Hart Fuller Debates Flashcards
Who were involved in these debates?
Professor HLA Hart is a legal positivist who wrote a paper in the Harvard Law Journal called Positivism and the separation of Law and Morals. This was met with a reply by Lon. L. Fuller who wrote: Positivism and Fidelity to law - A response to Professor Hart.
What is the basic difference between positivism and natural law?
Positivism focuses on what law is as opposed to what law ought to be.
What is the first criticism of the Positivist approach?
Fuller contends that the Austinian definition of law -
“Law is a command given by the sovereign with a threat of sanction to which people are generally obedient” is empirically inaccurate. What is important in this is to note that there appears to be no scope for morality within this definition at all.
How does Hart respond to Fuller’s criticism of the Austinian model
Where it can be empirically observed that the definition of law as defined by Austin is not sufficient and downright inaccurate, Hart rescues the notion by inaugurating the concept of Primary and Secondary Rules. Primary rules exist within the Austinian framework. The secondary rules, meanwhile, may involve rules of recognition, administration or adjudication that don’t involve the Austinian model. In this way, Hart nuances the understanding of law to rescue positivism from fuller’s empirical criticism.
Second criticism
The problem of the Penumbra:
Positivists note that the law is completely self-standing and isolated, with no scope for the application of morality. However, the penumbra deals with situation wherein in law, certain words have to be ascribed meanings that deviate from their literal connotations. Here, judges have to adjudicate on the basis of what ought to be the meaning of the word as opposed to what is. For example, (vehicles in the park are banned, bicycle is not a vehicile). In this manner, because an external consideration is being applied, Fuller notes that law is not self-standing.
Hart’s response to the penumbra’s criticism
Hart states that even when looking for definitions of words to qualify for the penumbra, judges are only expected to look within the internal rationale of the law itself to achieve consistency. What ought to be isn’t something that requires a moral application, but is to be understood within a rational legal framework.
What is the third criticism?
What happens when the law itself is morally bad. Natural law scholars say that you must have a higher principle behind the legal system, otherwise there’s no way of condemning morally reprehensible legal regimes.
Grudge Informer Case.
A positivist would ask for completely obedience to the law. The woman should not be punished for submitting herself to a legally consistent law.
A natural law scholar would say that the woman be punished as the law in question violates every conscionable principle.
What is fidelity to law as proposed by Fuller?
The positivists have said that the legal system is self-standing. When we decide what ought to be they say we’re looking it from within the legal system. Fuller says that on the contrary the doctrine of fidelity to the law is something that you’re appealing to outside. The very notion of fidelity to the law is beyond the law. That is a contradiction that legal positivists do not realize. (They are looking towards morality without calling it as such)
How does hart defend positivism from the criticism of the morally bad law?
In order to overcome the problem of morally bad law, Hart allows a certain influence of morality within the legal system. This is referred to as an absolute minimum. Only so much moral infiltration as is required to maintain the total consistency of the positive legal system. Hart therefore allows for an inclusionary positive system.
