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The argument about legal positivism between Hart and Fuller appears to address two very different issues: firstly, the nature of legal interpretation; and secondly, whether ‘unjust regimes’ (such as Nazi Germany) are properly understood as legal systems.  In what way or ways are these two issues related to each other? 

Legal Positivism and Its Significance

The credo of law that deals with the conformist nature of law (socially constructed) is referred to as legal positivism. The theories advanced by many positivists state that law can be synonymously interchanged with common law, positive norms, case law or norms enacted by legislators. The formal advancement of the enforcement and effectiveness of law is adequate to warrant the classification of social norms under law. Positivists do not include divine intervention, human rights or reason in their debate on law. Historically, legal positivism was developed to oppose the idea advanced by the natural law theory; moral values are also part of law.

Legal positivism was not initiated to justify the ethicality of law nor the decision to be made when the law is obeyed or disobeyed. The issues of humanity and justice are not part of the idea positivists are trying to explain. Legal positivism merely focuses on the creation of laws. This includes cases whereby judges making decisions (that are not under legal rules) in their own discretion and the decisions, later on, become law. Deciding, practicing and toleration some of the practices in law are also ways of modelling new laws. Legal positivism opposes the sociological jurisprudence and the interpretations of law which only deal with the triumphing status of the interpretation of statutes in society. This paper will focus on only two positivists (Hart and Fuller).

The Pedigree Thesis

Hart’s work on the “Concept of Law” is the most significant criticism to John Austin’s natural law theory. Hart states that Austin’s theory only aims at partially accounting for legal validity whereby people should do or not do some things even if they wish or do not wish to. Hart contradicts the belief that all legal systems must have primary rules and regulations by stating that the constraints found in criminal law portray primitiveness in the legal system. Hart views Austin’s focus on coercive forces as an overlook of the existence of a secondary mandatory rule that gives people the power to make, adjust and do away with privileges and duties of other persons. The rules that govern the formation of contracts and wills aren’t to be credibly classified as limitations to freedom supported by threats of a punishment. The said rules endow people to form their legal dealings in the interior basis of the law. Hart views this as among the greatest influences of law to social life. According to Hart, the contradicting primary rules of law reveal the sophistication of the system that regulates behaviour.

Key Arguments by Hart and Fuller

The difference between civilizations with developed systems of law and those with rudimentary laws is that developed systems have both primary and secondary rules as first order rules while undeveloped (rudimentary) ones, do not. 

“[Secondary rules] may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”

Hart has 3 different set of secondary rules that influence the changeover of rudimentary laws to complete systems of law.

The rule of recognition

This is a group rule that specifies the features which suggest that it should be supported by the pressure it exerts socially.

The rule of change

This rule allows societies to add, modify or extinguish valid rules.

The rule of adjudication

This rule provides the mechanisms for determining whether or not valid rules have been dishonoured.

According to Hart, the interpretive tests of legal principles are not the alternative standards provided for by the rule of recognition. The rule of recognition can constitute constraints and restrictions on legal validity including those that have been incorporated into the concept of morality. Soft-spoken positivists have created a set of standards that classify legal principles based on content and not by pedigree.

Hart’s view establishes that developed systems have the rule of recognition which allows for the criteria of validating laws. The rule also articulates for creating, reviewing and arbitrating law. Law is the fusion of principal and subordinate rules. Hart further outlines that Austin failed to accept the significance of secondary rules in the establishment of legal legitimacy. H. L. A. Hart disagrees with Austin’s theory that legal obligations are powerful. He further states that the principle advanced by John Austin whereby people are coerced to behave in a particular manner is not different from people being forced to hand over money by gunmen. The act of forcing people to develop a certain behaviour is not an exercise of duty or obligation.

“What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of 'ought', 'must', and 'should', and 'right' and 'wrong' in society.”

Hart’s Work: the Concept of Law

Hart suggests that the bulky population should be requested for the acceptance of the rule of recognition to be the final standard for legal authority. Many citizens do not have the general perception of how the legal structure is and the conditions for legal rationality. Hart advises that legislators should take an internal perspectives towards the criteria for legal validity. The rule of recognition should also be interpreted internally. This rule requires people to adhere to the principle rules that are legitimate and legal. Hart lays out two conditions that are mandatory and sufficient for the application of legal systems. First, he states that the valid rules of behaviour must be obeyed and also, the rules of recognition, change and adjudication must be incorporated into the common behaviours of the public.

