Hart’s positivism argues that law is valid through procedural origins, independent of morality. Fuller’s natural law contends that ethical principles are essential to law’s legitimacy and social respect.
Introduction
Are law and morality inherently connected, or can they operate independently? This essay explores whether there is a necessary link between law and morality by examining the perspectives of legal positivism, represented by H.L.A. Hart, and natural law theory, championed by Lon L. Fuller. By analyzing their theories and the implications for contemporary legal systems, this essay argues that while Hart’s positivist approach offers clarity in separating legality from morality, Fuller’s naturalist theory provides a framework that reflects the ethical foundations essential for legitimate and respected legal systems.
Legal Positivism and H.L.A. Hart
Legal positivists like H.L.A. Hart argue that law is a distinct system of rules and commands, existing independently of moral or religious considerations. This analytical approach to jurisprudence insists on a clear divide between “what is” (the state of law) and “what ought to be” (moral considerations). According to Hart, the validity of law is derived from its sources and procedural adherence, rather than its moral content. [1]
Hart’s key argument is that laws do not need moral approval to be valid; rather, they are defined by their origins in an established legal process. He acknowledged that morality has influenced law throughout history but maintained that law and morality remain independent entities. In Hart’s view, the legal system’s foundation is rooted in procedural integrity, not ethical standards.[2]
Hart introduced a framework distinguishing primary rules, which impose duties on individuals, from secondary rules, which govern the creation, modification, and adjudication of primary rules. A pivotal secondary rule is the “rule of recognition,” which acts as a validating criterion within a legal system, providing structure and coherence without invoking moral values.[3]
However, Hart recognized “penumbral” cases- ambiguous situations where the application of legal rules is unclear. He argued that in such cases, judicial interpretation is necessary and may involve moral reasoning. This interpretative aspect does not imply that morality is intrinsic to law’s existence; rather, it serves as a pragmatic tool for judges in complex cases. Hart insisted that morally questionable laws remain legally valid if they adhere to procedural norms, underscoring the distinction between law and ethics. [4]
Natural Law Theory and Lon L. Fuller
In contrast, Lon L. Fuller, a proponent of natural law theory, argued that law inherently contains a moral dimension. According to Fuller, law is not merely a set of commands but an endeavour to establish order in society, guided by moral principles. For Fuller, law’s legitimacy depends on its alignment with ethical standards that are essential for fostering social cooperation.[5]
Fuller differentiated between the “morality of aspiration” (an ideal standard individuals strive to achieve) and the “morality of duty” (the basic obligations necessary for social functioning). He further divided morality into internal and external dimensions. Internal morality concerns the procedural standards of lawmaking, which include clarity, consistency, and fairness, while external morality involves the moral content of laws themselves.[6]
Fuller outlined eight principles (desiderata) that laws must meet to be considered valid:
1. Laws must be general and apply to everyone.
2. Laws must be publicly accessible.
3. Laws must be clear and comprehensible.
4. Laws must avoid contradictions.
5. Laws must not require the impossible.
6. Laws should remain relatively stable over time.
7. Laws must be enforced consistently.
8. Laws must align with the declared purposes of governance.[7]
Fuller argued that these principles form the “internal morality” of law, a framework ensuring that laws serve their social purpose effectively. In Fuller’s view, laws lacking this moral basis fail to function as true laws because they undermine trust, predictability, and cooperation within society.[8]
The Hart-Fuller Debate and the Grudge Informer Case
The Hart-Fuller debate vividly illustrates their contrasting views on law and morality, particularly as seen in the “Grudge Informer” case. This case involved a German woman who, under the Nazi regime, reported her husband for criticizing Hitler, leading to his prosecution under Nazi sedition laws. After the war, the husband sought legal redress against his wife, and the court ruled her actions morally reprehensible, invoking pre-Nazi legal standards.[9]
Hart argued that while the Nazi laws were morally appalling, they were legally valid because they had been enacted through proper legal channels. He maintained that courts should not retroactively invalidate laws based on moral judgments; instead, they could introduce new legislation to address past injustices. Hart’s position was that applying retrospective morality risks destabilizing legal systems by undermining predictability and objectivity.[10]
Fuller, however, contended that the Nazi laws were so fundamentally immoral that they could not qualify as legitimate law. He argued that laws devoid of ethical content lack the authority necessary for law to function as a moral enterprise. In Fuller’s view, the Nazi regime’s laws violated the internal and external morality of law, thus failing to meet the basic criteria required for legitimacy. The court’s decision to invalidate the woman’s actions was, for Fuller, justified on moral grounds, reinforcing his belief that law must align with society’s ethical standards.[11]
Law, Morality, and Pluralism in Modern Society
The implications of the Hart-Fuller debate are particularly relevant in pluralistic societies where moral standards vary widely. For example, issues like same-sex marriage, once illegal and widely condemned, are now legally and socially accepted in many jurisdictions, such as the UK’s legalization under the Marriage (Same Sex Couples) Act 2013.[12] Fuller’s framework allows for such legal evolution, suggesting that laws should adapt to contemporary moral norms, thereby enhancing their legitimacy and public respect.
In contrast, Hart’s strict separation between legality and morality faces challenges in adapting to pluralistic contexts, as laws may appear rigid and unresponsive to changing societal values. Fuller’s naturalist approach, grounded in shared values and ethical principles, offers a framework in which laws evolve alongside societal morality, fostering greater respect for legal systems as both moral and regulatory entities.[13]
Conclusion
In conclusion, while Hart’s legal positivism provides a framework for understanding law as distinct from morality, Fuller’s naturalist approach better addresses the moral dimensions necessary for law’s legitimacy. Fuller’s emphasis on the internal morality of law clarity, consistency, and fairness offers a basis for understanding why individuals respect and follow laws beyond fear of punishment. This connection between law and morality not only enhances legal legitimacy but also aligns legal systems with society’s evolving values, reinforcing law’s dual role as both a moral and regulatory guide.
[1] H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), pp. 78-79.
[2] Ibid., pp. 155-156.
[3] Ibid., pp. 92-94.
[4] H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (1958): 607-615.
[5] Lon L. Fuller, The Morality of Law, Rev. ed. (New Haven: Yale University Press, 1969), pp. 5-7.
[6] Ibid., pp. 33-34.
[7] Ibid., pp. 39-41.
[8] Ibid., pp. 153-155.
[9] “Grudge Informer Case,” Harvard Law Review, Vol. 71, No. 4 (1958): 630.
[10] H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (1958): 620.
[11]Fuller, The Morality of Law, pp. 39-43.
[12] Marriage (Same Sex Couples) Act 2013, UK Public General Acts.
[13] Fuller, The Morality of Law, pp. 153-155.
