Legal Theory: Hart-Fuller Debate - Essay Example

Legal Theory: Hart- Fuller debate Name: Institution: Course: Tutor: Date: Legal Theory: Hart- Fuller debate Fuller’s (1958) criticisms and explanations of the relationships existing between law and morals are right. His argument is precise since there is no statutory law that is right without having its relation to morals. Guido (2001) defined law as the total of policy and regulations with which people are organized (p. 2). To him, law is constructed by the people and exists for everyone. Hurt (1958) in his article used law to mean order that is uniquely different from common law. Hurt goes further to criticize the German Nazi law as lacking a basement for its legality. Besides, he points out clearly as to why using morals in legislative law leads to a weak legislative system. Fuller in his analysis of Hart’s views asserts that as much as law in itself may be compromised by morals, it is essential to accept that every legal social structure needs to be regulated. A community finds a legal structure fit for them when these official guidelines have concepts that incorporate their traditions. Kozier et. al (2004) delineates morality as the prerequisite essential for people to live together within the society (p. 360). Fuller claims that law matching up to the requirements of ethics or integrity of man’ notions, is good law (p. 417). Besides, Fuller brings out the relationship between order and morals by providing an example of a king who in many a time gives rulings that proved different from the norm. In this case, morals are the basis which man uses to make written law. This is because, unwritten law can be easily manipulated and many would not follow it to the latter. Hart recognizes that morals are part of human formation of law by accepting that law is law when a soldier in Hitler’s army was sentenced to death. However, he again loses track when he dismisses the German court’s decision for prosecuting this soldier’s wife. His argument is that even though this woman was wrong, the law had no obligation to use morals to convict this woman. In contradicting Hart, any judicial ruling that does not use moral order becomes obsolete and anarchy arises in such communities. For instance, if a political leader commits fraud and there is evidence of no proper project done, courts might declare this man free. The community affected will strike for the absence of justice and they have no confidence in such legal system. Rider and Hartley (1988) write that there are two sources of law (p. 139- 140). One is statutory law that is enacted by governmental bodies such as county or states legislatures. These are the laws that are used in the courts and provide a guide for people in a state. Common law is the second one and comes from the everyday use of tradition and legal decisions. Local governments have use of both statutory and common law. Rider and Hartley go further to say that general laws are liquid and cannot be precisely defined. For example, there are no statutory laws dictating that nurses cannot leave a seriously ill patient. This happens when the nurse assures that someone else will provide the care. Nonetheless, common practice and traditions require this of the nurse without which there is standard violation of common law. This example is intricately related to the woman who reported her husband to the Nazis. Hart did not take into consideration that morals guide the inner man’s motives but laws provide the external direction which people must live with in society. Even though there are no precise explanations, laws and morals are intricately related. This is according to professor Basavanthappa (2004) who goes further to say that laws stand broadly on the moral principles of a particular social order (p. 533). He gives dissimilarity that exists between law and morals. Firstly, morality controls majorly internal conduct while laws direct external human behaviors and relationships. This first difference that Basavanthappa provides is related to what Fuller describes as morals guiding the inner self of man and laws providing direction externally. Secondly, morality is variable while laws are general. Morality varies from community to community and from one political affiliation to another. Besides, laws are studied under jurisprudence but morality is studied under ethics. Laws are written down and can be reviewed from time to time when need arises. Lastly, laws are supported by coercive state powers but morals are sustained by judgment of the public and personality principles. When one breaks laws, he or she is bound by law to undergo punishment. This person can live within a society without feeling alienated. Conversely, when one breaks moral rules, such a person finds it very challenging to fit in the community. This is among the reasons why Fuller emphasized that morals must be incorporated in legal systems. Even though Fuller did not clearly point out the relationship