INDEX

1. Abstract
2. Introduction
3. Natural Law and Legal Positivism.
4. Professor Hart’s perspective on Law and Morality.
5. The Problem of Penumbra according to Professor Hart.
6. Professor Fuller's perspective on Law and Morality.
7. The Hart-Fuller dispute on Morality and Law.
8. Critical Analysis of this Hart and Fuller Debate.
9. Conclusion
10. Selected Bibliography

2
 Abstract: -
The Hart-Fuller dispute in Jurisprudence is possibly one of the most fascinating scholarly
discussions of all time. It exemplifies the gap between positivist and natural legal theory in terms
of the importance of morality in the law. Hart, on the other hand, contended that law and morality
are distinct from one another and are mutually exclusive. Fuller believed that there is a strong link
between law and morality, and that law's authority stems from its conformity with morality. With
reference to the Hart-Fuller debate, I attempted to examine the connection between law and
morality in this work. For this research, the researcher used a doctrinal approach and gathered
resources from a variety of books, papers, and websites.

Keywords: - Emergence, Language, Legal positivism, Morality, Natural law, Fundamental

Legal System, Intelligence.

Introduction: -
Law and morality are concepts that can be comprehended, but attempting to define them is
challenging. Laws deal with the state's protection and enforcement of legal rights and obligations.
They are sanctioned, so anybody who disobeys the laws of the state risks being penalised. Human
activity is classified as either good or evil by morality. Moral canons, on the other hand, are
founded on moral responsibilities and obligations. One cannot be held legally accountable if he
does not follow the specified morality standards. Morality, on the other hand, involves some type
of motivation. When we do the right thing, we are rewarded with virtue and acclaim; when we do
the wrong thing, we are punished with guilt and disapproval. Human conduct is influenced by both
law and morality1.

While morality is concerned with controlling both men's interior and outward behaviour, the law
is primarily concerned with regulating men's external affairs. We've been bothered by the
relationship that exists between law and morality on several occasions. While it is true that
legislation contains some reflection of public morality, it is also true that many activities may not
be criminal under the law but are morally wrong. As a result, we are frequently attracted by

1
Steven Shavell, „ Law versus morality as regulators of conduct‟, [2002] Vol 4, no. 2, American Journal and
Economics review at p. 227-257

3
concerns such as whether morality should be enforced by legislation, whether laws would still be
binding if they did not represent moral principles, and if disobedience of terrible laws is ethically
permissible.

Natural Law and Legal Positivism: -

'An offence is an act banned by the law,' according to Bentham (Bentham,1781, Ch. XVII, p. 309).
The offence is created by the law, which is defined by society. It follows that an offence is not
inherent in natural law.

Austin states ‘The matter of jurisprudence is positive law . . . law set by political superiors to
political inferiors’ (Austin, 1832, p. 1). He continues (p.2) ‘The whole or a portion of the laws set
by God to men, is frequently styled the law of nature, or natural law . . .’. ‘But, as
contradistinguished to natural law . . . the aggregate of the rules, established by political superiors,
is frequently styled positive law, or law existing by position

Professor Hart's perspective on Law and Morality: -

Prof. HLA Hart was a critical moral philosopher and a legal positivist. As a legal positivist, he
believes that laws do not have to meet specific moral standards. While he recognises the strong
link that exists between law and morality, he does not feel that they are mutually dependent. He
claims that the existence of law cannot be measured in terms of its virtues or flaws. Regardless of
our preferences or dislikes, a law exists. The existence of a legal system is not contingent on
whether or not the law adheres to a set of minimal moral criteria. It is not necessary for a legal
system to adhere to morals in some way. On the basis of moral critiques, laws do not just vanish.

Unlike the other legal positivists, Hart does not dispute that morality has had a significant impact
on the formation of law. Hart recognises that law and morality will inevitably collide at some time.
As a result, it's important to distinguish between what law is and what law should be. According
to Hart, legal interpreters should demonstrate the honesty or veracity of the law by focusing on
what it says rather than on what one desires it to say2.

