Jurisprudence-II
Law and Morality
Natural law theorists contend that there is an
essential connection between law and morality.
Traditionally, positivists believed that the law
exists without any iota of morality, and is based
entirely on social facts.
The foremost pillar of positivism, Hart, created
a theory of law which stated that there is no
‘necessary connection’ of law and morality.
Lon Fuller, a natural lawyer, argued against
positivism that there is a necessary connection
between law and morality, prompting the Hart v
Fuller debate.
Fuller believed that the law had an internal
morality that was within its procedure, thus, no
evil law could be made.
This debate centred round the Grudge Informer
Case;
o A German woman, denounced her husband to the
Gestapo under the Nazi statute of 1934. He
was sentenced to death which was converted to
military service on the Soviet front. The
woman was tried after the war and was found
guilty for ‘offending the conscience and
sense of justice of all human beings.’
Gustav Radbruch; was a German jurist, who was a
positivist before the war and became a natural
lawyer after the war.
Radbruch advocated for a higher law, one that was
above that which was enacted by the state. He
argued that we should denounce any law as law
which is unjust.
, According to Radbruch, the Nazi statutes were
against the higher law and unjust, hence they
were not law. So, the woman was guilty of
depriving her husband of his liberty.
Hart disagrees with Radbruch, his argument is too
crude. He says that the Nazi statute must have
been shown to have ‘no force of law’; that the
law was still law, but too evil to be obeyed.
According to Hart, there were two solutions to
post-war judgements;
o Let the accused go.
o Enact a retroactive law, while keeping in
mind the sacrifice of such a decision.
o He believes we have to be honest about such
cases, what we actually want to say is that
some laws are too evil to be obeyed, rather
than saying that an unjust law is not law.
The crux of why Hart thought that the decision in
the Grudge informer case was right is; that it
was the correct interpretation of the law because
it furthered a value mandated by the legal order
of the time. Since the value is morally
unacceptable, it shows that there is no
connection between law and morality.
Fuller didn’t recognise Nazi law as law, since it
violated the internal morality of the law, which
is in the procedure of making law.
He rejected Hart’s theory of interpretation in
the Grudge Informer case.
Fuller believes that the law is ‘purposive’, it
is enacted with a purpose, and it depends upon
the character of those who conduct it.
Hart counters Fuller again, he says that the
purpose of a law may not always be moral, it may
just be descriptive.
Hart however, does believe that the law must have
a minimum content of natural law and morality.
Law and Morality
Natural law theorists contend that there is an
essential connection between law and morality.
Traditionally, positivists believed that the law
exists without any iota of morality, and is based
entirely on social facts.
The foremost pillar of positivism, Hart, created
a theory of law which stated that there is no
‘necessary connection’ of law and morality.
Lon Fuller, a natural lawyer, argued against
positivism that there is a necessary connection
between law and morality, prompting the Hart v
Fuller debate.
Fuller believed that the law had an internal
morality that was within its procedure, thus, no
evil law could be made.
This debate centred round the Grudge Informer
Case;
o A German woman, denounced her husband to the
Gestapo under the Nazi statute of 1934. He
was sentenced to death which was converted to
military service on the Soviet front. The
woman was tried after the war and was found
guilty for ‘offending the conscience and
sense of justice of all human beings.’
Gustav Radbruch; was a German jurist, who was a
positivist before the war and became a natural
lawyer after the war.
Radbruch advocated for a higher law, one that was
above that which was enacted by the state. He
argued that we should denounce any law as law
which is unjust.
, According to Radbruch, the Nazi statutes were
against the higher law and unjust, hence they
were not law. So, the woman was guilty of
depriving her husband of his liberty.
Hart disagrees with Radbruch, his argument is too
crude. He says that the Nazi statute must have
been shown to have ‘no force of law’; that the
law was still law, but too evil to be obeyed.
According to Hart, there were two solutions to
post-war judgements;
o Let the accused go.
o Enact a retroactive law, while keeping in
mind the sacrifice of such a decision.
o He believes we have to be honest about such
cases, what we actually want to say is that
some laws are too evil to be obeyed, rather
than saying that an unjust law is not law.
The crux of why Hart thought that the decision in
the Grudge informer case was right is; that it
was the correct interpretation of the law because
it furthered a value mandated by the legal order
of the time. Since the value is morally
unacceptable, it shows that there is no
connection between law and morality.
Fuller didn’t recognise Nazi law as law, since it
violated the internal morality of the law, which
is in the procedure of making law.
He rejected Hart’s theory of interpretation in
the Grudge Informer case.
Fuller believes that the law is ‘purposive’, it
is enacted with a purpose, and it depends upon
the character of those who conduct it.
Hart counters Fuller again, he says that the
purpose of a law may not always be moral, it may
just be descriptive.
Hart however, does believe that the law must have
a minimum content of natural law and morality.
