Beruflich Dokumente
Kultur Dokumente
A PROJECT REPORT ON
Submitted by:
Avilash Kumbhar (2012/BBALLB/015)
Gautam Panigrahi(2012/BBALLB/022)
Semester - V
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Lon Fuller was an American jurist and worked as a teacher at Harvard. He shields the Natural
law standards of law. To admire the debate it is worthy to note the major contrasts in the
advancement of law in the two nations. In England Law has advanced over numerous hundreds
of years and generally through case laws. In America law has developed over a shorter time of
time and to a great extent focused around codified law. England has seen relative political
strength for a longer period of time and America for a much shorter time. In England Equity
courts are different in relation to Common Law courts. Equity as per value can be allowed just in
the Chancellor's court and all different courts will concede equity by applying law as settled
either by the letter of the law or through case laws or by another case law made for the facts of
the case.
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In 1944 a German soldier came home from far front for a short visit. In his conversation with his
wife he criticized the Hitler government and Nazi Party. He even expressed his dismay that the
man who attempted to assassinate Hitler did not succeed. During his long absence there were
other men in her life and hence she was keen to get rid of her husband. After his departure to war
front the wife reported his remarks to the local leader of the Nazi party. The husband was tried
by a military tribunal and sentenced to death. However he was not executed. After a short period
of imprisonment, he was sent to the front again. After the collapse of the Nazi regime, a case was
initiated against for illegally depriving the husband of his freedom. After the collapse of the
Nazi regime, the wife was brought to trial for having procured unlawfully the imprisonment of
her husband.
The wifes defense was that she was required to furnish such information to the authorities under
the Nazi statutes and she did not commit any crime. The court of appeal which decided the case
held that the statute under which the wife was claiming protection "was contrary to the sound
conscience and sense of justice of all decent human beings."4 Hence it was reasoned that she
could not be given protection under such statute. This reasoning became a precedent in many
other informer cases. This reasoning was followed in many cases which have been hailed as a
triumph of the doctrines of natural law and as signaling the overthrow of positivism.5
1
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev.616 (1958)
Lon L. Fuller, Positivism and Fidelity to Law -A Reply to Professor Hart, 71 Harv. L. Rev. 658 (1958)
3
See Hart, supra note 1
4
Hart, supra note 1,
5
Ibid
2
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Austin formulated the doctrine: The existence of law is one thing; its merit or demerit is
another.8 A judge deciding a case should go by law as it is. Prof. Hart points out that all cases
may not fall exactly within the law as it is which he calls the core. There will be cases in the
penumbra of law. Harts view is that morals can be an influential factor in deciding cases in the
penumbra.
Jurists like Bentham saw two dangerous results of natural law theory. The anarchist may argue:
This ought not to be the law, therefore it is not and I am free not merely to censure but to
disregard it.9 On the other hand the reactionary may argue: This is the law, therefore it is what
it ought to be.10 In other words the danger is that on the one hand law and its authority may be
dissolved in man's conceptions of what law ought to be and on the other hand there is the danger
that the existing law may supplant morality as a final test of conduct and so escape criticism. So
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It is admitted by Prof Hart and other supporters of Positivism that legal systems had been
powerfully influenced by moral opinion13and, conversely, that moral standards had been
profoundly influenced by law, so that the content of many legal rules mirrored moral rules or
principles. According to Bentham this is only a historical causal connection, but Bentham was
certainly ready to admit its existence.14
Prof Hart presents the discussion of separation of law and morals as a problem of separating law
as it is and law as it ought to be. He criticizes natural law thinkers for ignoring this difference.
Prof Hart identifies the essentials of positivism as the following:15
i.
ii.
The contention that there is no necessary connection between law and morals or law
as it is and ought to be
iii.
The contention that the analysis (or study of the meaning) of legal concepts is worth
pursuing and to be distinguished from historical inquiries into the causes or origins of
laws, from sociological inquiries into the relation of law and other social phenomena,
and from the criticism or appraisal of law whether in terms of morals, social aims,
functions, or otherwise.
iv.
A legal system is a closed logical system in which correct legal decisions can be
deduced by logical means from predetermined legal rules without reference to social
aims, policies, moral standards,
11
12
Ibid.
Id. At 599.
13
Id. At 598.
14
Ibid.
15
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Prof Hart also deals with the issue lack of precision in the words used in any human language
and the role of this factor in judicial interpretation. While applying legal rules to the facts of a
case it become necessary quite often to decide the meaning of the words in a statute and to
decide whether the words used covers the facts to be decided. Sometime standard instances of
the words may not be sufficient to give proper effect to the law. Prof Hart calls these as
problems of the penumbra.16
Problems of penumbra cannot be solved by logical deduction. The criterion which makes a
decision sound in such cases is some concept of what the law ought to be.17 This is where a
moral judgment is made about what law ought to be. This is called by Prof. Hart as necessary
intersection between law and morals.18
Id. At 607.
Hart, supra note 1, at 608.
18
Ibid.
17
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19
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Thus on the one hand, there was a moral duty to obey law. On the other hand, there was a moral
duty to do what people thought after the war was right and decent. The fundamental postulate of
positivism that law must be strictly severed from morality seems to deny the possibility of any
bridge between the obligation to obey law and other moral obligations.25 Thus the German
Courts faced a serious dilemma in restoring both respect for law and respect for justice.
Essentially Radbruch saw the dilemma as that of meeting the demands of order, on the one hand,
and those of good order, on the other.26 Order by itself is no good unless it serves some purpose
for the society. So we should not get obsessed with just order. At the same time in the process of
seeking good order we should lose order itself leading to anarchy. As we seek to make our order
good, we can remind ourselves that justice itself is impossible without order, and that we must
not lose order itself in the attempt to make it good.27
24
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Prof Fuller, like Professors Hart and Radbruch, would have preferred a retroactive statute to deal
with informer cases. His reason for this preference is not that this was the most nearly lawful
way of making unlawful what was once law.32 He argues that this would have helped the
judiciary to return more rapidly to a condition in which the demands of legal morality could be
given proper respect. According to him this would have helped in preserving the fidelity to law
in a more ideal manner.
28
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35
Id. at 669-672
Id. at 670
37
Naz Foundation v Government of NCT of Delhi, 2009 (160) DLT 27
38
D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469.
39
D. Velusamy v D. Patchaiammal, (2010) 10 SCC 469, at para 36-37
36
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The issue devolves into the larger question over how law should be defined. Prof Hart was of the
opinion that integrity of the law must be maintained. Prof Fuller argues that law itself cannot be
defined within set parameters and hence it is fidelity of law which must be preserved. Fidelity, he
maintains, would involve morality and so one has to see law and morals as one, in this context.
In everyday practice it would be wise for any individual to keep a moralistic lookout while acting
upon laws, because, as Fuller later points out, not all situations may fall within the core areas of
the law. There are some unchartered waters as well, which he calls, the penumbra. And the
standard instances may not be standard after all, an in such cases, it will be prudent to look at
the objective of the entire provision.
So it is not possible to separate law from morals. No law can be very precise because every word
has different meanings and different shades of meanings. Further no law can envisage all types
of situation it has to handle to achieve the desired behavior. So when in doubt regarding the
meaning of law one has to look at the moral values among other things.
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Lon L. Fuller, Positivism and Fidelity to Law -A Reply to Professor Hart, 71 Harv. L.
Rev. 658 (1958)
Separation of law and morals : A debate about legal validity and its implications for
moral criticism
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