2
HLA Hart, The Concept of Law, Revised edition, Oxford University Press Publications, 2002 at p. 185-200

4
According to Hart, the substance of the law is made up of two types of rules: basic and secondary
rules. Primary rules are duty-imposing laws with legal backing that impose specific responsibilities
on citizens. Secondary rules are the authority-granting rules that specify how main rules should be
acknowledged, amended, and judged. Secondary rules are rules that are based on fundamental
rules. The heart of the legal system is made up of main and secondary regulations. The principle
of justice, often known as the rule of recognition, is the fundamental norm that holds the whole
legal system together.

The Problem of Penumbra according to Professor Hart: -

Hart recognises the issue that may arise as a result of a lack of accuracy in the terms employed in
the wording of the legislation, which he refers to as the law's core. Not every situation will fall
squarely within the scope of the legislation. Standard uses of the words may not always be adequate
to give the legislation due to effect. Professor Hart refers to these as penumbra issues. It is thus
important to determine the meaning of terms in legislation before applying legal principles to the
circumstances of the case. Hart feels that the penumbra's issues may be readily resolved by judicial
interpretation. Hart discusses the required junction of law and morals in order to solve the
challenges of the penumbra. When a moral judgement is made about what the law should be, and
in such situations, morality can be an influential factor in resolving cases in the penumbra, the
criterion that renders a decision sound in such scenarios is when a moral judgement is made about
what the law ought to be3

This problem of penumbra is highlighted with a case study that Hart himself employed. A car is
not authorised to enter a park by law. A bicycle is now parked at the park. For parking the bicycle
in the park, a police officer issued a penalty. When this case went to court, the judge had to decide
whether a bicycle could be considered a vehicle or not. The goal of this regulation was to keep
motorised vehicles out of the park in order to reduce pollution. "Bicycle ought not to be included
in the definition of a vehicle," the judge says because he understands the law's intent. Fuller
depicted this as the ideal example of 'what ought to be' by appealing to some external cause, while

3 HLA Hart, “Positivism and the separation of law and morals”, [1958] Vol 71, no. 4, Harvard Law Review at p. 593-
629

5
Hart said that this conclusion was drawn from the legal system's overall "Categorisation and
Harmonisation."

Professor Fuller's perspective on Law and Morality: -

Professor Fuller defines law as a method of attaining societal order via the application of rules to
human conduct. It is the process of putting rules in place to guide human behaviour. Our legal
procedures, according to Fuller, are based on justice principles that include a moral component.
The methods enshrined in a legal system are ethically significant in assessing whether or not a set
of laws qualifies as a legal system. He argues that law must pass a moral functional test before it
can be termed a law in the genuine sense. A rule or combination of rules that do not adhere to this
function is not considered law.4

Fuller divides morality into two types of components while presenting the notion. "Morality of
aspiration" and "morality of obligation" are two sets of morality. Aspirational morality refers to a
desirable standard of human behaviour that promotes the individual's best interests. The morality
of duty outlines the rules that humans obey at a specific time and location in order to keep society
running smoothly.

Fuller divides moralities into two categories: "external morality of law" and "internal morality of
law." The method involved in producing law is concerned with the internal morality of law. The
internal morality of law can be described as a morality of desire rather than a morality of obligation.
External morality of law refers to the substantive legal standards that are used in decision-making5.

Fuller opposes the positivist view of the law. He wants lawmakers to recognise that there are
alternative options for achieving society's goals than depending just on the law. He argues that if
legislators recognise this, they will be able to effectively employ legislation as a tool to manage
our society. According to Fuller, not all mandates with the capacity to force obedience may be
recognised as law.

4
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
5
Ibid

6
Fuller establishes Eight requirements, stating that an idea must be assessed against these standards
in order to be accepted as law: -

1. The theory must be stated in such a way that it may be applied universally.
2. Laws must always be proclaimed, that is, they must be conveyed to the individuals who
are affected by them.
3. Newly created legal ideas should always be used prospectively. Only in exceptional
instances, based on external conditions, should legislation be applied retrospectively.
4. The legislation needs to be clear.
5. There should be no contradicting demands in the law.
6. Laws should not impose unattainable standards of behaviour on individuals.
7. According to Fuller, abiding by previously proclaimed standards, i.e. stare decisis, is
beneficial since persons are protected from the changes that would otherwise occur if laws
were frequently changed.
8. According to Fuller, in order for a law to achieve its goals, it must meet the standards of
"congruence," which he defines as conformance with specified norms and individual acts.