between laws and morals, he used precise illustrations of how these two are dependent on one another. Dubois (2008) in his article on whether anesthesia is inherently wrong disagrees with two professors allegations that statutory laws are wrong. He draws conclusions on the fact that when we rely too much on moral laws, there is development of subjectivity to law. In such instances, one is bound by ethical totalitarianism that is more restricting in nature. Hart is driven by positivism that law must be supreme and unique when practiced without incorporating morals. This view of Hart is what Fuller disagrees with dotting that as much as we need written laws, it cannot be comprehensive in the management of arbitrations. Besides, Ralf (2011) a professor of law in his article on a Fuller’s concept of law beyond the state, adds to what he thinks Fuller would contribute more to the jurisprudence of international laws. He concludes by asking as to whether the decree created by transnational regimes to solve disputes is not of a primary separate nature than the laws we find in nations which is subject to different criteria of legality. Ralf’s main concept is to query the jurisprudence of international laws on the grounds whether it considers normative eminence or not. The views of Ralf and Dubois are almost same as those of Fuller. This is because the three of them agree that neither absolute law nor morals can exist on their own. They depend on each other and it is appropriate that every state understand that they need to have morals and statutory laws coordinating. The idea of having international court decisions considering moral as well as legal factors is essential. Law morally is not risky, or it may be in several instances. Wilkinson (2010) writes in his article on whether law is morally risky, that every regime or government using the official central laws has problems. He continues to say that the main problem of these regimes is lack of morality in their rulings. This is another fact that Hart failed to note despite being able to provide a good example of German law. Besides, Wilkinson goes further to disagree with Hart’s concept that lawful order is sustainable on the basis of its bureaucrat acceptance. He considers Hart’s views as mistaken on the basis of natural law of which controls every human being. Hart does accept the concept of morality but does accept that it has significance in law. Fuller writes in his article that law brings order which man is in charge of formulatings in his society (p. 418). He proceeds to argue that law cannot be founded on law but that it requires moral attitudes as its foundation so that those who it is meant for feel there is security and fairness. Just as Fuller criticizes Hart, Cristobal (2004) in his article scrutinizes H. L. A. Hart’s key literature on orthodox natural law theory. Cristobal points out after examining Hart’s literature that Hart did not understand the concepts in natural law theory. This misunderstanding Hart had is one that makes him not be able to bring out the relationships between law and ethics (morals). Therefore it would not be wrong to accept that Lon Fuller is right to say that morals and law are intricately related. Fuller’s example of a monarch giving orders with no structured format shows how morals affect human judgments’. This is the same effect that morals have on legislative committees that usually sit down to make law. Hart’s misconception arises from his lack of understanding natural law theory as its pillars. In addition to supporting Fuller’s views and understanding of law and morals, let us look at Roberts (2011) article- inquiry as to whether article VI of the European Convention on rights of man need rational outcomes in trial of criminals. Professor Paul revisits a contentious issue on how if possible; article 6 of the European Convention can make rulings that do not threaten rights of man. He later on deduces that the Grand Chamber jury’s judgments’ enclose comments and propositions that can be interpreted to be more of risky in the long term. With this he suggests that the future of universal law jury as it is contemporarily is compromised. Robert and Fuller agree on the fact that relying only on law leads to anarchy and totalitarianism. They thus postulate the concept that laws must have some features of morals in them for them to be socially acceptable. Even though Hart did not understand classical theory of common law, he at some extent recognized that morals play a role in society as a form of arbitration. In examining the role that vision plays in morality, in an article titled ‘On the Role of Vision in morality’, Robbins (1977) analyses Professor Hauerwas’s essay entitled ‘Vision and Virtue’. Robbins concludes that positivism to moral law is more restrictive and does not account properly for the Christian way of life. As a contrary approach, Hart advocates for positivism and disconnection of morals from law. Christian morality is more