The Hart-Fuller Debate by Justice Markandey Katju – Judge, Allahabad High Court

Posted in Uncategorized by drsivalaw on December 21, 2009

Natural law theory holds that along with the positive law there exist certain ideal principles or values to which the positive law should correspond if it is to be regarded as genuine law. Thus, while positivism holds that to be valid law, all that is required is that it should issue from a competent legislator after following the prescribed process, natural law theory requires in addition that such law, to be valid, must conform to some ideal principle (which may emanate from morality, reason, God, or some other such source).

The Hart-Fuller “debate” illustrates the opposing points of view of positivism and natural law, particularly in the context of Nazi laws.*

The “debate” began when Hart published his Holmes Lecture (entitled Positivism and the Separation of Law and Morals) delivered at Harvard Law School in April 1957 and published in Harvard Law Review in 1958. The reply was given by Fuller in his article “Positivism and Fidelity to Law – A reply to Prof. Hart”, also published in 1958 in Harvard Law Review.

Hart’s rejoinder was in his book The Concept of Law, to which Fuller replied in the first edition of his book The Morality of Law. To this Hart gave his reply in 1965 in Harvard Law Review. Fuller replied in the Second (Revised) Edition of The Morality of Law, published in 1969.

This ding-dong, inconclusive series of repartees and rejoinders led Cotterrell to remark in his book The Politics of Jurisprudence:

“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. Decade after decade positivists and natural lawyers face one another in the final of the World Cup. Victory goes now to one side, now to the other. The legal theorist can only cheer or jeer, label his opponent a moral leper or a disingenuous romantic.”

It is submitted that the theory of dynamic positivism** really puts the debate to an end.

Dynamic positivism certainly supports Hart’s view that Nazi laws were also laws (though wicked laws). But the reasons which dynamic positivism gives are deeper and more consistent than those of Hart.

A typical example considered in the Hart-Fuller debate was of the wife of a German who reported her husband to the Gestapo for criticizing Hitler’s conduct of the war. The husband was tried and sentenced to death, but his sentence was converted to service as a soldier on the Russian front. The husband survived the war, and after the war instituted legal proceedings against his wife.

The wife’s defence was that her husband had committed an offence under a Nazi statute of 1934. Post-war Germany, however, held the wife liable.

Hart argued that the decision of the court was wrong, as the Nazi law of 1934 was a valid law (as it satisfied his “rule of recognition”), whereas Fuller contended that the Nazi regime was so “lawless” that nothing therein could qualify as law.

The basic principle of Nazi law was laid down in the Enabling Act of July 12, 1934 passed by the German Reichstag which amended the German Constitution by permitting Hitler to issue decrees inconsistent with the Constitution, including decrees passing the budget, making treaties, and even amending the Constitution. As declared by Goering to the Prussian prosecutors on July 12, 1934 “The Law and the will of the Fhrer are one”.

The nature of Nazi justice has been described in William Shirer’s The Rise and Fall of the Third Reich, under the heading “Justice in the Third Reich” (at p. 369). Nazi racial laws regarded Jews as inferior beings and treated them inhumanly. There was total arbitrariness and terror during Hitler’s rule; the Gestapo being empowered to arrest, torture or even kill any person without any charge or trial. Ultimately 6 million Jews were murdered in gas chambers, apart from the other atrocities committed by the Nazis.

Now Germany had been industrialized long before Hitler came to power. Democracy and the rule of law are necessary concomitants of an industrial society. This is because:

(1) Industrial society is based on science, and science is based on the study and application of objective laws. Industrial society simply cannot function on the basis of arbitrariness, and there has to be the rule of law, otherwise the productive processes in such a society will be disrupted. Arbitrariness and whimsical orders are totally antithetical to the functioning of an industrial society.

(2) Industrial society is democratic society. There can no doubt temporarily be dictatorial governments in an industrial society (e.g. Nazi rule), but these will necessarily be short-lived aberrations, and society during such a period will not function smoothly but fitfully.

We can now bring the Hart-Fuller debate to a close.

Hart is right, Nazi laws were certainly laws, but such laws were wholly inconsistent with the mode of production in industrial society (which stage Germany had reached long before Hitler came to power), and with the social relations engendered by such a mode of production.

Hitler’s regime in fact could not have lasted long, as it was based on features which disrupt industrial society e.g. arbitrariness and terror. In fact Hitler’s regime would have collapsed much earlier than it did had it not received the support of Chamberlain and Daladier.

Hitler turned the German economy into a war economy1. Massive rearmament could only lead to a parasitic economy relying on wars of conquest, slave labour and stolen goods (from conquered countries).

Thus Hitler tried to turn Germany into a nation in some respects similar to ancient Rome which conquered many nations to obtain slaves and tribute (much of the grain distributed practically free to the Roman populace was forcibly taken from Egypt). But slave society had perished with the Roman Empire 1500 years ago. To turn the clock back and try to restore it was impossible. Slavery is wholly inconsistent with modern industrial society (in fact it is inconsistent even with feudal society).

Hence Hitler’s laws were wholly inconsistent with historical development in Europe. In attacking Jews, Hitler tried to throw Germany back into the middle ages. Hitler came straight out of a museum into the modern world. However, the laws he made, though hideous and monstrous, were certainly laws, as they were in accordance with the Enabling Act passed by the Reichstag.

The anxiety of natural law thinkers like Fuller is that unless Nazi laws are treated as non-laws, those who perpetrated atrocities under the Nazi regime could escape punishment.

