Hart and Fuller Legal Arguments Analysis

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There has been a debate between Hart and fuller that has brought up arguments and room for discussion. This essay will show three specific arguments put forward by both Hart and Fuller; the criticisms of Harts theory and the reasoning behind the rebutting of the statement “Fuller confuses the efficacy of a legal system with its morality.”

The starting point would be to look at the ideals and the reasoning behind the theory that was suggested by Hart. Hart can be seen as a 20th century positivist who believes that there is a separation between what the law is and what the law ought to be[1]. This means that there is a distinction between the law and morality. Hart begins with the explanation of how rules that confer rights need not be moral rules or coincide with them[2]. He also went further to say that rights exist under the rules of formalities, games and in many other spheres regulated by rules which are irrelevant to the question of justice or what the law ought to be[3]. This argument shows how Hart has made the distinction between legal rights and moral rights which goes back to the separation of law and morality.

In addition to this, Hart expresses what a legal system should consist of. He believes that people in the society generally obey the rules and when that society has no court or police reinforcement it will have some sort of informal rule to organize the social life[4]. If people want a secure life they have to follow these rules[5]. These rules according to Hart are primary rules; the primary rules set out what the obligations and duties are in a society[6]. Examples of such rules would be criminal prohibition and tort rules because these rule prohibit theft and forbids certain conduct[7].

Hart explains that a legal system cannot operate with primary rules alone, there has to be another set of rules that shows and tell the people of society how those rules of conduct work. These are known as secondary rules and they contain three rules which are (1) the rule of recognition, (2) the rule of change and (3) the rule of adjudication[8]. The rule of recognition is the rule that helps identify the uncertainty of which are rules when a society has a lot of primary rules[9]. The rule of change is the rule that specifies the procedure of changing the primary rules and the rule of adjudication is the rule that establishes the process of determining the application of a primary rule in particular cases[10].

Hart believes that the rule of recognition plays a vital role in a legal system. This is because it is a matter of social practise; it does not need to be written down[11]. It is the rule that society accepts as the authority’s way to determine what the primary rules are.[12] Hart believes that an effective legal system could have wicked laws.

Another argument that Hart purports is that of Judicial interpretation. Judges look at the standard meaning of the word. Hart believes that the task of interpretation is commonly that of determining the meaning of the specific words of a legal rule, like “vehicle” in a rule excluding vehicles from a park[13]. Particularly the task of interpretation is to determine the range of reference of such a word[14]. Communication is possible only because words have a core of meaning that remains constant whatever the context in which the word may appear[15]. Except in unusual circumstances where it would be proper to regard a word like vehicle as accepting its standard meaning. This meaning of the word will have in any legal rule, whatever its purpose is. If a judge is applying the word to its standard meaning, then there is no creative role; the judge is simply applying the law as it is[16].

In addition to this Hart also talks about the words having a penumbral meaning which varies from context to context. Following the example given in the previous paragraph when the object in question (tricycle) falls within the penumbra the judge has to assume a more creative role[17]. The judge will have to make an interpretation of the rule in the context of its purpose and aim[18] which gives room for judicial discretion. When questions of this sort are decided there is at least an intersection of is and ought[19]. The judge makes decisions on what the rule is but he does this in the light of his notion of what it ought to be to carry out its purpose[20].

Looking at the arguments and theories that Hart suggests there are some inconsistencies that gives room for criticism and questioning. In making these criticisms, Fuller’s theory and argument will be used. The first argument by Hart that referred to the separation of what is and ought to be can be criticised. He believes that law confers rights but these rights need not be moral. Fuller explains that certain moral standards are built in to the concept of law itself. It is agreed that the law confer rights on individuals but since there are certain moral standards embedded in the law then it would be wrong to say that these rights conferred by law are not necessarily moral rights. This shows the that law and morality are not as separate as Hart claims.

In relations to Harts second argument regarding what a legal system should consist of, in contrast to this fuller gives his own theory of how a legal system should be. Fuller discusses that the function of a set of rules must play is defined in the law[21]. Law as defined by Fuller is a particular way of achieving social order by guiding human behaviour according to rules[22]. He attempts to identify what he calls the internal morality of a system of legal rules[23]. In order for rules to be effective and qualify as law in any system these eight “principles of legality” must be adhered to. They are (i) the rule should be general; (ii) the rule should be made public, (iii) the rule must not be retroactive (iv) the rule should be clear, (v) the rule should be non-contradictory, (vi) the rule must be possible to follow, (vii) the rule should remain constant through time and (viii) there should be congruence between official action and declared rules. In other words, running the legal system fairly based on the eight principle seems to be a prerequisite of running it effectively and this suggests a point where law and morality merge[24].