binding and rigid than even normal norms. Fuller states that justice is problematic without order and that we must not fix ourselves to lose order while in search of good order. One of traditional structures of which morals are envisaged is in religion. Every religion has its own doctrines and values. Kaihara (2009) discusses political ideas of conservationists in his article on recent conservative thoughts in Japan. He focuses majorly on unadventurous analysis of morality, the past and societal issues. Kaihara (2009) notes that Japan is degenerating and there will be no people to take on after them in terms of national and societal development. He found out that the youth are considered by the conservationists as deteriorating in the social structure. This young generation is involved in atrocious childish crimes and performs poorly academically. The cause of this as viewed by the elderly was a lack of the will to know right from wrong. They believed that morality can only be achieved when their whole society gripped tradition and understood history. The rot in societal values is what made the woman in Hart’s example betray her husband despite whatever her husband said being in some degree a violation of Hitler’s army ethics. The same way that good behavior is modeled by morals is in the same way that morals ought to model law. In a different article, a scholar Shavell (2002) examines law versus morality. He assesses how these two instruments of social control are or ought to be used together. In his conclusion, there is a coarse association between law and morals. This is because morality is strict for those who misappropriate it with bad conducts. Law on the other hand is binding and directive to an extent that one will not be endorsed if they disobey legal rules. Shavell (2002) argues although it is necessary to use of law and morals together, it is not actually possible as law takes precedence in many times. This might have been what Hart thought about that leads him to advocate for his thought of positivism and the severance of law and integrity. Through Shavell’s writing, he accepts there is need for law and morals to incorporate. Although at the same time he shows that one should be used since the courts and the people are having different thoughts on grounds of their rulings in relation to matters of illegality. Fuller on the other hand shows how important it is to make rulings that have a moral basis. He does this by giving us a principle that is it right to kill by law, an act that is morally wrong. Whatever the perspective, Fuller has, the true essence of relationships between law and morals notwithstanding, he was not properly able to bring out all the correlations. Another scholar, Honore (2002) supports Fuller’s views about positivism and morality. In his article on the necessary connection between law and morality, he concludes that law is morally indefensible but struggles within its legal system to be morally defensible. He views critical morality as a persuasive source of law necessary for a society. To Honore and Fuller, positivism should be interpreted as law that conforms to communally received norms. Law does not formulate itself but relies on reasons as to why it must be formulated. This aspect might be the perspective why Honore (2002), holds that law morally has no its own defense. Besides, Moore (2007) writes in an article, four reflections of morality and law, examining the relationship between morality and contemporary law and whether morality should be part of law. In his attempt to help explain relations between law and morality, and morality and contemporary law and its issues, he notes that judges make people do what they do not want in cases to which require justifications. Moore concludes by accepting that law is history in itself and stressing that morality in law is what proves law to be of value to our interests and intelligence. He complains of law being a labyrinth that if he were anyone else, doing it was the last option. While examining his literature, Moore (2007) criticizes Hart for accusing American jury for being fixated by judicial conduct. In contrasting Hart, he views that in order for law to be related to morality, it is best understood when the judiciary follows their obligations. He then asks how judges should be morally obligated by their roles. It is this concept that brings the discrete bond between law and morality because all the rulings judges make must have a moral basis. When we analyze Fuller’s writing on positivism and fidelity to law, we find that he sees the need for any judicial system to employ morality in there rulings no matter the case. When a judge does not apply moral- law, the ruling will have lots of rejections from society. Lacey (2008) tries to accord Hart confidence. However, she concludes by asking what can needs to be done to law to make it good order which can tame political power, and apply morality in this evil convoluted world. She writes that