PROJECT ON

HART – FULLER DEBATE AND JUDICIAL DISCOURSE IN

INDIA OVER CHANGING INFLUENCE OF MORALITY

Submitted by

CHAITANYA POONIA

Reg. No. BA0160013

Under the Guidance of

Mr. Amrisha Tripathi

Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 009

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Ms. Amrisha Tripathi
Assistant Professor
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

CERTIFICATE

This is to certify that the project work entitled “Hart – Fuller debate and judicial
discourse in India over changing influence of morality” is a bonafide record of the
research work done by Chaitanya Poonia, under my supervision and guidance. It has
not been submitted by any other University for the award of any degree, diploma,
associateship, fellowship or for any other similar recognition.

Place: Tiruchirappalli

Date:

Signature of the Guide

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CHAITANYA POONIA
B.A.LL.B. (Hons.), IInd year
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

DECLARATION

I, Chaitanya Poonia, do hereby declare that the project entitled “Hart – Fuller
debate and judicial discourse in India over changing influence of morality” submitted
to Tamil Nadu National Law School in partial fulfillment of requirement for award of
degree in Under Graduate in Law to Tamil Nadu National Law School,
Tiruchirappalli, is my original research work. It and has not been formed basis for
award of any degree or diploma or fellowship or any other title to any other candidate
of any university.

Counter Signed Signature of the Candidate

Project Guide

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 ACKNOWLEDGEMENT

At the outset, I take this opportunity to thank my Professor Ms. Amrisha Tripathi
from the bottom of my heart who have been of immense help during moments of anxiety and
torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Mrs. Kamala

Shankaran and the administrative staff of TNNLS who held the project in high esteem by
providing reliable information in the form of library infrastructure and database connections in
times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious
time is unforgettable and highly solicited. Their valuable advice and timely supervision paved
the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all
hurdles during the making of this project. Words aren’t sufficient to acknowledge the
tremendous contributions of various people involved in this project, as I know ‘Words are Poor
Comforters’. I once again wholeheartedly and earnestly thank all the people who were
involved directly or indirectly during this project making which helped me to come out with
flying colours.

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Contents
INTRODUCTION ....................................................................................................................................... 6
PROF HART’S VIEWS................................................................................................................................ 7
PROF FULLER’S CRITICISM....................................................................................................................... 9
The Definition of Law .......................................................................................................................... 9
The Definition of Morality................................................................................................................... 9
The Moral Foundations of a Legal Order ............................................................................................ 9
The Morality of Law Itself ................................................................................................................... 9
The Problem of Restoring Respect for Law and Justice after the Collapse of a Regime That
Respected Neither ............................................................................................................................ 10
The Moral Implications of Legal Positivism ...................................................................................... 10
The Problem of Interpretation-The Core and The Penumbra .......................................................... 11
The Moral and Emotional Foundations of Positivism ....................................................................... 11
JUDICIAL DISCOURSE IN INDIA ON CHANGING INFLUENCE OF MORALITY .......................................... 12
1. Naz Foundation v. Government of NCT of Delhi ....................................................................... 12
2. D. Velusamy v. D. Patchaiammal .............................................................................................. 12
CONCLUSION......................................................................................................................................... 13

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 INTRODUCTION
Law brings with itself some reflections of public morality, but can law be separated from
morality? This question is of a familiar nature in the study of Law. Such debates were frequent
much before Prof Hart and Prof Fuller put forward their view on the subject and is likely to
continue between the two schools of thought, one supporting it and other opposing it. The side
supporting it is essentially are the English jurists and the side opposing it are essentially the
American jurists. Such distinctions are not always clear because Sir William Blackstone, an
English jurist supported the Natural Law Theory. Similarly Justice Oliver Wendell Holmes an
American Jurist opposed the doctrine of Natural Law.1

Hart was an English jurist who worked as Professor at Oxford. He defends positivist
school of jurisprudence. This round of debate on separation of law and morals was started by
Prof Hart. Lon Fuller was an American jurist and worked as a professor at Harvard. He defends
the Natural law principles of jurisprudence. To appreciate the debate it is appropriate to note
the fundamental differences in the evolution of law in the two countries.2 In England Law has
evolved over many centuries and largely through case laws. In America law has evolved over
a shorter period of time and largely based on codified law. England has seen relative political
stability for longer period of time and America for a much shorter time. In England Equity
courts are different from Common Law courts. Justice according to equity can be granted only
in the Chancellor’s court and all other courts will grant justice by applying law as established
either by the letter of the law or through case laws or by a new case law made for the facts of
the case.3

1
Jeremy Waldron, “Positivism And Legality: Hart's Equivocal Response To Fuller”, 83 N.Y.U. L. Rev. 1135,
2008,
At P. 1135.
2
Nicola Lacey, “H. L.A. Hart's Rule Of Law: The Limits Of Philosophy In Historical Perspective”, 36 Quaderni
Fiorentini 1203 (2007).
3
Supra Note 1 at P. 1138.