According to Fuller, legislators should evaluate each of the eight factors when deciding whether
or not legislation is legal. Despite the fact that Fuller is a natural law philosopher, he does not think
that some principles can be traced back to the commands of a superior being and hence are
universally valid laws that regulate the human activity, unlike other natural law philosophers.
According to Fuller, the law has a terrestrial genesis and application. Man creates law to meet the
necessities of humanity. As a result, a law must have a unified aim in order to regulate human
conduct in order to achieve society's goals.6

Fuller challenges whether substantive legal norms may be neutral, that is, free of any moral
implications. And he responds in the negative. He claims that substantive regulations must be
moral in order to advance humanity's goals. (External morality) A rule should be flexible enough
to adapt to humanity's changing nature. And it can only be done if the nature of man is taken into

6Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd, 2000 at p. 95-118 &
187-225

7
account. According to Fuller, the law should be utilised to bring people together for the common
good.

The Hart-Fuller dispute on Morality and Law: -

The Hart-Fuller debate exemplifies the conflict between positivism and natural law, particularly
in light of Nazi policies. After witnessing the atrocities perpetrated by the Nazi regime on the Jews
under the Nazi Laws, Gustav Radbruch, a Jew by birth and a firm believer in the positivist doctrine,
changed his mind and became a staunch supporter of natural law theory, encouraging everyone to
abandon the doctrine of laws and morals. This encouraged Hart to start a conversation on law and
morality. In April 1957, he presented the Holmes lecture "Positivism on the Separation of Law
and Morals," which was published in the Harvard Law Review in 1958. Fuller responded in his
paper "Positivism and Fidelity to Law: A Reply to Professor Hart," which was also published in
the Harvard Law Review in 1958. This was the start of the heated dispute that ensued between
them. 7

As a rebuttal to Fuller's work, Hart wrote "The Concept of Law" in 1961. In 1964, Fuller responded
by releasing "The Morality of Law." In response to Hart's assessment of Fuller's book in the
Harvard Law Review in 1965, Fuller responded by publishing the Second (Revised) version of his
book "The Morality of Law" in 1969, which included a chapter dedicated to responding to his
detractors.

This debate between Hart and Fuller sprang from ideological differences. While positivism says
that all that is necessary for a law to be legitimate is that it be issued by a competent legislator after
following the specified procedure, natural law theory holds that there are some ideal principles or
ideals to which the law must conform if it is to be considered authentic.

The current conflict between law and morals can be better understood by looking into a case known
as the Grudge Informer case. Prof Hart and Fuller both spoke about the matter in detail. According
to the facts of the case, a German woman denounced her husband to the Gestapo for opposing

7 Justice Markandey Katju, „The Hart Fuller Debate‟, [2001] Vol 1, Web journal available at
http://www.ebcindia.com/lawyer/articles/496_1.html

8
Hitler's war strategy. The husband was found guilty and condemned to death, but his sentence was
eventually commuted to military duty on the Russian front. The husband survived the war and
began legal actions against the wife thereafter.8

In her defence, the woman claimed that she had reported her husband because he had committed
an offence under Nazi legislation from 1934. The Enabling Act of July 12, 1934, voted by the
German Reichstag, established the underlying premise of Nazi legislation by amending the
German Constitution to allow Hitler to make decrees that were contradictory with it. It claimed
that Hitler's legislation and will were one and the same.

The German courts were presented with a difficult situation. On the one hand, there was a moral
obligation to follow the law. On the other hand, people had a moral obligation to do what they
believed was just and decent. Then there was the issue of restoring faith in the rule of law and
justice. They agreed that declaring all of the Nazi regime's laws, as well as citizens' activities in
accordance with those laws, unlawful would result in utter social disintegration. However, they
believed that certain of the Nazi system's regulations were so revolting to human values that it was
necessary to disapprove activities conducted in accordance with such laws in order to persuade the
public that the new regime did not support such warped laws.

