Introduction
As Roger Cotterrell states, ‘there is often a sense that in the battle of arguments no one ever wins, and further that there are no reliable criteria by which one could recognize victory anyway. The disputes seem timeless, the issues never resolved.’
There has been a long-standing debate between natural law theorists and legal positivists on whether morality intersects with the law or do they remain separable and so are mutually exclusive concepts. The quotation by Roger Cotterrell has best summarized the contention. It seems that the conflict from each opposing view from legal positivism and natural law is equally plausible and deriving a conclusion is nowhere near over the years of arguments. For legal positivists, the law is what ‘is’ and morality is what ‘ought to be’. Legal positivism maintains the ideology that there is a separation of law and morality and the legal system is a free-standing model. Its existence and validity does not necessarily have to be justified by some other conceptions beyond itself such as morality. On the contrary, natural law suggests that the law is based on something beyond the legal system and that is morality. For natural law theorists, morality is the principle that backs up the legal system and so morality and the law are inseparable.
Jurisprudence was enlivened in the second half of the 20th century when the problem of whether morality had a place in the law became real where unjust laws were enacted during the Nazi Holocaust in World War II. Hebert Hart and Lon Fuller were the two major figures representing legal positivism and natural law respectively in the era.
This essay is going to look at the main criticisms of legal positivism and Hart’s arguments to counter positivism’s critique. However, it is going to take the view that with Fuller’s response to Hart’s counter arguments in accompany with his theory of internal morality and as evidenced by the judgments from the post-World War II cases, it is proved that morality is inevitably contained in the law. This essay will conclude that while the concepts of the law and morality are not overlapping each other entirely, they are not mutually exclusive either. The law and morality are mutually inclusive as suggested by the philosophy of natural law.
The three common critiques of Legal Positivism
Hart in his journal ‘Positivism and the Separation of law and Morals’ addresses three critiques that are commonly argued by natural law theorists against legal positivists. The first is the claim that the positivist Austin’s theory of law as command is completely inadequate. Austin has proposed a definition of law that is wholly self-standing: the law is a command issued by the sovereign with a threat of sanction or punishment to which people are generally obedient. There are four concepts within the definition, the command, the sovereign, the sanction and the obedience. Austin says these four concepts are enough to enable people to understand the legal system and there is no place for morality to step in. The legal system is self-explanatory without the need of God or morality to be understood. Austin’s theory is subjected to pervasive criticism because it holds that the legal system is ubiquitously backed up by threat, however, in reality there are numerous kinds of law such as administrative laws and family laws that have nothing to do with a threat of sanction. Moreover, Austin’s concept of the sovereign is absolute, it ignores popular sovereignty, where in democracy the supreme power is resided in the people. Force is not the only substance behind the law because the will of the public is another in modern societies. Therefore, it is often criticised that the definition of law in Austin’s theory of law as command is inadequate and empirically inaccurate.
The second accusation commonly levelled against legal positivism is the problem of Penumbra. Penumbra refers to a shadow or a loom, and in Latin it means cloud. What the problem of Penumbra is saying is on occasions where it is unclear what a law means and when it requires further elaboration, the established meaning of the word or that of the definition found in a dictionary may be obsolete. Consequently, a judge will interpret what the word must mean to make the law sensible. A classic example will be the ‘no vehicles permitted in a park’ scenario. The law states that no vehicles are allowed in a park. No clear definition of ‘vehicles’ is given. A police charges a cyclist who cycles in a park. Technically, a bicycle is a vehicle, however, it ‘ought not to’ be covered under the meaning of a vehicle in the law as what the law must be referring are motor vehicles that will pollute the park. A judge will understand that the cyclist has not violated the law because a bicycle must not be what the law means. Natural law theorists such as Fuller argues on this point that judges are deriving what the law ‘is’ from what the law ‘ought to be’, and this deviates from the assertion of the separation of what ‘is’ and what ‘ought to be’ in legal positivism. The problem of Penumbra indicates that even positivist judges decide the meaning of what ‘is’ by what ‘ought to be’ and this shows an infiltration of value when interpreting a law, suggesting a connection between the law and morality.
