Hart-Fuller Debate

Question 1

What is Hart’s central legal argument?

Answer 1

Premised on the separation thesis, there is no necessary connection between law and morals, or law as it is and law as it ought to be. (Essentially postivism)

Question 2

What is the penumbra interpretation?

Answer 2

The relationship of the law and morality does not come from the rules themselves but, from the interpretation of the rules. When interpreting the rules of law, morality enters the picture.

Question 3

What are Hart’s arguments against the penumbra interpretation?

Answer 3

1. Interpretations can be based on non-moral reasoning

2. Even if the interpretation is morally wrong, it is still an interpretation

Question 4

What is Hart’s criticism of natural law?

Answer 4

Natural law is a misleading approach since it would “cloak the true nature of the problems which we are faced and will encourage romantic optimism that all the values we cherish ultimately will fit into a single system.”
(no natural law system can encompass everyone’s moral views)

Question 5

What of Hart’s experiences contributed to his theory?

Answer 5

Hart wanted to be accepted as a serious philosopher in the philosophy department but regarded him as a lawyer instead. He wanted to come up with a theory to earn respect as a true philosopher.

Question 6

What are the general criticisms against Hart?

Answer 6

1. Dworkin: Morality is integral to the law itself through active interpretation
2. Fuller: The law is procedurally moral and there is fidelity to the law

Question 7

What are Fuller’s arguments against Hart?

Answer 7

Fuller’s arguments are centred around function, form and procedure rather than one primarily of moral content

1. Fidelity of law: People respect the law simply because it is the law. The law is good in of itself
2. Procedural morality: Morality of law can be innately construed from the procedures of law-making and governing. The fact that people accept legislative processes as acceptable show that people see a moral basis. (Skeptical doodie)

Question 8

What are the 8 precepts of internal morality by Fuller?

god bless dk how to memorise this really

Answer 8

1. Laws should be general
2. Laws should be promulgated
3. Retroactive rule-making and application should be minimised
4. Law should be understandable
5. Law should not be contradictory
6. Laws should not require conduct beyond the abilities of those affected
7. They should remain relatively constant through time
8. There should be a congruence between the laws as announced and as applied

Question 9

What is the consequence if one of Fuller’s 8 precepts is not met?

Answer 9

A total failure in any one of the eight precepts does not simply result in a bad system of law; it results in something that is not properly called a legal system.

Question 10

What are Hart’s criticisms of the Grudge Informer case?

Answer 10

While the law can be immoral, it does not mean that it is not law. Hart’s position is that law, moral or immoral, is still the law. Therefore, the Nazi statutes were still technically law, but prosecution should have been carried out pursuant to a retrospective law.

Question 11

What is the Grudge Informer case?

Answer 11

Prosecution of a W for reporting her H (a personal enemy) during the Nazi regime as a means of getting rid of him.
Nazi statutes seen as “contrary to the sound conscience and sense of justice of all decent human beings” even though the reporting was regarded as lawful, justifying the prosecution.