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 PROF HART’S VIEWS
Prof Hart believes in the theories of law as put forward by jurists like Bentham and Austin.
These jurists propounded utilitarian theory of law. Bentham and Austin, constantly insisted on
the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought
to be. Austin formulated the doctrine: The existence of law is one thing; its merit or demerit is
another. 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. Hart’s 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”. On the other hand the reactionary may argue: “This is the law,
therefore it is what it ought to be”.4 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 Prof Hart canvasses for the distinction between law as it is and law
as it ought to be. Bentham criticized Natural Law theory on the ground that "the natural
tendency of such a doctrine is to impel a man, by the force of conscience, to rise up in arms
against any law whatever that he happens not to like”. 5
Bentham also feared that under natural law theory courts might be legally bound to
decide in accordance with what they thought just or best. Such an approach can lead to all
round confusion. It is admitted by Prof Hart and other supporters of Positivism that legal
systems had been powerfully influenced by moral opinion and, 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.
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: (i)
The contention that laws are commands of human beings, (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

4
Bentham. , A Comment On The Commentaries, 49 (1928) (Oxford: Oxford University Press, 1928)
(as cited in Jeremy Waldron, “Positivism And Legality: Hart's Equivocal Response To Fuller”, 83 N.Y.U. L. Rev.
1135, 2008, At P. 1145).
5
supra note 3, at 601-602.

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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, (v) The contention that moral judgments cannot be established or defended, as
statements of facts can, by rational argument, evidence, or proof.”6

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 statue 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”. 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. 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”.7

6
Nicola Lacey, “H.L.A. Hart's Rule of Law: The Limits of philosophy in historical perspective”, 36 Quaderni
Fiorentini 1203 (2007).
7
H.L.A. Hart, “Positivism and The Separation of Law and Morals”, (1957) 71 Harv. L. Rev. 593.

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 PROF FULLER’S CRITICISM
Fuller on the other hand believes in the Natural Theory of Law and the moral foundations of a
legal order. So for him law should always conform to the idea of God’s justice. He is more
concerned with fidelity to law. He emphasizes the view point that fidelity to law can be
achieved only if law is consistent with morals at all stages that is during its making and during
its application by the court whether the case is in the core or the penumbra of law. Prof Fuller
feels that Prof Hart’s argument is about definition of law and why there is no room for morals
in the defining law. His argument is that morals cannot be fitted into any type of definition of
law.8
This is the main criticism against Hart’s line of thinking as given by Prof Fuller.
Professor Fuller argues that there cannot be a precise definition of law. So also there cannot be
precise definition of morals. When neither can be defined correctly it is futile to argue that both
are separate. The primary concern of Prof Hart is to preserve the integrity of the concept of
law.9 For Prof Fuller fidelity to law is of utmost importance. He argues that there will be fidelity
to law only if laws are consistent with moral values of the people who have to follow law.
Prof Hart criticized Hart’s theory under the following specific points
The Definition of Law
It is pointed out that it is clearly recognized that there cannot be any one definition of law.
When definition of law is not precise it is futile to argue that it is different from morals.
The Definition of Morality
Defining Morality is as difficult as defining Law. Law and Morals can be considered to be
different only if we define morals as all desirable standards for human behavior other than law
itself.
The Moral Foundations of a Legal Order
People comply with law only if they are convinced that the law is for common good. That is to
say for achieving fidelity to law, Law should have moral foundations.
The Morality of Law Itself
On rare occasions legal system is confronted with Laws which are anathema to general sense
of morality. Such situations were faced during Nazi regime. After the fall of the Nazi regime
the jurists had a challenge to choose between the consequence of such immoral laws and the
rule of law itself. Prof Fuller presents this dilemma as one involving order and good order and
he argues that good order should be chosen for the reason that it is good.

8
Varier, Kartik and Mathew, Ankita Susan, Looking Beyond Hart vs Fuller – Law and Morality in Contemporary
Indian Society (October 26, 2010). Available at SSRN: http://ssrn.com/abstract=1917342 .
9
supra note 4, at P. 635.

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The Problem of Restoring Respect for Law and Justice after the Collapse of a Regime
That Respected Neither
The conflict between law and morals came to sharp focus in the predicament faced by the
German Court after the collapse of the Nazi Regime. It was not possible to declare all the laws
made by the Nazi regime and actions of citizens in conformity with such laws to be illegal.
This would have resulted in total destabilization of the society. On the other hand some of the
laws made by Nazi regime were so repulsive to human morals that there was a need for
disapproving actions taken in conformity with such wicked laws. There was also a need to send
a message that the new regime does not approve all the wicked laws of the Nazi regime 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. 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. 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.
The Moral Implications of Legal Positivism
After the war Gustav Radbruch started believing that a general acceptance of the
positivistic philosophy in pre-Nazi Germany made smoother the route to dictatorship. Professor
Hart regards this as the most outrageous of all charges against positivism. In pre-Nazi Germany
the German jurists had little respect to the Natural Law Theory discussed by The English and
the Americans. For them positivism was the only theory of law that could claim to be
“scientific” in an Age of Science. It could be reported by 1927 that “to be found guilty of
adherence to natural law theories is a kind of social disgrace”.10 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. 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.11

10
Voegelin, Kelsen's Pure Theory of Law, 42 POL. SCI Q. 268, 269 (1927).
11
Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart” (1957) 71 Harv.L. Rev. 630.