In light of the facts of the case, Hart contended that the Court's ruling was incorrect since no matter
how heinous and horrific the Nazi laws were, they were legal laws because they were enacted in
line with the Reichstag's Enabling Act. Hart's rule of recognition was met. According to Hart, the
courts were left with only two options to preserve the integrity of the judicial decisions: either let
the wife go free because the statute protected her, or pass retroactive legislation repealing the
statute under which she claimed protection and declaring the acts of perpetrators of such atrocities
as criminal. Even though Hart was not a fan of criminal statutes being applied retroactively, he
argued that Hitler's rule may have been regarded as an unusual situation for retrospective
application of laws if the courts were concerned that Hitler's collaborators would walk free. Hart

8 ibid

9
chastised the Court for introducing the idea of morality and concluding that the provision under
which she sought protection was in fact unconstitutional. 9

Fuller approved the Court's decision because it fosters respect for both law and morality by making
illegal legislation illegal and therefore obtaining a high level of adherence to the law. According
to Fuller, all Nazi laws were nonlaws. He said that the Nazi dictatorship was so anti-moral that
there was nothing in the system that could be classified as a law. He said that the Nazi laws lacked
the inherent morality necessary in the legislative process, which gives legislation respect and
makes them mandatory to follow. Fuller argued that until Nazi laws were recognised as non-laws,
perpetrators of Nazi-era atrocities would go unpunished.

When Hart submits to a minimal substance of natural law, such as human fragility, near equality,
limited resources, limited generosity, and limited understanding and strength of volition, he has
been attacked for becoming inconsistent. Hart's rule of recognition necessitates a minimum level
of legal morality. In every legal system, impartiality in the implementation of a rule is a moral
need10. Fuller believes Hart is conscious of his own personal morality, but that he refers to it as
justice in the application of laws.

Hart uses a hypothetical instance to support his claims that morality is not always required or
significant when it comes to the implementation of the rule of law. Assume that a legal regulation
prohibits the use of a car in the park but does not specify what sort of vehicle is prohibited. A
literal interpretation of the phrase vehicle would indicate that automobiles are not permitted in the
park. Would bicycles, roller skates, toy autos, and aircraft count as vehicles if there was no clear
definition of the term? And, if so, would the prohibition rule apply to them as well? Legal norms
have a well-defined meaning, which Hart refers to as the "hardcore" of typical cases. However,
there are times when courts must interpret the phrases because the statute's established definitions
do not suit the purpose or appear to be outmoded. Hart refers to the difficulties of the penumbra as
those that originate beyond the hardcore of regular situations. Penumbra issues can be resolved by

9
Stephanie Patron, “The Inner morality of law- An analysis of Lon L Fuller’s Theory‟, [2014], Glasgow University
Law Society Law Review, available at http://www.gulawreview.org/entries/legal-theory/the-
%E2%80%98innermorality-of-law%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theory
10
Supra note 1

10
judicial interpretation. It necessitates some sort of junction between laws and morality, because
the issues of laws and morals cannot be handled just via logical reasoning, and one must evaluate
what the rule is in relation to what the law ought to be. Hart tries to distinguish between the
application of a rule at the rule's core and the hard cases at the rule's periphery, which he calls the
Penumbra. People, according to Hart, frequently mistake the penumbra's litigation difficulties with
the core's functioning of law. The relationship between what the law is and what the law should
be in the penumbra, according to Hart, does not portray how the law truly operates at the core. 11

By providing a counter-illustration, Fuller disputed Hart's theory of a language-determined core of

legal norms. Assume a bunch of patriots decided to create a war memorial by climbing a plinth on
a military truck. Would the military truck be considered a vehicle in this case, and would the
prohibition rule apply to it? Fuller argued that it was impossible to decide whether the truck
qualified to be classified as a vehicle under this regulation without first examining the rule's
objective. By using this illustration, Fuller was attempting to demonstrate that it was impossible
to determine whether a rule applied in a given situation without first comprehending the rule's
intended purpose, which he accomplished by referring to the objectives of entire provisions of law
rather than attempting to decipher individual words. Fuller underlines that faithfulness to the law
can only be attained if the law is consistent with morality at all phases, whether at the time of its
creation (core) or when it is applied by the court (penumbra of law). People will obey the law only
if they believe it is founded on solid moral principles and implemented for the general benefit. 12

