule of law with nexus to our notions of morality and virtue
and answer whether it is morals that the State uses to formulate laws by
putting regulated sanctions and legitimizing them in the form of hardbound
text.
STATEMENT OF PROBLEM:
To what extent the Rule of Law is
Morally inclined?
RELEVANCE OF STUDY:
The connection of law and morality
has been much discussed since the revival of the scientific study of
jurisprudence, but the question has not yet been resolved, and may never be.
This paper attempts to clarify, with practicality, the impact of morals on law.
LITERATURE REVIEW:
Positivism and Fidelity to Law: A Reply to Professor Hart
Positivism and Fidelity to Law: A Reply to Professor Hart
Lon L. Fuller
Source: Harvard Law Review, Feb.,
1958, Vol. 71, No. 4 (Feb., 1958), pp. 630-672
Positivism and the Separation of Law and Morals
H. L. A. Hart
Source: Harvard Law Review, Feb.,
1958, Vol. 71, No. 4 (Feb., 1958), pp. 593-629
RESEARCH METHODOLOGY:
The kind of research conducted in
this paper is doctrinal in nature. Sources like books, articles, research
papers, and websites have been referred to.
RESEARCH OBJECTIVES:
? To jurisprudentially analyse the
concept of Rule of Law and Morals.
? To bring out the affinity between the
two supported with the views shared by HART and FULLER
HYPOTHESIS:
Law is majorly influenced by the
moral values of man.
RESEARCH QUESTIONS:
- What is meant by the Rule of Law
and why Man needs it?
- What is our notion of morality,
ethics and values?
- Is the Rule of Law Morally
inclined?
I.
WHO ARE WE AND WHY WE NEED LAW?
CRITICALLY ANALYSING THE HUMAN MIND
The most urgent question that lies
before us, even so, all our lives, is ‘Who are we?’. What is the purpose and
construct behind our existence? Have we a motive to fulfill or a wrong to
right?
Jurisprudentially, an individual is
defined by the choices it makes. Individualism relates
to our basic values that dictate the choices we make. These choices reflect who
we are and what we value.[2]
Human nature is a rather difficult puzzle to solve. Philosophers and
psychologists have, over the years, attempted to decipher the long bothering
enigma of individualism and uniqueness. Human beings are both sociable and
analytical on the one hand and radical and self-seeking on the other.
Humans can be argued to
have a dire need for social affiliation because it is in language that the
essence of humanity is reflected. This humanity mirrors their basic sociability
and rationality. And without language, there lies no scope for forming groups
or communities.
But aren’t humans equally selfish and
bounded by innate thought guided by decisions based on ‘survival of the
fittest’? Humans are engineered with a natural boundary or bubble that isolates
them from the rest of the beings. They, at least at one moment in life, have
and most certainly should think about nothing but themselves. This forms their
ability to be unique and it is the such notion of individuality that enables
them, with the passage of time, to outgrow sociality and become increasingly
enunciated.[3]Because in
a world of scarcity man is bound to get overpowered by his thoughts of
self-preservation and supercede all values in order to survive. This is bound
to affect the group’s harmonious mechanism. Rationality suggestes that a coping
instrument to resolve this anticipated dispute, as and when it arises, leads to
one’s desire for societal being and possibly cohabiting in communities.
Had the man been a creature of
everlasting virtue freed from corruptibility and ignorance he would been called
God and the concept of the supreme lord would have been left unventured. To our
dismay, man became corrupt the day he committed the original sin when he
plucked and gulped the forbidden fruit. Since then, it has become the face of
the truth that man needs law and law needs man. Another side of the coin
propels that humans have the distinct ability of reasoning. But even when
drawing conclusions from the store of our knowledge and values the power of
reason and inference can end up being imperfect.[4]
WHAT IS RULE OF LAW:
It is for this reason that the rule
of law is perceived to be the most accurate and desirable tool, born from a
cluster of values, for the purpose of institutionalizing manhood. This concept
was first given word by Aristotle, in 41 BC when he distinguished ‘the rule of
law’ from that made ‘by an individual.’ He went ahead to call them the system
of rules inherent in the natural order. The same was highlighted in the noble
works of Plato - ‘Complete Works of Plato’[5]
To understand the concept int concisely
it is often signified by stating that the Rule of Law ensures that no legal
person can enjoy rights/ privileges extended to all; nor can such a person be
subject to sanctions, not imposed on all. With the signing of Magna Carter in
England and the efforts of Professor Paine in America, the concept began taking
form all over the world. A constitutional lawyer going by the name of Albert
Venn Dicey deserves true credit for the conceptualisation of rule of law. He
propounded three principles to base his theory of ‘None above Law’
·
Supremacy
of law: The Rule of Law forbids the government or public officials from
exercising arbitrary or discretionary powers. It implies that a man can be
punished for a violation of the law but not for anything else. According to the
legal procedure, an alleged offence must be proven before the ordinary courts.