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According to him this would have helped in preserving the fidelity to law in a more ideal
manner.
The Problem of Interpretation-The Core and The Penumbra
Professor Fuller sees the problem as one of meanings of words and not an issue of core and
penumbra of law. Further he advocates that the objectives of entire provisions should be sought
rather than the meanings of individual words which are claimed to have “standard instances”.
The Moral and Emotional Foundations of Positivism
Prof Fuller is of the view that every Rule has a structural integrity. Within the limits of that
structure, fidelity to law not only permits but demands a creative role from the judge, but
beyond that structure it does not permit him to go.12

12
Leslie Green, “Positivism and The Inseparability of Law and Morals”, 83 N.Y.U. L. Rev. 1035, 1038 (2008).

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 JUDICIAL DISCOURSE IN INDIA ON CHANGING
INFLUENCE OF MORALITY
It may be interesting to examine some recent cases in India in this context. The following cases
seem relevant to the context.
1. Naz Foundation v. Government of NCT of Delhi13

In their decision, Chief Justice A. P. Shah and Justice S. Muralidhar declared Section 377 of
IPC, as it pertains to consensual sex among people above the age of 18, in violation of important
parts of India’s Constitution. “Consensual sex amongst adults is legal, which includes even gay
sex and sex among the same sexes”, they said. Thus a law which has been applied for long in
India has been recently found ultra-virus to the Constitution. Such a decision could never have
been thought of in 1950. So decisions of courts depend on the changing moral values.

2. D. Velusamy v. D. Patchaiammal14

In this case the Supreme Court decided that women who had a living in relationship with a man
can claim for maintenance under section 20 (1) (d) of The Protection of Women from Domestic
Violence Act, 2005. The lower Courts declined to grant maintenance under section 125 of
Criminal Procedure Code, to a lady who had a live in relationship with a man but was not a
legally wedded wife. The Supreme Court took note of section 2 (f) and section 20 (1) (d) of
The Protection of Women from Domestic Violence Act, 2005 and directed that the matter
should be examined in the light of these provisions. In this case it is not that the Court has made
a new lw but interpreted a new law made by the Parliament considering the changing social
values in Indian society. In the said judgment the court observed,

“In feudal society sexual relationship between man and woman outside marriage was totally
taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna
Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali
writer Sharat Chandra Chattopadhyaya. However, Indian society is changing, and this change
has been reflected and recognized by Parliament by enacting The Protection of Women from
Doestic Violence Act, 2005.”

13
Naz Foundation v. Government of NCT of Delhi, 2009 (160) DLT 27.
14
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

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 CONCLUSION
Law and Morals both lays down desirable behavior from human beings. So there is nothing
surprising that both have many elements in common. If law has to be accepted by people it
should conform to the behavior standards that people desire. These standards are decided
largely by morals. Prof Fuller is not completely off the mark, when he criticizes the positivist
approach to law. He has a point while attacking the strict positivist approach, which was evident
during the Nazi war crimes trials, where the deciding authorities were faced with the strange
paradox of having a monstrous law in one hand, while on the hand, was the defense, that the
same law was good law in the days of the Reich. And to this point, Prof Fuller’s doesn’t seem
to be only voice against the apparent flaw with the positivist viewpoint, as Radbruch, himself
a positivist, agreeing with Fuller’s view in the wake of the trials. 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. The debate is really about their own legal systems, their respective
countries, though it is misleadingly cast in universal terms. Both Hart and Fuller share the
estimable aim of articulating a coherent vision of the appropriate relationship between law and
morals and of thereby achieving a moral law. While Hart thinks this aim is best achieved by
keeping law and morals distinct and then comparing the two and seeing if the law lives up to
morals. One then knows whether it is right to obey the law. Fuller thinks it is better to require
law itself to display what he terms an internal morality so that it commands fidelity.

Both assume a society ordered in a particular way with a certain orderly legal framework and
system. Both want moral laws and assume that their laws are in the most fundamental ways

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already moral. Both have difficulty envisaging truly alien ways of thinking, the truly
incommensurable. Hart refers to the undeveloped legal system and leaves it at that. Fuller refers
to the perverted legal system but even then he cannot imagine it failing to conform to what he
takes to be the fundamental moral precepts. Thus, although much has been made of the
disagreement between Hart and Fuller, implicit in their work is a fundamental agreement on an
idea the reverse of the one they thought they were affirming: the idea of a necessary connection
between law and substantive justice.

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