The principle progressed by Hart is susceptible to the same reproach that he labels on the Austinian theory. Hart rejected Austin’s theory because the force of behaviour can no longer give rise to obligations; it is not different from a gunman forcing people to surrender their money. However, the situation is also not any divergent if the gunman applies the internal standpoint in issuing the threat. Even if the gunman believes that he is under command to threaten, the victim becomes obliged and not indebted to give in to the threats. The behaviour of the gunman is just as much forcible in Hart’s principle as it is in Austin’s point of view.

The officials of the minimal legal system are the only ones that have taken the internal perspective applying the rule of recognition which bestows on them the power to arbitrate, impose and execute the rules. Even though the officials believe that they are authorized to make laws which people are obliged to adhere to, the people are not obligated to comply with the enactments. The situation is similar to the gunman’s behaviour; the gunman did not have the authority to order the victim and the victim did not have any obligation to conform with the gunman’s commands.

The separability thesis emphasizes on the distinction between law and morality. The concepts between law and morality are entirely different. Any reference made to moral values when defining law or legal systems, is inconsistent with the theory of separability. H. L. A. Hart describes the thesis of separability as just simple contention and that the law need not satisfy the principles of morality. The separability thesis implies that the legal system does not have any moral constraints.

Three Sets of Secondary Rules by Hart

Hart’s discretional theory states that some cases that arise do not fall under any specific rule. The rule of recognition might then deny judges the freedom of making decisions in their own discretion. The rule requires judges to refer to some of issues not addressed by the existent laws to the law makers. Hart’s view on inclusive positivism supports Dworkin’s opinion on the rule of recognition which states that judges can make their own decision in cases where the law does not provide for the exact rules.

Hart acknowledges that the judiciary is restricted in two ways. First, the powers of judges to make decisions are limited to certain cases and they cannot be used to instigate new large-scale reforms. According to Hart, the authority that judges have when making decisions in their own discretion is not because of the absence of legal constraints to the decision-making but rather it is due to the unavailability of the correct legal answers to the cases at hand. The judges cannot apply the existing laws in their decisions since the possible outcomes could be numerous. In such circumstances, the best option for the judges is to refer the case to the legislature as opposed to making their own decisions.

There is one powerful objection that makes the discretion thesis vulnerable. When a judge makes a decision in his or her own discretion and the decision becomes law, the case will have been decided based on a law that was non-existent during the time the disagreement came about. If a magistrate grants payment of damages through a law that was instituted in his or her own discretion, the case will have been based on a non-existent law. The defendant’s right to a fair trial is thus violated. It is not fair enough that a person is punished based on a non-existent law during the time when the liability was created. The fundamental process of fairness and the doctrine of legality require that a liability constitutes an offense if the law stated so at the time the omission or act occurred. 

Fuller argues in the Morality of Law that law is subjected to 8 internal principles of morality. The principles are:

  • The expression of the rules must be done in general (not specific) terms.
  • The promulgation of the rules must be done publicly.
  • The effect of the rules must be prospective for most of the part.
  • The terms used to express the rules must be understandable.
  • The rules should not be inconsistent with each other; they must be correspondent.
  • The rules must not impose extreme conduct beyond the authority of the parties affected.
  • The subject must be able to rely on the rules; they should not be amended frequently.
  • The administration of the rules must be consistent with what is written down as the law.

Fuller articulates that no law can achieve social order if the system of rules flops to content the eight ideologies of legality. A system that does not promulgate the rules publicly and does not use understandable terms is incapable of controlling the behaviours of people. The people will not be able to determine what the law requires. According to Fuller, the internal principles have two respects in accordance with morality. To begin with, law conforms to an intended condition of social order. Secondly, it does so by valuing the independence of people in decision-making; this helps in guiding people’s behaviour. Fuller states that laws cannot conform to the principles of legality thus it is necessary that they constitute morality. Some moral values are in-built in some laws thereby creating an internal conceptualization between law and morality which contradicts the separability thesis.

Hart’s Views on the Rule of Recognition

Hart regarded Fuller’s theory as vague and that Fuller failed to distinguish between efficacy and morality.

“[T]he author's insistence on classifying these principles of legality as a "morality" is a source of confusion both for him and his readers.... [T]he crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite of the qualification ‘inner,’ is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned.”

Hart articulates that all deeds including lawmaking and poisoning, which are virtuous and impermissible respectively, have internal standards of efficacy and that they should not be mistaken for morality. Hart acknowledges that eight principles of legality are internally built in the existing law conditions.  The principles do not bring about a connection between the concepts of morality and law.

