Morality Within Law: Its Positively Natural!

For my second blog, or “musing,” I have decided to address the Hart-Fuller debate regarding positivism and natural law. Although I had originally intended on directly pursuing the “food for thought” topic for this week, our class discussion regarding the Hart-Fuller debate has proven far to enticing to not address. Moreover, I feel that a discussion regarding the Hart-Fuller debate, maintains the spirit of discussion as laid out in this week’s “Food For Thought.”

Before we begin the crux of this musing, we should first identify both Hart and Fuller, while defining their positions on law and legality. For the purposes of this blog, I will attempt a short and concise summary of each scholar’s contributions regarding the debate of morality within law(s).

Herbert Hart can be identified as a legal scholar/theologian who’s basic principles essentially suggest that even though certain laws may be seen as immoral, as we will see with the forthcoming Nazi example, they are still valid, binding laws as they have been both legitimately enacted and legitimately followed/enforced/maintained; as the issue of legitimacy is not in question, one cannot disrupt the validity of said laws by claiming they were never legitimate to begin with as the possessed zero moral grounds (Pavlich, 2011).

Lon Fuller, also a legal scholar/theologian, suggested law in itself contains morality to some degree, that this morality is what can be seen to justify and validate a laws legal authority (Pavlich, 2011). Furthermore, Fuller incorporated this concept of legal morality in his understanding of law making, by describing law making as the “craft of law making” (Pavlich, 2011). Fuller’s description of law making as a “craft” can be seen his prime indication that there is something more occurring within law than just simply legality. Much like any tradesman/tradeswoman, there are elements of intangible talent that one possesses in order to be considered “good” (Pavlich, 2011). This point is reflected by Pavlich (2011) when he continues to describe Fuller’s position by stating “the craft of lawmaking has what he calls a unique ‘internal morality’ that allows us to identify it, legitimately, as law” (p. 30).

The swell of the Naturalist/Positivist standoff came to a head during a post World War Two German court case where the legitimacy/validity of previous laws (laws enacted by the Nazi regime) were tested to determined whether or not those that had acted in accordance with specific Nazi laws had acted rightfully (legally) or not (Pavlich, 2011). For the purposes of this blog I will not go into great detail regarding the specific case at hand. However, so that everyone reading this is on par, I will continue with a summarized version of the proceedings:

A woman (living in Germany, under the Nazi regime), reported her soldier husband to authorities as he had mentioned to her that he was disappointed that a recent assignation attempt on Adolf Hitler had been unsuccessful; this was a crime at the time as the Nazi party had enacted laws to prevent and punish such communications. After the wife of the German soldier reported this to Nazi officials, the German soldier was arrested and sentenced to death. Although the death sentence was not carried out, he was sent to the front lines of the war; a technical death sentence at the time. After the war ended, and her husband surviving, she was charged and convicted under new regulations which declared the previous regulation(s) imposed by the Nazi regime to be invalid and as such, of no legal authority. (Pavlich, 2011).

With this case at hand, Hart and Fuller found themselves disagreeing upon the legitimacy/validity of the Nazi law the woman had “followed.” Although this debate can be seen as a battle between two men, in reality it is the collision of the two very differently minded legal positions, positivism and natural law.

Positivism would suggest that the woman, regardless of motivation, acted appropriately and in accordance with a justifiable law. Furthermore, positivism would suggest that if immoral, ulterior motives knowingly did exist within her decisions to report her husband, it would not matter as that is not the issue of debate. Positivism, through its perspective, sees no room for morality within in law. Moreover, one could suggest that positivism outright pushes away the sense of law entangled with morality. However, Fuller and natural law theorists would have us believe otherwise.

Natural law theorists would suggest that any law based on injustice or immorality loses its credibility and validity, ultimately striking away its power, disregarding the law altogether. Essentially, this removes any perceived legal responsibility on the part of those the law would normally regulate. Furthermore, natural law theory can be seen to suggest that an outside source of justice must exist for anyone to make this claim. For if we are able to suggest that a law, even one legitimately enacted, retains no power due to its immorality, a separate barometer of right and wrong must exist outside the spectrum of law.