Legal positivism faces a third challenge- morally bad laws. The best example is the Nazi regime in Germany where Hitler’s words became above all laws. The main feature of the regime included racism, in which millions of Jews and other races who were not in the branch of the Aryan race were murdered in the Holocaust. The existence of morally bad laws has posed a deep challenge with legal positivism. Natural law theorists argue that without a higher source of principles such as morality, how would an evil legal system such as the Nazi regime be condemned?
Hart’s counter argument to the criticism of Legal Positivism
To address the criticisms of Austin’s theory of law as command, Hart nuances Austin’s theory by inaugurating a distinction between primary and secondary rules. Hart’s primary rules are like the theory of law as command in Austinian sense. They are the rules of conduct that informs people their duty, obligation and prohibition while attaching consequences when there are breaches. An example of primary rules in modern societies will be criminal law. Criminal law identifies what actions a society regard as crimes and backs up the authority by incorporating sanctions to each illegal behavior. Hart also recognizes the existence of secondary rules in a legal system. Secondary rules are to govern the operation of primary rules and they may bind public officials. They include the rule of recognition, the rule of change and the rule of adjudication. The rule of recognition is an identifying test for legal validity within a legal system which helps to tell what counts as a law. It can be what is written in a book or what is said by a ruler. A constitution is an example of the rule of recognition in a society. The rule of change allows the law to be varied and it solves the rigidity of the law. The rule of adjudication solves legal disputes and allow a society to determine when a law is violated and to prescribe a remedy. Contract law rules that enables parties to form contracts and the rules that allow testators to write a will are all secondary rules. Hart from nuancing Austin’s theory of law as command through the inauguration of primary and secondary rules serves to rescue the basic principles of legal positivism from the critique that the definition of law in legal positivism is inadequate. Arguably, Hart has succeeded in providing a broader scope of the definition of law and has countered the criticism of Austin’s theory. However, it has not helped the notion of separation of the law and morality in legal positivism from being defeated by natural law that there is a connection between the law and morality with the breakthrough judgments in post-World War II cases. This will be explained further later.
In terms of the problem of the Penumbra, which suggests judges will appeal to reasoning beyond the legal system to derive what ‘is’ the law from what ‘ought’ the law mean and so deviating from legal positivism, Hart provides an alternative perspective to view the problem. Hart suggests that what ‘ought to’ mean is not to be understood as a moral sense but a rational legal framework. Judges are merely looking into the definition of the words within a statute. What ‘ought to’ mean is what ought to be read into the law. It is not appealing to anything outside the law but rather revisiting the words that comprise a settled core of meaning or the internal consistency of the law. It is an internal process of what ought to be based on categorization and harmonization of the total system of laws. Therefore, it is inaccurate to say that a correlation between the law and morality can be found when judges are deciding what ‘is’ from what ‘ought to be’. Hart has made a sound argument regarding the problem of Penumbra and maintains legal positivism as the ideology that morality and the law are separate, yet, it is not until his argument against morally bad laws that has shed some light that there is a sense of morality within legal positivism, and so defeating the very notion of separation of the law and morality in legal positivism.
There are two types of positivism, inclusionary and exclusionary positivism. While inclusionary positivism, sometimes called soft positivism, recognizes that it is possible to incorporate moral constraints on the content of law, exclusionary positivism or hard positivism denies the idea that moral considerations can be allowed within the legal system to validate the law. Hart’s positivism is inclusionary positivism because he allows certain influence of morality into the legal system. Hart agrees to a minimum content of natural law in the law to counter the criticism of morally bad laws, although he claims it is so minimum that is necessary to maintain the consistency of a legal system. Hart making use of soft positivism to counter morally bad laws suggest an infiltration of morality within legal positivism. Despite he maintains the legality of some laws that may offend the morals of a community is a different question, i.e. morality is not a necessity to the validity of the law in soft positivism, it remains a question why soft positivism is still classified as a positivism because the very notion of separation of law and morality is muddled.
Hart’s soft positivism can be illustrated by abortion laws in the United Kingdom. Section 1(1) of the Abortion Act sets out that a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith. Although abortion laws may be regarded as immoral as they allow some kinds of abortion to take place, its validity will not be undermined solely because of it immorality. Immorality itself will not invalidate Parliament’s enactment of a law and it will remain valid as long as it satisfies the rule of recognition.
However, in some countries, for example, the United States, the constitution (The Fourth Amendment) lays down moral tests in the form of fundamental rights and freedoms that every law must pass in order to be valid. This suggests that in some legal systems it is possible for a law to be enforceable because of its morality.