Fuller also attacks Hart's concept of law, which insists on separating law from morality. Fuller
claims that there is no such thing as a precise definition of law. Morality, too, is difficult to define
accurately. As a result, Fuller contends that arguing that law and morality are distinct is fruitless
due to the lack of a definite definition for each.13

11
Frederick Schauer, “A critical guide to vehicles in the park”, [2008] Vol 83, New York University Law Review at
p. 1109- 1134
12
Tommaso Pavone, „A Critical adjudication of the Fuller- Hart debate', available at
https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_review.pdf
13
Supra note 5

11
 Critical Analysis of this Hart and Fuller Debate: -
Prof. Fuller is correct in criticising the rigid positivist approach, given the atrocities done under
the Nazi dictatorship. When Hart claims that his rule of recognition must include minimal moral
requirements, he admits to morality. Because they both lay forth desired conduct required of
human beings, law and morals have a lot in common. I believe that if legislation is to be accepted
by the public, it must adhere to the desired behaviour norm. Morals play a crucial role in
determining these norms. The writ of habeas corpus and what Fuller has written about procedural
natural law have a lot of similarities14. Similarly, the Supreme Court of the United States' approach
to the due process clause's procedural requirements is founded on Fuller's conception of law and
morality.15

Separating law and morals is also impossible in practice. As civilization grows, the notion of
morality evolves as well. To meet these developments, a new law is enacted. For example, the
16
practice of Sati was deemed immoral, and legislation prohibiting such acts was enacted.
Similarly, the giving and receiving of dowry17 were deemed immoral, and a law prohibiting such
practises was enacted. The judiciary's progressive decisions, which recognise the concepts of live-
in relationships18 and consensual sex among adults of the same sexes19, demonstrate how the courts
have interpreted the law in light of evolving societal norms in our society.

Conclusion: -
While Hart felt that there is no essential connection between a legal system and moral principles.
Fuller believed that the separation of law and morality was impossible. Both of them belonged to
opposing schools of thought and advocated their own views. They did agree, however, that an
unfair and immoral legal system would not be stable or long-lasting. Justice, which is based on
morality, is the goal of legal systems. Morality is the source of a government's legitimacy. If there

14
A writ requiring a person under arrest to be brought before a judge or a court, especially to secure the person’s
release unless lawful grounds are shown for their detention
15
Brought about by the 14th Amendment to the US Constitution
16
The Commission of Sati (Prevention) Act, 1987
17
The Dowry Prohibition Act, 1961
18
D. Velusamy v D. Patchaiammal, 2010 (10) SCC 469
19
Naz Foundation v Government of NCT of Delhi, 2009 (160) DLT 27

12
is no feeling of moral duty, the great mass of society will not follow the law's requirements.
Repression will be necessary for a regime that lacks morality and fairness. And as an oppressive
regime collapse, so does its system.

13
 Selected Bibliography: -

• Articles/ Journals: -
1) HLA Hart, „Positivism and the separation of law and morals‟, [1958] Vol 71, no. 4,
Harvard Law Review at p. 593-629
2) Frederick Schauer, „A critical guide to vehicles in the park‟, [2008] Vol 83, New York
University Law Review at p. 1109- 1134
3) 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
4) Steven Shavell, „ Law versus morality as regulators of conduct‟, [2002] Vol 4, no. 2,
American Journal and Economics review at p. 227-257

• Online Sources: -
1) Justice Markandey Katju, “The Hart Fuller Debate”, [2001] Vol 1, Web journal available
at http://www.ebc-india.com/lawyer/articles/496_1.html
2) Tommaso Pavone, „A Critical adjudication of the Fuller- Hart debate', available at
https://scholar.princeton.edu/sites/default/files/tpavone/files/fullerhart_debate_critical_re
view.pdf
3) Stephanie Patron, “The Inner morality of law- An analysis of Lon L Fuller’s Theory”,
[2014], Glasgow University Law Society Law Review, available at
http://www.gulawreview.org/entries/legal-theory/the-%E2%80%98inner-morality-
oflaw%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theory

• Books: -
1) HLA Hart, The Concept of Law, Revised edition, Oxford University Press Publications,
2002 at p. 185-200
2) Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd,
2000 at p. 95-118 & 187-225

14