? Equality before the Law: According to
Dicey, it emphasises the impartiality of the law. It means that there will be
no distinction between rich and poor, officials and non-officials, majority and
minority, and no one will be degraded or upgraded. Everyone receives equal
justice under the law.
? The predominance of Legal spirit: The
written constitution is widely assumed to be the source of citizens' legal
liberties. It is not true, however, because Britain has an "unwritten
Constitution." Legal spirit is the real source of law in England. Its
customs, conventions, and judicial decisions reflect the legal spirit. Dicey
believes that individual liberties and rights are better protected in the
United Kingdom than in France.
The philosophical view of some
jurists discredits the validation of the Rule of Law that the overall quality
of single Privy Council judgments has been inferior in terms of developing the
law in comparison to the more diverse House opinion. A single lapidary
judgement supported by four brief concurrences can give rise to ongoing
interpretation issues that could have been avoided if the other members had
summarized, however briefly, their reasons for agreeing. A well-constituted
committee of five or more people can bring a wealth of professional and
jurisdictional experience to bear in shaping the law.[6]
Hence, there can be two major caveats
added to the concept of the Rule of Law to concretize its foundation and future
application. First, regardless of the diversity of opinion, judges must
recognise a duty, which is not always fulfilled, to strive for a clear majority
ratio. Without that, no one will know what the law is until Parliament or a
subsequent case establishes a clear rule. Second, and without questioning the
value or legitimacy of judicial development of the law, the sub-rule under
consideration, in my opinion, precludes excessive judicial innovation and
adventurism[7]. It is one
thing to shift the law's path by a few degrees; it's quite another to send it
in a completely different direction. The one is most likely foreseeable and
predictable, which a prudent person would allow for, whether the other is.
II.
HOW DO WE CONCEPTUALIZE MORALITY,
ETHICS, AND VALUES?
HISTORICAL TRAIL OF MORALS:
The doctrine of natural rights was
developed by the ancient Greeks to provide a theoretical moral foundation for
law. Greek ethical philosophy was used in Rome during the classical period. The
Roman jurists sought to discover and declare the content of natural law. They
gave us an ethical philosophical natural law in the form of idealised Roman
legal precepts. Natural law was given a theological foundation in the Middle
Ages, and Christian morals were considered the foundation of law.[8]
Natural law theories, which had a rational
moral foundation, became very popular in the seventeenth and eighteenth
centuries. In England, with the rise of the court of chancery and the
development of equity and ethical ideas from the casuist/sophist literature of
the sixteenth century and the general notions of right and wrong held by
chancellors were made liberalizing agencies[9].
In the continental Europe of the seventeenth and eighteenth centuries, the
philosophical ideas of juristic writers upon the law of nature were used in the
same way. Thus, moral duty was turned into legal duty. The individual human
being as the moral unit became the legal unit. It was conceived that moral
principle was to be also a legal rule and consequent progression of moral ideas
into legal ideas. It clearly shows how once a moral principle became an
equitable principle and then a rule of law in all legal systems of the world.
At the end of the eighteenth century, Kant replaced the rational foundation
with a metaphysical natural law used to demonstrate the obligatory force of the
legal order as it is. The analytical jurists argued that no foundation was
needed for law as the law stands upon its own basis as a system of precepts
imposed or enforced by the sovereign. Down to Kant, positive law had been
contrasted with a body of ideal moral law on the one hand and natural law on
the other. Kant, instead, set over against positive law the immutable
principles governing the making of law, by which law and law-making must be
judged[10] Kant goes
on to mention that laws, under positive schools are to be considered as
brain-child of wise and sapient men.
