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The Hart-Fuller Debate E-mail this Search On Page:

by Justice Markandey Katju† Comments GO
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Natural law theory holds that along with the positive   Search Archives
law there exist certain ideal principles or values to
which the positive law should correspond if it is to be   Search Case-
regarded as genuine law. Thus, while positivism Law
holds that to be valid law, all that is required is that it   Search
should issue from a competent legislator after Bookstore
following the prescribed process, natural law theory   Search All
requires in addition that such law, to be valid, must
conform to some ideal principle (which may emanate
from morality, reason, God, or some other such
source).

The Hart-Fuller "debate" illustrates the opposing   Subjectwise Listing of

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points of view of positivism and natural law,
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particularly in the context of Nazi laws.*   Chronological Listing of
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The "debate" began when Hart published his Holmes Internet
Lecture (entitled Positivism and the Separation of   More Articles...
Law and Morals) delivered at Harvard Law School in
April 1957 and published in Harvard Law Review in
1958. The reply was given by Fuller in his article   Hart's Concept of Law
"Positivism and Fidelity to Law - A reply to Prof. and the Indian Constitution

Hart", also published in 1958 in Harvard Law Review.   The American Bar
Association
  The Patents (Second
Hart's rejoinder was in his book The Concept of Law, Amendment) Bill, 1999 - An
to which Fuller replied in the first edition of his book Analysis

The Morality of Law. To this Hart gave his reply in   Effects of Adoption -
Some Unsolv ed Issues
1965 in Harvard Law Review. Fuller replied in the
  Dr Ambedkar and Ar ticle
Second (Revised) Edition of The Morality of Law, 356 of the Constitution
published in 1969.   Decision of the Supr eme
Court in S.R. Bommai v .
Union Of India: A Critique
This ding-dong, inconclusive series of repartees and
rejoinders led Cotterrell to remark in his book The
Politics of Jurisprudence:

"There is often a sense that in the battle of arguments

no one ever wins, and further that there are no
reliable criteria by which one could recognize victory
anyway. The disputes seem timeless, the issues never
resolved. Decade after decade positivists and natural
lawyers face one another in the final of the World
Cup. Victory goes now to one side, now to the other.
The legal theorist can only cheer or jeer, label his   Regulation of Defamation
opponent a moral leper or a disingenuous romantic." over the Internet :
Jurisdictional Issues

It is submitted that the theory of dynamic   Third Party Inter vention

in Criminal Litigation
positivism** really puts the debate to an end.
  Appointment of Non-
Member of P arliament or
Dynamic positivism certainly supports Hart's view State Legislatur e as
Minister — Scope
that Nazi laws were also laws (though wicked laws).
  Children — Supr eme
But the reasons which dynamic positivism gives are Asset of the Nation
deeper and more consistent than those of Hart.

A typical example considered in the Hart-Fuller

debate was of the wife of a German who reported
her husband to the Gestapo for criticizing Hitler's
conduct of the war. The husband was tried and
sentenced to death, but his sentence was converted  
to service as a soldier on the Russian front. The
husband survived the war, and after the war
instituted legal proceedings against his wife.

The wife's defence was that her husband had

committed an offence under a Nazi statute of 1934.
Post-war Germany, however, held the wife liable.

Hart argued that the decision of the court was wrong,

as the Nazi law of 1934 was a valid law (as it satisfied
his "rule of recognition"), whereas Fuller contended
that the Nazi regime was so "lawless" that nothing
therein could qualify as law.

The basic principle of Nazi law was laid down in the

Enabling Act of July 12, 1934 passed by the German
Reichstag which amended the German Constitution
by permitting Hitler to issue decrees inconsistent
with the Constitution, including decrees passing the
budget, making treaties, and even amending the
Constitution. As declared by Goering to the Prussian
prosecutors on July 12, 1934 "The Law and the will of
the Fhrer are one".

The nature of Nazi justice has been described in

William Shirer's The Rise and Fall of the Third Reich,
under the heading "Justice in the Third Reich" (at p.
369). Nazi racial laws regarded Jews as inferior
beings and treated them inhumanly. There was total
arbitrariness and terror during Hitler's rule; the
Gestapo being empowered to arrest, torture or even
kill any person without any charge or trial.
Ultimately 6 million Jews were murdered in gas
chambers, apart from the other atrocities committed
by the Nazis.

