Hart–Fuller debate

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The Hart–Fuller debate is an exchange between Lon Fuller and H. L. A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.

Nazi informer case[]

The debate discusses the verdict rendered by a decision of a post-war West German court on the following case :

"In 1944, defendant, desiring to get rid of her husband, reported to the authorities derogatory remarks he has made about Hitler while home on leave from the German army. Defendant wife having testified against him, the husband was sentenced to death by a military tribunal apparently pursuant to statutes making it illegal to assert or repeat any statements inimical to the welfare of the Third Reich. . . . However, after serving some time in prison, the husband was sent to the front. Following the defeat of the Nazi regime, the wife, as well as the judge who had sentenced her husband, was indicted under 4 289 of the German Criminal Code of 1871, for the unlawful deprivation of another’s liberty ( rechtswidrige Freiheitsberaubung ’). On appeal to a German Court of last resort in criminal cases, held, that the sentencing judge should be acquitted, but that the wife is guilty since she utilised out of free choice a Nazi ‘ law to the sound conscience and sense of justice of all decent human beings to bring about the death or imprisonment of her husband.

— Harvard Law Review, 1951, pp. 1005-7

Philosophy[]

Positivists believe in a separation between the law as it is and the law as it should be. Legal rights and moral rights are not related, beyond mere coincidence. Hart believes the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims. Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A "core" case would be one that the statute is intended to cover. In the classic example, a statute that bans vehicles from a park is obviously intended to cover cars. A "penumbra" case would be one not considered by the creators of the law, such as a skateboard in the example above. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words in the statute. The natural law view believes that the creation of law should be based on natural laws or common morals.

See also[]

References[]

  • Hart, H. L. A. (1958). "Positivism and the Separation of Law and Morals". Harvard Law Review. 71 (4): 593–629. doi:10.2307/1338225. JSTOR 1338225.
  • Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart". Harvard Law Review. 71 (4): 630–672. doi:10.2307/1338226. JSTOR 1338226.

External links[]


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