LAW AND MORALITY: THE AFFINITY
According to Roscoe Pound, moral
values are relative and individual in application, only devoted in reference to
circumstances. While legal percepts stand to be deployed generally in absolute
form. A relationship between the two must be established before the distinction
is made. As we trace the development of moral or ideal thinking among humans we
discover that the concept of morals preceded that of law. In the beginning, the concepts were one, conjoined not at the hip but
at the heart itself. In ancient Hindu Philosophy there were no distinctions
made, only later did they make amends in their thought and created room for
obligatory and recommendatory injunctions. Morals are born from religion that
found its source in conscience. In the seventeenth and eighteenth centuries
jurists such as Socrates, Aristotle and Plato propounded the affinity of
Morality and Law-making. This received severe criticisms in radicalist
responses in the eighteen century when philosophers like Austin and Bentham,
who borrowed from Hobbes stated that ‘Law is as it is posited.’
Austin's jurisprudence theory is a
work of fiction. It is founded on an examination of the law as it is, and at
its core is the concept of sovereignty that he received from Hobbes via his
neighbour, Bentham. Austin, like his great masters, regards a state's sovereign
power as absolute, possessing unlimited authority, and not subject to any law.
He treats this power as an existing fact, an ultimate datum beyond which the
jurist is not required to pursue his investigations. The origin of positive law
is found in the exercise of that power, not in any decree of the Deity or any
natural law. Law is a general command imposed upon the subject by the unlimited
sovereign authority of the State, and this command is enforced by sanction. [11]
Austin’s fictitious concept of
value-less Legal norms sourced from the absolute sovereign was challenged in
the works of Henry James Sumner Maine. From a historical lens, every
proposition made by Austin was false or only partially true. Maine’s work showed
how societies without any political authority bowed to habitual obedience and
that law may not always possess legal sanctions or be labelled as commands of
the sovereign. He laid down, on the ashes of John Autin’s faux theories, the
ultimate truth and established that the essence of Law lay nowhere but in
Morals itself.
Moral principles are embodied in the
law; its force is dependent on those principles, and they hedge around and
control the sovereign authority as thoroughly as they control the actions of
the most humble subject.
“Law would not be really imperative,
we know, unless behind the sword of the magistrate, the bulk of mankind felt
the weight of social obligation, the irresistible burden of custom, of
immemorial tradition, and the like, a social, and even a religious sanctity”[12]
LAW AND MORALITY: THE DISTINCTION
The goal of the law is to subject the
individual to the will of organised society, whereas morality tends to subject
the individual to the dictates of his conscience. Law is concerned with men's
social relationships rather than individuals, whereas ethics is concerned with
individuals rather than societies. Although ethics consider motive and law
emphasise conduct, man's ethical duties cannot be considered without
considering his obligation to his fellows or his place in society.
These are few distinctions that can
be drawn out between Law and Morality:
? In law, man is considered a person
because he has free will. In morals, humans comprehend the will towards the
good.
? Law considers man only in so far as
he lives in community with others; morals give a guide to lead him even if he
were alone
? Law has to do with external acts
(Actus reas), and morals look to the intention- the inner determination and
direction of the will. (only thinking good for others entails the blessing of
God but doing wrong is punishable under religious precepts and law)
? Law governs the will (external
behavior) morals seek a free determination towards the good.
? Law talks about strict liability i.e.,
even if there is no fault but morals excuse the person if there is no fault.
III.
IS THE RULE OF LAW MORALLY INCLINED?
For the purpose of this paper let us
examine one of the most controversial and arguably interesting academic debates in
jurisprudence and also because it exemplifies the divide between positivist and
natural philosophies of law regarding the role of morality in law: THE
HART AND FULLER DEBATE
VEIWS OF PROFFESSOR HART:
Because Hart is a positivist, he does
not believe that there is a necessary link between law and morality. While he
acknowledges that there is a close relationship between law and morality, he
does not deny that morality has had a significant influence on the development
of the law. He does not, however, believe that they are mutually dependent.[13] As a
result, he believes that a distinction should be made between what law should
be and what law ought to be. The fact remains that moral criticism of a law
does not render it unconstitutional. Hart believes that officials should be
truthful about the law by focusing on what it says rather than what one wants
it to say.[14]
Hart defines the law as having
primary and secondary rules. Primary rules are laws that impose rules on
citizens and have legal ramifications. Secondary rules are laws that grant
authority and describe how laws should be recognised, adjudicated, or changed.
