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Meet the Theories
Lon Fuller believed in naturalism, which can be summarized as being God’s law. Morality and the law are intertwined, and a law cannot truly be a law unless morality is involved (Fuller, 1958, pp. 636-637). He strongly believed in fidelity to the law as if laws are moral people will have a loyalty to obey them in comparison to if laws had no morals attached (Fuller, 1958, p. 632). Hart believed in positivism where he conjured a separation thesis to argue law and morality are separate (Hart, 1958, p. 594). Much of Hart’s work focuses on differing “law as is from law that ought to be” (Hart, 1958, p. 594). Fuller would argue that positivism lacks clarity and it can be harmful to a legal system if it is followed because moral principles are being overlooked (Fuller, 1958, p. 631). The only thing both theorists seem to agree upon within their theories is that a full loss in fidelity to the law would result in a break down of the legal system (Fuller, 1958, pp. 630-631).
Fidelity to Law
An argument that Fuller pries himself on throughout his paper is fidelity to the law. This is an argument that Fuller and Hart are not in agreement with. Fidelity to the law refers to a person’s loyalty to following the law (Fuller, 1958, p. 632). He understands we view the law as something different in comparison to laws of science that we have no control over, but he thinks law gives us guidance even if we might find some laws to be ridiculous (Fuller, 1958, p. 632). When laws are found to be in a sense invalid, people continue to follow them anyway until the law states otherwise (Fuller, 1958, p. 632). A constitution informs people of the law as written rules, which are, accepted as good law and can be amended if they are found to be invalid (Fuller, 1958, p. 642). For instance, the laws during Hitler’s ruling were found to be immoral when his reign ended so they were removed as law.
Hart’s counter argument would be other matters are of higher concern than fidelity to law (Fuller, 1958, p. 633). For instance, with the Nazi laws it was more important for people to obey them even if they found them unjust than to disobey them. Supreme courts also diminish fidelity to the law because they are restricted by a constitution when making their decisions (Hart, 1958, p. 599). The Supreme Court being restricted by a constitution ensures the protection of the citizens. If the people obeyed the Nazi laws and carried them out even if they found them to be evil, would that not mean they did not abandon their fidelity to law since they were following the laws laid out at that time? How could Hart judge their loyalty to the law if at that time they were in fact loyal to the law by following the Nazi law put out. If he is saying that they were not loyal to the law because Nazi law was not true law at that time then it goes against his later argument that Nazi laws were valid at the time and people should not be punished (Fuller, 1958, p. 649).
The Core and Penumbra
Fuller views Hart’s argument regarding the core and penumbra as inadequate. He argues that there is no point in defining the terms as judges may misinterpret any indeterminacy within the law (Fuller, 1958, 647). Fuller also identifies that Hart believes judges interpretation for cases within the penumbra rely on one word needed to be interpreted (Fuller, 1958, p. 662). This is not the case as there is a context within which the word needs to be interpreted otherwise the wrong meaning of the word could be applied (Fuller, 1958, p. 662). Fuller goes on to test Hart’s one-word interpretation theory because he says if we abandon the core and penumbra then there cannot be fidelity to the law. Fuller concludes that you cannot define a word without knowing the purpose of the statute and with this perhaps Hart does not grasp the concept of language (Fuller, 1958, p. 668).
Hart’s counter argument is the core is everything in law that is defined and the penumbra is the uncertainty that lawmakers did not think of (Hart, 1958, 607). There are many cases that are not defined. Judges should not have to go outside the law to make a decision but rather judges should use their discretion to find the appropriate fit for the case (Hart, 1958, p. 613). In Hart’s view there are no hard cases. However, this is not the case, as many people would argue judges do go outside the law to make decisions because the law does not update, and it does not account for everything that could go wrong in society, as it is not a formula. Judges are given laws, which are the guidelines for their decisions, but ultimately judges are people with a biased opinion. They are not robots without feelings handing out decisions. When there is indeterminacy, judges use their discretion (Hart, 1958, p. 613). This said to be legally limited, but they still use their own opinion, so how is that not judges reaching outside of the law? Hart would also say when laws become evil they cease to be law (Fuller, 1958, p. 660). Hart would then use retroactive statute (Fuller, 1958, p. 649). Whereas, Fuller would say they are still laws, but they are so evil that we will refuse to apply them (Fuller, 1958, p. 655).
Fuller argued that Hart was flawed in rejecting command theory. He willfully admits that there is problems with the theory, which Hart addresses better than Fuller ever could (Fuller, 1958, p. 639). However, Fuller does not believe command theory should be discarded for the rule of recognition. The rule of recognition is a validity test for laws (Hart, 1958, p. 627). Command theory has to exist to an extent otherwise why would people follow these laws if they were not morally sound (Fuller, 1958, p. 649)? If there was not a sanction for murder many people would still choose not to murder because it is wrong. However, if morality were not attached to law then why would people follow drug laws if they were not going to be punished? A law must be backed by a sanction in order for it to be followed. Receiving a punishment deters society from participating in activities that are considered illegal.
Hart would argue against Fuller that if he believes morality and law are connected then would people not be morally obligated to follow the law so why would naturalist convey command theory anymore than positivists (Hart, 1958, p. 623)? Fuller would argue that God is the ruler giving the commands we as people are morally obligated to obey (Fuller, 1958, p. 645). Some people do not believe in God and need the extra incentive to follow the rules with sanctions. People are likely to follow laws without question if they see everyone else following the laws that way. However, if people see other people not following the laws then they are likely to join them because if there is a large enough group they believe they cannot receive a sanction for their actions even though they might be morally wrong. Hart would argue that they should be punished under retrospective legislation (Hart, 1958, p. 619). In the case of the woman that betrayed her husband in order to get rid of him, she would have to be pursued under retrospective law only if she had intent (Hart, 1958, p. 619). This is because even though retrospective criminal legislation would have been unpleasant to apply in this situation it still would have been more reasonable to apply if she acted immoral purposefully (Hart, 1958, p. 619).
It is for these reasons that I believe Fuller won the debate.
Read their papers for yourself and you decide who won:
Fuller, L. (1958). Positivism and Fidelity to Law: A Reply to Professor Hart. Harvard Law Review, 71(4), 630-672. doi:10.2307/1338226
Hart, H. (1958). Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), 593-629. doi:10.2307/1338225