explicit law is not free from criticism. Fuller in ‘Positivism and Fidelity to Law’ also asserts that law must be subjected to scrutiny and criticisms on the basis of morality for it to prove of importance to a society. Despite all the support Fuller has, Kramer (1998) provides a critique of Fuller and his supporters. Kramer in his article gives a limitation of the efforts of Fuller and his defense on the concept of reciprocity within a judicial system. He writes that as much as Hart’s supporters have written, they have no precise explanation why reciprocity is necessary in law. Kramer’s arguments criticizing Hart are baseless since it is evident that many legal systems in the world have adopted the concept of reciprocity within their judicial systems. The basic distinctiveness of law must be its notion of value acceptance. Another scholar, Bulgyin (2000) analyzes critically Robert’s (1989) article on the necessary relations between law and morality. Eugenio disagrees with Alexy for saying that every legal system must fulfill the claim and legal norms. He gives an example of a woman claiming to be beautiful but in essence she is not beautiful. With this example, Eugenio tries to render Alexy’s arguments unfounded on based on the observation that when one makes a claim, he or she is right. He is in a different dimension pulling off the veil from Fuller and his supporters. Bulgyin (2000) is not wrong in his views when we consider his demonstration of a lady claiming to be beautiful, yet she is ugly. He even goes ahead to disqualify the use of the term “necessary” by Alexy. He describes that using this term implies that it is true there is a relationship between morality and law yet there is none. Without relying on Fuller- Hart arguments, law is based on morals that man requires to organize himself in institutions. However, there is a primary relationship between obligatory and necessary laws. Obeying the law is necessary and behaving morally is also necessary. Morals are traditions that before man created good order, was and is still being used to create arbitration in societies. This essay gives credit to Fuller’s views on the existence of a relationship between law and morals. References Basavanthappa, B. T. (2004). Fundamentals of nursing. New Delhi: Jaypee Brothers Medical Publications (P) Limited. p 533. Bulygin, E. (2000). Alexy’s thesis of the necessary connection between law and morality. Ratio Juridica, 13 (2), 133- 137. Retrieved from www.filosofiajuridica.com.br/arquivo/arquivo_48.pdf Dubois, J. M. (2008). Is anesthesia intrinsically wrong? On moral absolutes and natural law methodology. The Journal of Christian Bioethics, Inc. Oxford Journals Online, 14 (2), 206- 216. Fuller, L. L. (1958). Positivism and fidelity to law- A reply to Professor Hart. Harvard Law Review, 71, 630 Guido, G. W. (2001). Legal and ethical issues in nursing. Upper Saddle River, New Jersey; Prentice Hall. 3rd ed. p 2. Hart, H. L. A. (1963). LawlLiberty and morality. Oxford: Oxford University Press. Hart, H. L. A. (1958). Positivism and the seperation of law and morals. Harvard law Review, 71, 529-593 Honore, T. (2002). The necessary connection between law and morality. Oxford Journal of Legal Studies, 22 (3), 489- 495 Janice, R. E. and Hartley, C. L. (1988). Nursing in today’s world: Challenges, issues, and trends. Pennsylvania, Philadelphia: J. B. Lippincott Company. 3rd ed. p 139- 140. Kaihara, H. (2008). Contemporary conservative thoughts in Japan: Conservative views on morality, history, and social issues. International Relations of the Asia- Pacific, 9 (2), 339- 364. Kozier, B., Erb, G., Berman, A., & Snyder, J. S. (2004). Fundamentals of nursing. Concepts, process, and practice. Upper Saddle River, New Jersey: Prentice Hall. 6th ed. p 360. Kramer, M. (1998). Scrupulousness without scruples: A critique of Lon Fuller and his defenders. Oxford Journal of Legal Studies, 18 (2), 235. Lacey, N. (2008). Philosophy, political morality and history: Explaining the enduring resonance of the Hart- Fuller debate. New York University Law Review, 83. Lon, F. (1969). The Morality of Law. Yale Moore, S. M. (2007). Four reflections on law and morality. William and Mary Law Review, 48 (5) (2) Orrego, C. (2004). H. L. A. Hart’s understanding of classical natural law theory. Oxford Journal of Legal Studies, 24 (2), 287-302 Ralf, M. (2011). A Fuller concept of law beyond the state? Thoughts on Lon Fuller’s contributions to the jurisprudence of transnational dispute resolution- A reply to Thomas Schultz. Journal of International Dispute Settlement, 2 (2), 417- 426. Robbins, W. J. (1977). On the role of vision in morality. Journal of American Academy of Religion. XLV (2), 224. Shavell, S. (2002). Law versus morality as regulators of conduct. American Law Economics Review, Oxford Journals, 4 (2), 227-257 Wilkinson, A. M. (2010). Is law morally risky? Alienation, acceptance and Hart’s concept of law. Oxford Journal of Legal Studies, 30 (3), 441-466. Read More