Positivism or Naturalism? Hart v Fuller

Positivists believe in ‘law as it is’ without pondering much over what it ‘ought to be’. They draw a distinction between law and morality and that former belongs to the realm of ‘is’ and the latter to the realm of ‘ought’. Naturalists, on the other hand, focus more on the content of the law and according to them, unjust or unreasonable law is no law. Philosophers on both sides have engaged in intense debate to justify what they believe to be true. The Hart-Fuller debate is one such famous manifestation. The context of this debate is the post-World War II scenario when humanity was shocked over the brutal Nazi atrocities on Jews. To be more specific, a woman was being prosecuted in 1949 for having informed the Nazi authorities that his husband had criticized Hitler. As per one of the Nazi law, certain criticism of Hitler was punishable by death sentence. In her defense, the women argued that she cannot be punished for following the law of the land of those times. The dilemma was whether Nazi laws were the law or not. If they were the law, then what is the rationale for punishing Nazis officials and citizens who merely followed albeit quite diligently the law enacted by the Nazi regime resulting in horrific atrocities for Jews. If they were not law so to say, then what about the status of millions of business transactions, contracts, marriages etc which happened during the Nazi regime? Are all of them are illegal?

According to Fuller, Nazi regime did not command the fidelity of the right thinking individuals on accounting of lacking the ‘inner morality of the law’ and hence it cannot be regarded as a legal system. By inner morality of law, he refers to the procedural framework of a law such as coherence, consistency, non-retrospectivity, justification etc. His solution to the above dilemma is the enactment of a new statute symbolizing a sharp-break from the pervert Nazi regime and giving it a retrospective effect to punish individuals guilty of facilitating the Nazi cause in the past.

Hart also advocates the use of retrospective law to meet the ends of justice in this case but he offers a different reason for doing so-a ‘more nearly lawful’ way of making something unlawful which once was the law. The reason for doing so is not necessarily morality but the requirement of fair procedures in a legal system and it’s justice delivery system which was missing in the Nazi laws.

So both Hart and Fuller reach the same conclusion in the instant case but by offering different justifications to support their claims. Rather than defining ‘morality’ in clear terms, they assume what other means by morality and compete with each other to show that their conception of a legal system is more just, fair and steered towards the advancement of goodness. But their conception of law and morality appears to be based only on the western notions of law and legal system. They both seem to be unaware of the oriental thoughts on this issue and in particular the ancient Indian, Chinese and Islamic jurisprudence on the issues of law, morality, justice, and fairness. Though ancient Indian or Chinese philosophies no longer exercise much influence, a fairly large number of the world population is still influenced and governed by Shariat or the Islamic law. Hence it becomes pertinent for modern scholars to have a more comparative attitude and approach while dealing with matters of law, morality and justice especially when the western legal concept of justice, equity and good conscience has been supposedly inspired by Islamic Law.

With Peace!


13 thoughts on “Positivism or Naturalism? Hart v Fuller

  1. This was a very interesting read! I have only come across retrospection in tax law and found it to be very unfair but I can see why it was applied in this instance. However, I would question the effectiveness of a judicial system that requires any form of retrospective law. All law develops over time but to make something unlawful that was once lawful and penalise people after the event seems terribly unfair..

    Liked by 1 person

  2. Thank u so much for your comment. You are absolutely right that retrospective laws seem unfair and both both Hart and Fuller agree on this point in someway. But in some cases it becomes a necessity to meet the ends of of justice as in the case of punishing Nazis for their crimes against humanity in the Nuremberg and Tokyo trials. But I agree that one must resort to retrospective laws only in exceptional circumstances like this.

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