According to Hart, these rules are the heart of the legal system, and the rule
of recognition is the glue that holds the legal system together. As a result,
Hart argues that moral conformity is not required for the existence of a legal
system. Hart admits that law and morals are bound to intersect at some point,
such as when a case arises where the wording of the relevant statute is
insufficient to give effect to the purpose of the law (problems of the
penumbra), Hart says that such cases can be solved through judicial
interpretation. A decision can be made about what the law should be, and moral
factors play an important role in deciding such difficult cases.
LON FULLER’S VIEWS:
Fuller is a naturalist who sees laws
as a means of achieving social order by regulating human behaviour. He believes
that our legal systems are derived from morally based justice norms.[15]
He argues that for a law to be valid, it must coordinate
with a certain moral function test and here are eight desiderata set out by
Fuller; (I) Rules (ii) published (iii) prospective (iv) intelligible (v) not
contradictory (vi) possible to comply with (vii) reasonably stable through time
(viii) followed by officials.
Fuller urges legislators to consider
all of the above factors when determining whether a law is valid. Fuller goes
on to divide morality into two categories: the morality of aspiration and the
morality of duty. The morality of aspiration refers to the desired standard of
human behaviour that promotes his or her best interests. The morality of duty
describes the standards that people follow to ensure that society runs
smoothly. Fuller also discusses the "internal morality of law" and
"external morality of law" as forms of morality. The former is
concerned with the procedure of lawmaking, whereas the latter is more concerned
with the substantive rules of law that are applied in decision-making.[16]
Fuller rejects the positivist approach to law and argues
that society’s goals can be achieved by other means rather than relying solely
on the law.[17]
THE REASON BEHIND OUR ADFFINITY
TOWARDS LAW?
Upon a proximate examination of either view, the reader
may wonder why is it that we obey the law. Is it because we are bound by legal
sanctions backing the retrospective concept of law or is it because the law is
the only convenient prospect of a modern organised society? Can a human being
refrain from committing rape even when it is not punishable?
The answer to all my questions can be sought from
different points of view and that is why we have scrutinised two distinct yet
collateral philosophers: Hart and Fuller. From the lens of a student of
jurisprudence, I stand to confer the credit for obedience and compliance with
the law in the moral nature it possesses. These morals shape us and are born
from our perspectives of right and wrong. What we believe is right we obey
because it coincides with our moral precepts more than anything else.
This brings me to the end of my paper where I shall
discuss the laws imposed by an immoral state with an illustration of Nazi Laws.
“A German woman denounced 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 Fuhrer, which carried the death penalty. Although sentenced to
death he was not executed but was sent as a soldier to the Eastern front. He
survived the war and upon his return instituted legal proceedings against his
wife. The wife argued that she had not committed a crime because a court had
sentenced her husband in accordance with the relevant law of the time. However,
the wife was convicted of ‘illegally depriving another of his freedom’, a crime
under the Penal Code, 1871 which had remained in force throughout the Nazi
period. The court described the Nazi laws as “contrary to the sound conscience
and sense of justice of all decent human beings” (1951)”[18]
According to Hart's positivist viewpoint, the Court's
decision was incorrect because Hart believes that no matter how heinous the
Nazi laws were, they were in accordance with the Enabling Act passed by the
Reichstag and were valid. It, therefore adheres to Hart's rule of recognition.
Fuller, on the other hand, recognized the Court's decision because it created
respect for law and morality, and Fuller claims that all Nazi laws were illegal
by using his 8 desiderata. This
explains why the courts ignored the earlier 1934 Act and upheld the wife's
conviction. The courts would have had to acquit the wife if they had not used a
moral concept in their application of the law.
According to Hart, the Courts had
only two options to preserve the integrity of the judicial decisions: either
let the wife go free because the statute protected her, or make a retrospective
law repealing the statute under which she claimed protection and declaring the
perpetrators of such atrocities criminals.
CONCLUSION
I can safely conclude that I am in agreement with the
views of Fuller and I think that Hart is mistaken because his arguments fail.