When all is said and done, I find myself leaning toward, and ultimately siding with, Fuller’s position. Although Hart’s position is quite logical and understandable, especially when looking at his scathing critique of the naturalist position, I cannot but help remember the quote by great legal scholar/theologian St. Augustine, “an unjust law is no law at” (Pavlich, 2011, p. 22). Furthermore, one could suggest the post World War Two courts agreed and sided with the Naturalist position, as the woman charged in the case study, was eventually convicted on the ground that the Nazi enacted law retained no legal authority, regardless of its legitimate creation.

Ultimately the validity of law remains within its inherent morality, as no single individual would agree to be ruled by laws and regulations that were not at least based on some moral underpinning; at the very least ones own personal moral underpinning. Suggesting legal rules and regulations are exempt from moral reasoning and rationale is absurd and should be extinguished. Law is not intended to be arbitrarily created, enacted or altered, as though it is a child’s playground where rules are made at whim in order to satisfy those in charge. Laws are intended to be basic, fundamental rules and regulations that we as a society agree upon, social, guiding principles that remain true yesterday, today and tomorrow. As far I’m personally concerned, positivism, although well-intentioned in its focus, neglected to give weight to the intangible elements of law and society, giving way to cold, calculated machine-like perspective on legality; not surprisingly embraced by the cold, calculated Nazi regime. Ultimately, it is my view that positivism failed in its attempt to dehumanize regulations intended to govern humans, and that appears ironically irrational.

Note*

Below is a link to an interesting article discussing the compatibility of law and morality. Additionally, I have included a video that attempts to break down and explain the debate between Natural Law and Positivism, enjoy.

Article:http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1185&context=wmlr&sei-redir=1&referer=http%3A%2%2Fwww.google.ca%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dhart%2520fuller%2520debate%2520articles%26source%3Dweb%26cd%3D14%26ved%3D0CDEQFjADOAo%26url%3Dhttp%253A%252F%252Fscholarship.law.wm.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1185%2526context%253Dwmlr%26ei%3DC2lmUJLUFqXgiwLaoIDIBg%26usg%3DAFQjCNExIPwJ1TiRNmgmnR5qWZnyFKhY1Q#search=%22hart%20fuller%20debate%20articles%22

Video: http://www.youtube.com/watch?v=ge7UowL0d3U

References

Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford.

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1 Comment

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One response to “Morality Within Law: Its Positively Natural!

  1. Good shorthand summary of Hart’s perspective as a proponent of legal positivism. I would amend it only by emphasizing that Hart is indeed interested in questions of morality – but he sees these as being the proper domain of moral philosophy of normative political science. The positivist study of law, being a purely descriptive affair, is decoupled from these questions of morality. You effectively acknowledge this when you say “Moreover, one could suggest that positivism outright pushes away the sense of law entangled with morality.”

    I would also amend your summary of Fuller’s position by noting that ‘law’ and ‘moral law’ are synonymous according to his brand of natural legal theory. Something that fails to demonstrate the internal morality of law simply does not meet the requirements necessary to be called law.

    You note that “Natural law theorists would suggest that any law based on injustice or immorality loses its credibility and validity”. I would agree, to a point. A great deal depends upon what a given theory has to say about the characteristics of morality. Fuller, for example, has no difficulty dismissing the ‘law-ness’ of the Nazi-era laws. As Pavlich (2011: 33) notes, however, his theory is less effective as a means of critiquing the Apartheid-era Prohibition of Mixed Marriages Act because it does not scrutinize the representativeness of lawmaking.

    This:

    “For if we are able to suggest that a law, even one legitimately enacted, retains no power due to its immorality, a separate barometer of right and wrong must exist outside the spectrum of law.”

    is an interesting and important statement. It actually echoes Hart’s position (!), in that he viewed ‘law-ness’ of the statute as a question of description but conceded that it was perfectly immoral and that subjects would be justified in disobeying it.

    I think that your position on the debate is quite reasonable. Your commentary on the failures of positivism in the lead-up to WWII is particularly effective.

    If this is an area of interest for you, I would recommend looking at David Dyzenhaus’ excellent recent volume ‘The Constitution of Law’, which looks at, among other things, the contrast between a substantive interpretation of the rule of law and a superficial, largely-procedural veneer of legality used to paper over unjust practices.

    Great post!