However, as pointed out by Hart, retrospective laws could have been framed after the Second World War retrospectively repealing Nazi laws and retrospectively declaring the acts of perpetrators of such atrocities as criminal.

No doubt retrospective criminal statutes are ordinarily frowned upon, but Hitler’s regime was exceptional. In fact in the Nuremberg trials, certain laws, e.g. crimes against humanity, were applied retrospectively to punish Hitler’s accomplices. Hence there is no absolute prohibition on the retrospective enactment of criminal laws, and this should certainly have been done in the case of the Nazis.

Fuller says that a law to be a law must have “inner morality”.

But where does morality come from? It arises from the mode of production. The ancient Greeks and Romans found nothing immoral in slavery (except stoics like Seneca, who were really on the fringe of ancient Roman society, and not in its mainstream, and really belonged intellectually to the subsequent Christian era). But today everyone regards slavery as immoral. Thus any law which reflects the social relationships of a slave society or feudal society will today be regarded as immoral or unjust.

The Nazi regime was certainly immoral, but it was immoral because it was totally inconsistent with the mode of production of modern industrial society and the social relations and values which such a society engenders. Unless one grasps this point clearly the Hart-Fuller debate will go on endlessly.

Hart becomes inconsistent when he concedes a “minimum content of natural law” (see Hart’s The Concept of Law) in which he includes (1) human vulnerability, (2) approximate equality, (3) limited resources, (4) limited altruism, and (5) limited understanding and strength of will. Thus Hart practically concedes the existence of a certain degree of natural law. But it could easily be pointed out that “natural law” is merely the norms which have to be followed for the smooth running of a society at a particular stage of its historical development. Slave-holding societies, e.g., ancient Greece and Rome, regarded slavery as natural, feudal society regarded serfdom and aristocratic privileges as natural, while industrial society regards equality as natural. Thus what is “natural” depends on the mode of production at a particular stage of historical development.

Once this basic concept is grasped, all the talk of Fuller (and even Hart) that there must be a “minimum degree” of morality in law in order that it may qualify as law goes up in smoke.

The “minimum morality” idea is bound to land us in difficulties. What is that minimum? This itself is hazy and uncertain. Different persons may have different views about it, and it is bound to be different at different stages of historical development. Hart mentions five features of minimum morality, and Fuller conceives of eight. Others may conceive of dozens.

It is submitted, that both Hart and Fuller, insofar as they require a “minimum morality” in law, are in error. That is not to say that laws cannot be immoral, but that immorality does not disqualify them from being law. “Minimum morality”, it is submitted, is nothing but the conformity of the law to the stage of historical development a particular society has reached, so that society may function smoothly.

Are we then to define law as a set of rules made for the smooth running of society at a particular stage of historical development in conformity with the mode of production of that stage?

The difficulty with this definition is that it does not take note of the fact that the law often lags behind social development (as happened in pre-revolutionary France or pre-revolutionary Russia). There can be reactionary laws which throw society backwards. Also, as dynamic positivism advocates, laws can be ahead of social development in order to guide society forward.

The “revival” of natural law was only a temporary, emotional reaction to the atrocities of the Nazi regime, but it had no scientific basis. As pointed out by the author in his book Law in the Scientific Era, natural law is unacceptable in the scientific era, which relies more and more on positive law (see the chapter entitled “Natural Law in the Scientific Era”). In fact, despite the gallant effort of Fuller and that of others (which reminds one of Don Quixote), very few persons rely on natural law today. The “revival of natural law” collapsed within two decades of the end of the Second World War.

We can certainly say that certain minimum rules are required in a society for its smooth functioning at a particular stage of its historical development. But we need not resort to the mystical concept of “natural law” for that purpose. There are often deviations from these minimal rules e.g. arbitrariness and whimsical orders in modern society, and these disrupt the productive processes and social relations in society. The remedy for this is amendment of the law and insistence on legality, and not a resort to natural law.

For the validity of a law we therefore go back to Hart’s rule of recognition, from which Hart has himself deviated by requiring in addition to the rule of recognition a minimum morality for a law to qualify as a law.

Hart’s rule of recognition, in simple language, says that a law to be valid must be made in accordance with the Constitution of a country (whether the Constitution is written or unwritten).

This rule of recognition is somewhat different from Kelsen’s grundnorm, which in most countries can be identified with the Constitution itself.

Whether we go by Hart’s theory or Kelsen’s, in either case we see that the entire legal system rests on the Constitution. But where does the Constitution come from?

The Constitution is a product of certain historical and political developments, and these in turn are heavily conditioned by social and economic factors. Classical positivism does not go beyond the Constitution, dynamic positivism goes beyond it, and studies the historical, social and economic forces behind the Constitution and the other laws.

In conclusion we may ask whether there is no place for idealism in the legal system. Classical positivism, of course, finds no place for it, but dynamic positivism has tremendous idealism, not by relying on natural law but on the basis of scientific understanding.

As mentioned in Law in the Scientific Era, dynamic positivism aims at guiding society forward on scientifically planned lines. It studies the historical trend in society, and aims at peacefully helping social advance. The legislator in a scientific society is therefore a person who is both scientific as well as idealistic. His idealism is however not utopian. It does not proceed from some a priori, innate ideas, but from a scientific study of society’s objective historical patterns and processes, the aim of such study being to peacefully guide society forward in history. Only a person who is genuinely sincere, compassionate, full of love for his fellow human beings, and filled with a strong desire to abolish suffering can be a dynamic positivist, though of course he must also have scientific understanding.


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