Now Germany had been industrialized long before

Hitler came to power. Democracy and the rule of law
are necessary concomitants of an industrial society.
This is because:

(1) Industrial society is based on science, and science

is based on the study and application of objective
laws. Industrial society simply cannot function on
the basis of arbitrariness, and there has to be the rule
of law, otherwise the productive processes in such a
society will be disrupted. Arbitrariness and
whimsical orders are totally antithetical to the
functioning of an industrial society.

(2) Industrial society is democratic society. There can

no doubt temporarily be dictatorial governments in
an industrial society (e.g. Nazi rule), but these will
necessarily be short-lived aberrations, and society
during such a period will not function smoothly but
fitfully.

We can now bring the Hart-Fuller debate to a close.

Hart is right, Nazi laws were certainly laws, but such

laws were wholly inconsistent with the mode of
production in industrial society (which stage
Germany had reached long before Hitler came to
power), and with the social relations engendered by
such a mode of production.

Hitler's regime in fact could not have lasted long, as it

was based on features which disrupt industrial
society e.g. arbitrariness and terror. In fact Hitler's
regime would have collapsed much earlier than it
did had it not received the support of Chamberlain
and Daladier.

Hitler turned the German economy into a war

economy1. Massive rearmament could only lead to a
parasitic economy relying on wars of conquest, slave
labour and stolen goods (from conquered countries).

Thus Hitler tried to turn Germany into a nation in

some respects similar to ancient Rome which
conquered many nations to obtain slaves and tribute
(much of the grain distributed practically free to the
Roman populace was forcibly taken from Egypt). But
slave society had perished with the Roman Empire
1500 years ago. To turn the clock back and try to
restore it was impossible. Slavery is wholly
inconsistent with modern industrial society (in fact it
is inconsistent even with feudal society).

Hence Hitler's laws were wholly inconsistent with

historical development in Europe. In attacking Jews,
Hitler tried to throw Germany back into the middle
ages. Hitler came straight out of a museum into the
modern world. However, the laws he made, though
hideous and monstrous, were certainly laws, as they
were in accordance with the Enabling Act passed by
the Reichstag.

The anxiety of natural law thinkers like Fuller is that

unless Nazi laws are treated as non-laws, those who
perpetrated atrocities under the Nazi regime could
escape punishment.

However, as pointed out by Hart, retrospective laws

could have been framed after the Second World War
retrospectively repealing Nazi laws and
retrospectively declaring the acts of perpetrators of
such atrocities as criminal.

No doubt retrospective criminal statutes are

ordinarily frowned upon, but Hitler's regime was
exceptional. In fact in the Nuremberg trials, certain
laws, e.g. crimes against humanity, were applied
retrospectively to punish Hitler's accomplices. Hence
there is no absolute prohibition on the retrospective
enactment of criminal laws, and this should certainly
have been done in the case of the Nazis.

Fuller says that a law to be a law must have "inner

morality".

But where does morality come from? It arises from

the mode of production. The ancient Greeks and
Romans found nothing immoral in slavery (except
stoics like Seneca, who were really on the fringe of
ancient Roman society, and not in its mainstream,
and really belonged intellectually to the subsequent
Christian era). But today everyone regards slavery as
immoral. Thus any law which reflects the social
relationships of a slave society or feudal society will
today be regarded as immoral or unjust.

The Nazi regime was certainly immoral, but it was

immoral because it was totally inconsistent with the
mode of production of modern industrial society and
the social relations and values which such a society
engenders. Unless one grasps this point clearly the
Hart-Fuller debate will go on endlessly.

Hart becomes inconsistent when he concedes a

"minimum content of natural law" (see Hart's The
Concept of Law) in which he includes (1) human
vulnerability, (2) approximate equality, (3) limited
resources, (4) limited altruism, and (5) limited
understanding and strength of will. Thus Hart
practically concedes the existence of a certain degree
of natural law. But it could easily be pointed out that
"natural law" is merely the norms which have to be
followed for the smooth running of a society at a
particular stage of its historical development. Slave-
holding societies, e.g., ancient Greece and Rome,
regarded slavery as natural, feudal society regarded
serfdom and aristocratic privileges as natural, while
industrial society regards equality as natural. Thus
what is "natural" depends on the mode of production
at a particular stage of historical development.

Once this basic concept is grasped, all the talk of

Fuller (and even Hart) that there must be a
"minimum degree" of morality in law in order that it
may qualify as law goes up in smoke.