It may be possible for Hart to argue soft positivism does not equate to mean that morality is a necessity to the validity of the law and so successfully remain in the domain that morality is not necessary but contingent, however, it cannot help from showing that morality has had established a place in soft positivism. If morality has had a place in legal positivism, the notion of separation of morality and the law is no longer accurate. What is left with legal positivism is merely morality is not a necessity to validate a law. However, this can also mean that it does not deny morality can be used to explain some laws, such as the moral tests in the constitution of the United States. Soft positivism is just another way to admit that morality has an influence over the law and if that is so, morality and the law are mutually inclusive concepts.
Fuller’s account to Hart’s argument
While Lon. Fuller acknowledges the diversity of jurisprudential attitudes as exhibited in his fictional case of The Case of the Speluncean Explorers, as a natural law theorist, he maintains that there is a necessary connection between the law and morality. In the Speluncean Explorers case, he depicts himself as Judge Foster, who sets aside the conviction of the defendants who cannibalized another to save their lives in agreement while waiting for rescue. His reasoning explains the defendants were in a ‘state of nature’, so they were not to be bound by letter of the law in Newgarth. Fuller’s depicting himself as Judge Foster indicates his stance that he champions a belief in the necessity of law, morality and reason to coalesce to come to a ruling, so morality and the law are attached to one another. The assertion that the law and morality are not mutually exclusive are supported further by Fuller’s argument as illustrated below.
Fuller argues that Hart is moralizing the idea of morality of the natural law position and Hart actually accepts morality within the law but he just does not recognize it. Hart thought that natural law theorists are maintaining a connection between the law and morality to preserve precious moral principles. However, Fuller contends that what natural law theorists seek to preserve is instead a fidelity to law. Positivists seek to internally reconcile principles within the legal system and not look for a concept beyond the law and Fuller says this is a fidelity to law. Fuller challenges that the doctrine of fidelity to law is itself an idea beyond the legal system and is itself a value. The value does not come out from the law and so it is a concept outside of the legal system. This is the correlation between the law and morality within legal positivism just that legal positivists do not recognize. Therefore, there is no separation of the law and morality.
To underpin Fuller’s claim that there is some morality within legal positivism, he has made a distinction between internal morality and external morality. Internal morality is what people call, conscience. External morality is the moral suggestion that one must obey the law, indicating the conflation of legality and morality. One may question external morality that it is apparent not everything that is moral is legislated, for example, extramarital affair is immoral, but it is not prohibited by law, and not everything appears in the law has something to do with morality. An example will be the seat belts law that comes under the Highway Code in the United Kingdom- the law is requiring a person to wear a seatbelt when he or she is supposed to or a fine up to £500 will be implemented. Yet, not wearing a seatbelt is not in itself immoral. The law is put in place just for one’s safety. Fuller explains that what natural law theorists mean when they say there is a connection between the law and morality, they are pointing to internal morality instead. Fuller distinguishes internal morality (conscience) further as morality of aspiration and morality of duty. One will be praised for displaying morality of aspiration but will be condemned for violating morality of duty. Internal morality of law is sometimes called ‘the rule of law’. The law will still be law if failing some standard of aspirational morality but a law that fails the morality of duty is not law at all except in the Pickwickian sense. Fuller argues that Hart is aware of this internal morality as well, and he calls it as ‘justice in the administration of laws’ or the principles of natural justice. For natural justice to be done, a person cannot be both the accused and the judge in the same case. Another example will be that both the accused and the victim must be heard. It will violate the principles of natural justice if only the victim is heard or vice versa. Violation of principles of natural justice is intolerable even as conceived from a positivistic perspective and this indicates that legal positivists have a mandatory concern regarding justice. Fuller argues that recognising the principles of natural justice is a back-door entry of morality into legal positivism. So, there is a sense of morality in legal positivism. This point further supports that morality and the law are not separable in a sense that is suggested by positivists.