However, Fuller’s principles construe the moral ideals of fairness. The promulgation of rules publicly and in terms that are understandable is a major component of efficacy; it also doubles up as a ethical ideal. Morally, it is not right for a nation to impose rules that have not been broadcasted in the presence of the public and in understandable terms. States should not enact nor implement inconsistent and retroactive rules; rules that provide for impossible actions. Impermissible acts such as poisoning could have their internal criteria of efficiency, however, the criterions are very different from the ideologies of legality. This makes the act inconsistent with the provisions of moral ideals.

Nonetheless, the principles of Fuller do not operate as moral ideals; they operate internally as aspects of efficacy. Fuller concedes that the legal systems of nations are in consistence with substantial disparity from the eight moralities of legality. The legal conditions are promulgated publicly, but in vague terms that bring about ambiguity. Most of the times the officials also fail to fairly administer the laws in the best interest of th3e legal systems. The administration of laws is sometimes unfair and unjust to other people. The created divergences are said to be inconsistent with the legal system of a nation if they render the system incapable of executing its primary mandate of guiding the social behaviours of people.

Hart’s Discretional Theory

The eight principles of legality function as conditions of efficacy not as moral ideals thereby making them in-built conditions for law. Fuller’s legacy in advancing the theory of legal positivism intends to extinguish the implications brought by John Austin’s theory. Fuller discredited Austin’s view that the essential mandate of rules is to control behaviour. In this type of legal system, the rules are defined as guidance for intelligent creatures by other intelligent beings. The said beings that guide their peers are said to have power over them. Austin’s theory seems to advance a system that involves rulers and subjects. Austin defines law as rules set by those in power to govern people. Failure to subject to the rules leads to punitive measures. Fuller seeks to oppose these implications that are raised by the Austinian theory. 

The common unjust regime that is known to many is the Nazi Germany. The Hart and Fuller debate is the battle of ideas between two legal positivists that have laid a legacy in the world of theories and laws. This paper seeks to analyse the theories advanced by both positivists on the Nazi law. Hart did not discuss Nazi law in depth; he misrepresented the characteristics and nature of Nazi law. The implications of Nazi law were often misinterpreted; the misinterpretation was negligible to the principle issues of the debate. The debate sought to solve the dispute between positivism and natural law on the concept of law.

Hart articulates that law is a social fact which becomes valid upon public promulgation and the correct procedures outlined by the legal rules in the system; the law is thus pliable to conceptualization and nonfigurative analysis. The law contains a stable core consisting of pure legal interpretations that are not influenced by external and non-legal factors. This brans law as separable from morality and is vulnerable to application in bot immoral and moral circumstances. Law does not constantly rely on morality so as to be valid. The validity of law is non-reliant on morality. The determinants of legal validity are formal and bureaucratic structures of the legal system. This is regarded are the most accurate definition of the concept of Law. The desirable description of law is one that separates law from morality; morality be arbitrated by agents in the legal system discreetly and applied externally as a criticism to the law. Legal systems depend minimally on morality for the performance of their mandate and obligations. The dependence is brought by the fact that law and morality complement each other in prevention of violence, safeguarding property rights, and the standards of impartiality in the process of administering the law. This theory advances the idea of treating similar cases in a similar manner.

The Separability Thesis

According to Fuller, the systematic rules that give rise to laws and inspire people to follow them are regarded as moral rules. The routine rules are applied within the framework of law and reveal an inherent link between the concept of morality and law. Complying with the underlying rules is a standard for validating legal systems. Laws can therefore be unjust and will be regarded as invalid. Fuller articulates that there is an intrinsic link between coherence and morality. Legal rules that are coherent (correspondent with the principles of morality) are part of moral rules and are not susceptible to malicious purposes. A challenge on Fuller’s point of view arises when law and morality are separated; this makes it possible to recourse to formalism so as to validate the application of impermissible laws. Fuller explains that the hypothesis represents the desirable and most accurate ways of describing the concept of law. In this opinion, Fuller seeks to contrast Hart’s view on law as a social fact and non-reliant on morality.