In my opinion, the grounds on which Hart himself becomes inconsistent are when
he concedes to the fact that his rule of recognition requires only a minimum of
morality in law. However, Impartiality in the application of a rule is a moral
standard which is necessary for any legal system[19]
Furthermore, I have extended my arguments to a pluralistic
world like ours where morals transgress into varied shapes and forms as one
moves from one land to another. The most crucial argument to my analytical
conclusion can be the ambiguity of moral precepts; that morals cannot be put
under an objective microscope of exhaustive definitions because there is nothing
more change-worthy than the ideals, values and morals of humans. I have used
this to aid my case along with an example. For instance, sexual intercourse
that goes against nature was once criminally punishable in India. However, as
societies evolved and so did human thinking, this led to the landmark
decriminalization of section 377 of the Indian Penal Code, 1860. This just goes
to show the influence of our notion of morality on the law we obey. Something
that used to be considered as immoral was once illegal but is now legal for it
no longer oversteps the bounds of our extended and enhanced notion of morality.
The uniqueness of man intertwined with that of his beliefs is what makes him
abide by the law of the land.
Therefore, it can be stated without
suspicion that morals have a firm and substantial influence not only on
law-making but also the compliance of the same.
“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.”[20]
BIBLIOGRAPHY
?
Stephanie Patron, “The
Inner morality of law- An analysis of Lon L Fuller’s Theory?,
?
[2014], Glasgow University
Law Society Law Review
?
Steven Shavell, „ Law
versus morality as regulators of conduct?
? Shahram Heshmat Ph.D. - University of
Illinois at Springfield
? Lon Fuller, The Morality of Law (Yale
University Press
? Benjamin C Zipursky, „Practical
Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty
? HLA Hart, The Concept of Law, Revised edition, Oxford
University Press Publications
?
Pound,
Interpretation of Legal History
? Roscoe Pound, Law and Morals
[2] Shahram Heshmat Ph.D. - University
of Illinois at Springfield
[3] S. Letwin, The Gentleman in Trollope: Individuality
and Moral Conduct 63 (1982).
[4] J. Lucas ‘My discussion of human nature. The
Principles of Politics at 1ff. (1966).
[5] Complete Works - Plato - John M Cooper (Edited)
[6] Lord Reid, "The Judge as Law-Maker" (1972)
12 Journal of the Society of Public Teachers of Law 22 at pp, 28-2
[7] The distinction between a legitimate development of
the law and an objectionable departure from settled principle may of course
provoke sharp differences of opinion: see Kleinwort Benson Ltd v. Lincoln City
Council [1999] 2 A.C
[8] Pound, Interpretation of Legal History 98-9
[9] Day v. Slaughter, Prec Ch. 16 (1690); Fursakar v.
Robinson, Prec. Ch. 475 (1717); Chaman v. Gibson, 3 Bros. C-C 229 (1791). For
details see, Roscoe Pound, Law and Morals 31-9
[10] public; Boswell, Life of Johnson II, 258 (Croker ed.
1859)
[11] The Conception of Morality in Jurisprudence - T. W.
Taylor, Jr. - The Philosophical Review, Jan. 1896, Vol. 5, No. 1 (Jan. 1896),
pp. 36-5
[12] Harrison,
" English School of Jurisprudence." Fort. Rev., vol. XXX, p. 488.
[13] HLA Hart, The Concept of Law,
Revised edition, Oxford University Press Publications, 2002 at p. 185-200
[14] HLA Hart, The Concept of Law, Revised
edition, Oxford University Press Publications, 2002 at p. 219-223
[15] Lon Fuller,
The Morality of Law (Yale University Press c 1964) 33 – 91
[16] Benjamin C Zipursky, „Practical Positivism versus
Practical Perfectionism: The Hart Fuller Debate at fifty?, [2008] Vol 83, New
York University Law Review at p.1170- 1212
[17] supra note 4.
[18] Stephanie Patron, “The Inner morality of law- An analysis
of Lon L Fuller’s Theory?, [2014], Glasgow University Law Society Law Review
[19] Steven Shavell, „ Law versus morality as regulators of
conduct?, [2002] Vol 4, no. 2, American Journal and Economics review at p.
227-257
[20] Forsythe v DPP and the AG of Jamaica
Article Information
‘A CRITICAL ANALYSIS OF HOW MORALS INFLUENCE LAW WITH NEXUS TO THE HART FULLER DEBATE’
Authors: AARYA SHRIVASTAVA, SEEMA SHRIVASTAVA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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