The "minimum morality" idea is bound to land us in

difficulties. What is that minimum? This itself is hazy
and uncertain. Different persons may have different
views about it, and it is bound to be different at
different stages of historical development. Hart
mentions five features of minimum morality, and
Fuller conceives of eight. Others may conceive of
dozens.

It is submitted, that both Hart and Fuller, insofar as

they require a "minimum morality" in law, are in
error. That is not to say that laws cannot be immoral,
but that immorality does not disqualify them from
being law. "Minimum morality", it is submitted, is
nothing but the conformity of the law to the stage of
historical development a particular society has
reached, so that society may function smoothly.

Are we then to define law as a set of rules made for

the smooth running of society at a particular stage of
historical development in conformity with the mode
of production of that stage?

The difficulty with this definition is that it does not

take note of the fact that the law often lags behind
social development (as happened in pre-
revolutionary France or pre-revolutionary Russia).
There can be reactionary laws which throw society
backwards. Also, as dynamic positivism advocates,
laws can be ahead of social development in order to
guide society forward.

The "revival" of natural law was only a temporary,

emotional reaction to the atrocities of the Nazi
regime, but it had no scientific basis. As pointed out
by the author in his book Law in the Scientific Era,
natural law is unacceptable in the scientific era,
which relies more and more on positive law (see the
chapter entitled "Natural Law in the Scientific Era").
In fact, despite the gallant effort of Fuller and that of
others (which reminds one of Don Quixote), very few
persons rely on natural law today. The "revival of
natural law" collapsed within two decades of the end
of the Second World War.

We can certainly say that certain minimum rules are

required in a society for its smooth functioning at a
particular stage of its historical development. But we
need not resort to the mystical concept of "natural
law" for that purpose. There are often deviations
from these minimal rules e.g. arbitrariness and
whimsical orders in modern society, and these
disrupt the productive processes and social relations
in society. The remedy for this is amendment of the
law and insistence on legality, and not a resort to
natural law.

For the validity of a law we therefore go back to

Hart's rule of recognition, from which Hart has
himself deviated by requiring in addition to the rule
of recognition a minimum morality for a law to
qualify as a law.

Hart's rule of recognition, in simple language, says

that a law to be valid must be made in accordance
with the Constitution of a country (whether the
Constitution is written or unwritten).

This rule of recognition is somewhat different from

Kelsen's grundnorm, which in most countries can be
identified with the Constitution itself.

Whether we go by Hart's theory or Kelsen's, in either

case we see that the entire legal system rests on the
Constitution. But where does the Constitution come
from?

The Constitution is a product of certain historical and

political developments, and these in turn are heavily
conditioned by social and economic factors. Classical
positivism does not go beyond the Constitution,
dynamic positivism goes beyond it, and studies the
historical, social and economic forces behind the
Constitution and the other laws.

In conclusion we may ask whether there is no place

for idealism in the legal system. Classical positivism,
of course, finds no place for it, but dynamic
positivism has tremendous idealism, not by relying
on natural law but on the basis of scientific
understanding.
As mentioned in Law in the Scientific Era, dynamic
positivism aims at guiding society forward on
scientifically planned lines. It studies the historical
trend in society, and aims at peacefully helping social
advance. The legislator in a scientific society is
therefore a person who is both scientific as well as
idealistic. His idealism is however not utopian. It
does not proceed from some a priori, innate ideas,
but from a scientific study of society's objective
historical patterns and processes, the aim of such
study being to peacefully guide society forward in
history. Only a person who is genuinely sincere,
compassionate, full of love for his fellow human
beings, and filled with a strong desire to abolish
suffering can be a dynamic positivist, though of
course he must also have scientific understanding.

†     Judge, Allahabad High Court Return t o Text

* Mention has been made of this debate in the author's book Law in
the Scientific Era, at p. 65 of that book. The history of the "debate" is
mentioned in the Revised Edition of Fuller's book The Morality of
Law (in Chapter V, "A Reply to Critics"). Return t o Text
** This theory has been propounded by the writer in his book Law in
the Scientific Era published by Universal Law Publishing Co. Pvt.
Ltd., Delhi. Return t o Text

1. See William Shirer's Rise and Fall of the Third

Reich, under the heading "The Economy of the
Third Reich", at p. 357. Return t o Text

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