Both Hart and Fuller refer to a case of a grudge informer. The case was about a woman who denounced her husband and reported him the authorities of the Nazi regime; she did this because the husband had negatively remarked about Hitler’s administration. The woman wanted to get rid of her husband that is why she reported him. The man was convicted and a death sentence (based on the Nazi statute law) passed on to him because his remarks had undermined Hitler’s Nazi administration.  The provincial court of appeal in FRG (Federal Republic of Germany) found the woman guilty and convicted her for depriving her husband liberty unlawfully. Hart’s point of reasoning in the first report on German courts was wrong basically because the case was erroneous. Hart stated that the court had invalidated the decision made by the Nazi law courts based on the degree of injustice. The level of injustice served to the woman’s husband was substantive. The court in FRG upheld the Nazi statutes but convicted the woman because she had personal reasons for denouncing her husband and that she knew the consequences of what she had done.

Hart and Fuller focused on ways in which a court of law can appropriately respond to situations whereby detrimental laws were applied to attain unjust intentions. The case does not offer the nature of the Nazi legal structure; it provides the arguments involved. The misinterpretation of the grudge case does not affect to conclusive argument, therefore, the unavailability of direct significance to the arguments advanced is exemplified. The tributary circumstantial case that focuses on the unjust Nazi law is not significant the major point of the discussion. This is clear based on the fact that both Hart and Fuller barely give attention to the Nazi legal system. Despite the fact that the arguments by Hart and Fuller are similar, the difference in the characteristics of Nazi law brings out the disparity. The application of Nazi law by Hart and Fuller is determined by the eagerness of both positivists to progress a claim that incorporates both legal positivism and natural law in the conceptualization of law.

Fuller’s Opinion on Legal Morality

Hart was interested in the Nazi regime in Germany because he wanted to find out why the administration emphasized on law being law and the differences between law and moral values. The first misinterpretation of the Nazi law occurred when a distinction between the concept of morality and law could not be defined. The philosophy of law being law did not make sense in the Nazi Germany. This is one of the situations whereby Hart was unable to analyse the Nazi law based on factual nature of the law. Hart asserted that the Nazi law conformed to his notion of the validity of law and that the general legal system was summarized the grudge informer case. However, the case was not referenced by any historical source thus it did not fit perfectly in the triumphing historical evidences. The Nazi law does not correspond with liberal attitudes that were evident in other states.

Fuller, on the other hand, did not focus on the Nazi legal systems; he merely listed a few principles that were applied by the Nazi regime. Fuller criticised Hart’s assumption that something the court’s decision that could still be referred to as law persisted without referring to the Nazi laws. Fuller argued that assuming that the difference between Nazi laws and English laws was Nazi laws were unjust to Englishmen, was a serious mistake. Fuller focused the nature and application of the Nazi laws subject to the case in the FRG case. However, this does not contradict the effect of the arguments advanced by both positivists in their hypothesis. This is because the consequences of the Nazi laws did not change. Hart articulated that even if the Nazi Germany shifted to a positivist approach, his stand would not change. Hart was more reliant on the intellectual and theoretical analysis of the law and not the sociological and chronological analysis. Fuller further delved into the retrospective laws and secretive laws. Fuller stated that Nazi Germany’s inescapabilty invalidated the nation’s legal systems. The regime did not follow the law and most of the time people opted to engage in street violence; the courts were more than willing to ignore the law. 

Hart methodologically strayed away from the study of Nazi Germany’s history; this proved that he had accepted the formality of their legal system. This meant that Nazi Germany’s legal system had inhabited its real core in the meaning of law and that very few cases fell out of the established legal system. Fuller seems to be in agreement with Hart’s point of view that the Nazi legal system was formal and valid; the laws were made in accordance with the laid down procedures in the legal system. Similarly, Hart is not interested in Fuller’s view that Nazi laws were substantively unfair and unjust; they had certain characteristics that were not desired and informal.

Fuller’s Eight Internal Principles of Morality

Fuller makes a misrepresentation on the connection between rationality and morality. Fuller argues that the procedures inclining to coherence (rationality) also tended towards morality thereby creating a connection between the principles of legality and the concept of law. According to Fuller, positivism is not consistent with unjust laws. However, his claim on rationality (coherence) is vulnerable to criticisms because of how he advances the idea of morality functioning in a system that applies good law.


Both Hart and Fuller advanced a claim that Nazi laws were founded on the hypothesis of law being primarily suited to democratic legal systems. They both failed to take a stand on the nature of unjust and unfair laws. However, it is evident that both Fuller and Hart agreed on the fact that Nazi laws were unjust. To conclude, Hart and Fuller are legal positivists that have divergent philosophies on the issue of legal positivism, natural law and Nazi law. 


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