In response to Hart’s counter argument against Austin’s theory of law as command, Fuller noticed that Hart’s rule of recognition is like Austin’s ‘sovereign’ but without a sanction to command people to comply with. Fuller argues that the rule of recognition will only work if the legal rules are moral so that they will gain respect and deference because they are good law. In Fuller’s words, he expressed that “No written constitution can be self-executing. To be effective it requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of effort we give to moral principles in which we have an active belief. …to be effective a written constitution must be accepted, at least provisionally, not just as law, but as good law.” Although it may be argued by legal positivists that the compliance of legal rules does not necessarily need morality likewise in the rules of a game or a sports, for example, in a baseball game baseball players comply with the rules to run in a particular way to score, it seems that Fuller believes in a higher aspiration of law rather than the legal rules being just a set of rules. Fuller elaborated that further: “with Professor Hart’s paper… It is now explicitly acknowledged on both sides that one of the chief issues is how we can best define and serve the idea of fidelity to law. Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials. The respect we owe to human laws must surely be something different from the respect we accord to the law of gratification. If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can prove in principle even at a moment when it seems to us to miss its mark.” Therefore, for Fuller, the law is more than just a set of rules and it is worthy of compliance because of its moral nature and as a consequent, people obey the law with respect, loyalty and faith. This shows that morality is the necessary element that backs up the law for people to comply with them.
To reinforce the claim of the law and morality being mutually inclusive, this essay will look at what the history says about it. Post-World War II jurisprudence seems to suggest the victory of natural law over legal positivism, indicating an intersection and necessary connection of morality and the law. This essay will go through some of the cases, but they are not limited to only such.
The case of the ‘grudge informer’
‘Grudge informers’ is the terminology that is used to represent the batch of people who are brought to the court for trials after the end of the Second World War because they made use of oppressive Nazi legislations (which were valid during the Nazi regime) to satisfy their personal grudges. The grudge informers, despite not having any legal duty, reported to authorities that the people being informed had been violating the law such as making comments against the government so that they would be brought away and subjected to death penalty or serious punishment. Fuller recorded a case in his arguments and it was commonly referred as to ‘the informer case’. It was about a German woman who wished to get rid of her husband had denounced him to the authorities for making derogatory remarks about Hitler. This was against the law under anti-sedition regulations of 1934 and 1938 in the Nazi regime. The husband was prosecuted and convicted of slandering the Führer (leader). He was sentenced to death but was reprieved and was sent as a soldier to the Eastern front instead. He survived the war and on returning home when the Nazi regime dismantled, he instituted proceedings against his wife for unlawfully depriving his liberty under the 1871 German Criminal Code, paragraph 239. It was held that the wife could not claim protection from saying she was acting in accordance with the informer statutes. In the verdict, the allied judge explained that the statutes in the Nazi regime were contrary to sound conscience and all sense of justice for any decent human being. Therefore, she was convicted and there was no defence to say that she was just following the law.
For legal positivism, the law is what ‘is’ and one does not have an obligation to determine whether the law ‘ought to be’ what it ‘is’ when to obey it. The wife was obedient to the law which was a command issued by a sovereign under a threat of sanction. It would be impossible under the positivistic sense that she should be punished for following the law. However, the woman was held that she was convicted for what she had done. This judgment can only be explained with natural law theories. From the natural law perspective, one should not obey a morally bad law even it is not necessarily legally bad. The law may be inherently consistent with the legal system but it still should not be implemented when it is in contrary with moral principles. The woman should be bound by her conscience and internal morality beyond the legal system that she should not report to the authorities when her husband merely made a comment about the leader as he did not deserve such heavy punishment. The judgement of the case of the ‘grudge informer’ suggests that one can be punished for implementing a valid law that is not consistent with the basic principles of human conscience, indicating the importance of a law being moral. Therefore, the law and morality must not be mutually exclusive.
The Nuremberg Trials
The Nuremberg Trials were a series of trials that was taken place after the end of the Second World War where the defendants such as Nazi party officials, military officers, German industrialists, doctors, lawyers etc. were indicted on crimes against peace and crimes against humanity, war crimes and participation in a common plan or conspiracy. The purpose of the trials was to bring the Nazi war criminals to justice. The Justice Trial, for example, was the trial of sixteen German judges and officials of the Reich Ministry who were considered criminal responsibility for enforcing immoral laws. There were other trials going on, including the Doctors Trial and Einsatzgruppen Trial, but this essay will only focus on the Justice Trial to bring out the point that morality and the law are mutually inclusive concepts. Under normal circumstances, it is perceived that judges are figures to uphold justice. It became an issue when determining what responsibility judges would have for enforcing grossly unjust, but arguably binding laws. In the Justice Trial, it was held before the International military tribunal at Nuremberg that nine of the sixteen judges were found guilty, six of them were acquitted and the remainder were sentenced to 5 years to life imprisonment. They were convicted for helping with the “Nazification” of German law. Having not objected to the immorality of Nazi laws but to enforce them instead, they were held responsible for furthering racism through implementing eugenic and racial laws. The principle that can be derived from the decisions of the Justice Trials is that morality has a place in backing up the validity of the law, because if morality and the law were independent concepts, the judges would not be convicted for any crime merely implementing laws that were binding during the time of Nazism.