It is important to note that Fuller does not claim that any system that follows these procedures is perfectly moral[25]. Rather, his view is that the procedures embodied in a legal system are morally important and determine whether a set of rules really count as a legal system[26]. The purpose of this legal system is to provide people with guides of action. He goes on to explain that for a legal system to be effective there has to be a cooperation between the officials and the citizens.

In relations to the third argument of Judicial interpretation. Hart believes the judiciary should interpret the law in its literal meaning when dealing with core cases but in the penumbra cases there is room for judicial discretion and this is where the judge interprets the law based on what he thinks ought to be law to carry out its purpose. This in itself shows how contradictory the principle he gives is. He clearly states that law and morals should be separate but when it comes to penumbral cases there should be a merge of law and morality to satisfy the purpose of the law. In terms of interpretation Fuller believes the law must be interpreted in light of its purpose. Fuller also explains in interpreting the law the judge should try to make it fair in order to persuade the citizens to fairness and the rational of the law.

Fuller criticises the theory of the Nazi informer made by Hart in his thesis. He believes that a system such as that in Nazi Germany could violate the morality of order to such an extent that it no longer had laws[27]. Fuller agreed with the theory set out by Radbruch who explained that the doctrine of fundamental principles of humanitarian morality were part of the very concept of legality and that no positive statute however clearly expressed it was could be valid if it contravened the basic principle of morality[28].

In conclusion the theories that Fuller puts forward against separation of law and morals are much more substantial and it shows that rather than fuller confusing the efficiency of a legal system with its morality. He shows that for a legal system to be effective it has to have an underlying morality.

BIBLIOGRAPHY

Daniel Chong, ‘Hart on penumbra and core meaning’, file:///C:/Users/User/Downloads/HART_on_pernumbra_and_core_meaning.pdf accessed 24 November 2016

Faculty.ycp.edu, ‘Fuller’s Internal Morality of Law’, http://faculty.ycp.edu/~dweiss/phl347_philosophy_of_law/Fuller%20and%20the%20internal%20morality%20of%20law.pdf accessed 24 November 2016

H.L.A Hart, ‘Positivism and Separation of Law and Morality’, (1958) 71 Harvard Law Review 593

Hubpages.com, ‘Summary of Legal Positivism Concept and Hart’s Separation of Law and Morality: Fairly Legal (1)’ (15 Septemper,2013) http://hubpages.com/education/Harts-Positivism-and-the-Separation-of-Law-and-Morality-Fairly-Legal-1 accessed 23 November 2016.

Michael Green, ‘Fuller on Hart’, (carneades, 21 February, 2013) http://carneades.pomona.edu/2013-Law/0220-nts.shtml accessed 24 November 2016


[1] H.L.A Hart, ‘Positivism and Separation of Law and Morality’, (1958) 71 Harvard Law Review 593 p 549

[2] Ibid, 606

[3] Ibid, 606

[4] Hubpages.com, ‘Summary of Legal Positivism Concept and Hart’s Separation of Law and Morality: Fairly Legal (1)’ (15 Septemper,2013) http://hubpages.com/education/Harts-Positivism-and-the-Separation-of-Law-and-Morality-Fairly-Legal-1 accessed 23 November 2016.

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

[13] Daniel Chong, ‘Hart on penumbra and core meaning’, file:///C:/Users/User/Downloads/HART_on_pernumbra_and_core_meaning.pdf accessed 24 November 2016

[14] Ibid

[15] Ibid

[16] Ibid

[17] Ibid

[18] Ibid

[19] Ibid

[20] Ibid

[21] Faculty.ycp.edu, ‘Fuller’s Internal Morality of Law’, http://faculty.ycp.edu/~dweiss/phl347_philosophy_of_law/Fuller%20and%20the%20internal%20morality%20of%20law.pdf accessed 24 November 2016

[22] Ibid

[23] Ibid

[24] Michael Green, ‘Fuller on Hart’, (carneades, 21 February, 2013) http://carneades.pomona.edu/2013-Law/0220-nts.shtml accessed 24 November 2016

[25] Ibid

[26] Ibid

[27] Michael Green, ‘Fuller on Hart’, (carneades, 21 February, 2013) http://carneades.pomona.edu/2013-Law/0220-nts.shtml accessed 24 November 2016

[28] H.L.A Hart, ‘Positivism and Separation of Law and Morality’, (1958) 71 Harvard Law Review 593 p 617

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