Attorney General v. Adolf Eichmann
The Eichmann Case is another post-World War II case that has sentenced death penalty to an official who has aided in the implementation of immoral actions that are ‘right’ to do in the Nazi regime. The accused, Adold Eichmann was the Head of Section (Referant) for Jewish Affairs who oversaw matters relating to the execution of the Jews. He facilitated and managed the logistics of deporting Jews to ghettos and concentration camps. He was convicted of war crimes, crimes against humanity and crimes against the Jewish people. There was no defence for him to claim that he was just following the Nazi law and superior orders.
The above three judgments share one thing in common- all the defendants are convicted for implementing for what ‘is’ the law during Nazism that are immoral. There is no defence for them to claim that they are just following what is binding during the time of Nazism. These judgments tell a message- when the laws are violating the basic principles of morality, one should be bound by values beyond the law or one will be punished for violating the basic principles of human conscience despite not violating what ‘is’ the law. These post-world war II judgments indicate a victory of natural law over legal positivism. Had morality not been a necessary element to the validity of the law, none of those who had implemented the immoral law should be subjected to punishment. Therefore, it thereby suggests that morality is an essential factor in the law and although the law and morality are not overlapping one another entirely, they are mutually inclusive concepts.
Fuller says that discussion of morality is simply inescapable if we want to completely understand the concept, including the main objectives of law. It is arguable that for the most part of the law, legal positivism holds. It is just in extreme circumstances such as the Nazi regime where natural law has to be referred to. Hart suggestion is inclusive positivism, however, according to Fuller it is inadequate. The influence of morality to the law should not only be zoomed in under extreme circumstances, rather it should be understood that the law is pointing beyond itself to moral considerations in an everyday sense. Fuller proposed eight procedural natural law principles to make up the inner morality of law. They include the law being (1) existent, not ad hoc; (2) promulgated; (3) prospective rather than retrospective; (4) clearly stated and comprehensive; (5) the various aspects of the law being consistent with each other; (6) possible to be obeyed; (7) constant or relatively long lasting and (8) applied and administered as stated.
It seems to be that the eight principles proposed by Fuller are merely depicting how the law should be in the standard procedural way as accepted by positivists in the natural justice sense, Fuller argues that they are in fact all based on morality. For example, it is morally wrong to put a person in prison for violating a law without the knowledge of that law because the law is not promulgated. This is an infusion of the legal process with morality so the law and morality are inseparable.
Conclusion
This essay has looked at the main criticisms of legal positivism as proposed by Hart and how he seeks to counter the critiques. While Hart is successful in broadening the definition of law and explain the problem of Penumbra, his account to morally bad laws has explicitly suggest that there is in fact a sense of morality within legal positivism- soft positivism. What soft positivism is suggesting is while the validity of the law does not have to confront with morality, it is not denying that morality has an influence over the law. This means that morality and the law are inseparable even in a positivistic sense. Therefore, morality and the law are attached to one another.
Although not everything that is moral is legislated and not everything that appears in the law has something to do with morality, indicating morality and the law are not overlapping each other entirely, Fuller’s internal morality of law explains that there is an intersection between the law and morality. This is recognized by legal positivists as well in natural justice.
Moreover, post-World War II jurisprudence seem to favour natural law over legal positivism because the judgments suggest one will still be liable for violating basic moral principles even he or she has not violated what ‘is’ the law. This can only be explained with natural law theories.
Therefore, this essay will conclude that the law is not a self-standing model. It relies on moral principles. The law and morality are neither mutually exclusive concepts, nor do they overlap each other entirely. However, there is an intersection between the two so they remain mutually inclusive concepts as supported by the reasoning in this essay.