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The concept of Jurisprudence relates to the philosophy of law and legal theories, while looking to obtain a greater understanding of legal reasoning, law’s nature, legal institutions and legal systems. Modern Jurisprudence embraces questions about the purpose and nature of the law as well as responses that have been made to them.

The three recognised strands of jurisprudence are Natural law, analytic jurisprudence and normative jurisprudence. Natural law made an appearance as a theory, by following the unchangeable laws of nature that the legal institutions should try to adapt. The maxim “an unjust law is not a true law” is closely associated with this theory. This theory of jurisprudence is also connected with morality. A notable theorist in this area of study is Lon Fuller.  Analytic jurisprudence provides an analysis of the essence of the law. This legal theory is concerned with the reality of a given situation rather than the hypothetical within a set of circumstances. This area of legal theory asks questions such as “what is law” and “what is the relationship between morality and law”. Important theorists in this area of study include John Austin and Herbert Lionel Adolphus Hart (H.L.A Hart). Moreover, the last main aspect of jurisprudence, is Normative Jurisprudence, which involves the examination of issues about the law and is considered with what the law ought to be in an ideal world.

More abstract questions such as “what is law” and “what is the relationship between law and morality” are the centre of attention of jurisprudential thinking. On the basis that the three main aspects of jurisprudence are already outlined, it is important to note that there has been a conflict of views that has led to debates between Natural lawyers and Positivists. 

Generally, positivists are concerned with “what the law is’ and they focus on actually identifying the law. They ask questions such as how we define a valid law, and the answer to these questions is by looking at the law itself and the observable features of the law. However, the way in which law can be described varies between positivists. For example, positivists like John Austin see law as a kind of command or order. Other positivists such as Hans Kelsen focus instead on the source on which a particular rule comes from. Despite the different opinions between positivists, the main point is that positive thinkers are concerned about describing and defining laws, and in the process of doing this purposely isolate law from other considerations and facts such as morality. However, it is important to note that positivists do not believe that law aspects like morality are unimportant or not present in law. Instead they believe that for the purpose of defining a law, morality is not necessarily a crucial part of that definition. Therefore, they detach a scientific approach based on observation. 

Natural lawyers view law differently. Despite the fact that there is more diversity in the natural law tradition there are some fundamental features of Naturalism. First of all, it is important to make clear that natural lawyers take an opposite approach to positivism. For them, morality is a fundamental ingredient of law and any theory in law has to  accommodate it. Most natural lawyers determine the validity of law not according to observation or according to its validity like positivists  do but according to its morality. Moreover, they strongly believe that an immoral law is invalid because of the fact that they see law and morality as entwined. Natural lawyers are not concerned with what the law is. Instead they are concerned with what law “ought to be”, which leads to the is/ought divide. 

David Hume an 18th century philosopher, suggested that all objects of human reason could be divided in two kinds: Knowledge of the facts and knowledge of ideas. Hume privileges, to facts and to statements that are based on concrete observation.  He stated that “the only knowledge that we can be certain of is knowledge that can be based on concrete observation. Based on what we can see or describe”. He also considered the importance of experience and observation by stating that ” The existence of any being can only be proved by arguments from its cause or its effect; and these arguments are founded entirely on experience” According to Hume you cannot derive an ”ought” statement from an ”is” statement and he finds the concrete nature of an is statement superior to ought to be. The distinction between an ought and an is statement became known as Hume’s Fork.

The opposing points of view of natural law and positivism are illustrated in one of the greater philosophical debates, known as the Hart-Fuller debate. This debate took place in the Harvard Law Review, between professors Hart and Fuller. The debate began in 1958 when Hart delivered a lecture at Harvard law school entitled as “Positivism and the Separation of law an morals” and later on was published in the Harvard Law Review.  Fuller’s article  “Positivism and Fidelity to law” (A reply to prof. Hart”) was a reply to professor Hart and it was published in Harvard law Review as well. 

The two sides engaged into a debate about their particular approaches around two events of propounded significance. The first involved the actions of a German theorist named Gustav Radbruch. To begin with, Radbruch had been a positivist thinker but he changed side as a response to the atrocities of World War II. He felt like the positivist mindset had been prominent and that the legal profession failed to protest and stand against Nazi laws. As positivists believe, law is the law and morals are separate. However, Radbruch believed that this was problematic and thought that it was contributing in allowing the nazi party to gain power and consequently positivism contributed to the horrors. Therefore, Radbruch changed his position and believed that fundamental principles of humanitarian morality were part of the concept of law. 

Secondly, they were influenced by Nazi ”grudge” cases, also known as “Grudge informer” cases. There is a particular case, which goes back to 1948 where a woman who wanted to get rid of her husband, reported to the Gestapo that her husband was insulting remarks about Hitler. The husband was convicted of slandering the Fuehrer, and sentenced to death. However, he was not executed. Instead, he was sent as a soldier on the Russian front. After the husband survived the war, he instituted proceedings against his wife. The wife argued that her husband had committed an offence under anti-sedition law of 1934 and that her husbands imprisonment was authorised by Nazi law and therefore she had not committed a crime. Despite her defence, the wife was convicted of ”illegally depriving another of his freedom” which is a crime under the Penal Code 1871, which was still in force through the Nazi period. According to the court, the Nazi laws were “contrary to the sound conscience and sense of justice of all decent human beings” 

The main question in this debate is: Is an immoral law, such as Nazi law, valid? Both Hart and Fuller take different approaches to this particular question. H.L.A Hart, as a positivist, has a relatively clear position. Law and morality are separate. Legality is one thing, morality is another. According to Hart ” Law is not morality; do not let it supplant morality”. Hart agrees that Nazi laws are wrong. It is not debatable whether Nazi laws are right or wrong. The question raised here is how we review the law. 

According to Hart, in order for a law to be legally valid, a distinction must be made between “law as it is” and ”law as it ought to be”. In a positivists view, legal validity is a matter of social fact. Hart’s concept of a legal system consists primary rules and secondary rules. The primary rules create obligations for persons and therefore regulate their behaviour. Secondary rules, allow rules to be enforced and change. Moreover, they include rules that are constitutional and procedural. There are three categories that the secondary rules can be divided into. First of all, the rule of adjudication which confers power on officials to enforce the law and to pass judgment in cases of alleged wrongs. The second category, is what Hart calls “the rules of change”, and these rules  confer the power to enact legislation in accordance to certain procedures. Thirdly, there is the “rule of recognition” which is provides the criteria for legal validity.

For a law to be valid the moral criteria is not a necessary condition and therefore Hart denies the connection between law and morality. Instead in order for a law to be valid, it has to comply to ”fundamental rules specifying the essential lawmaking procedures”, which are the secondary rules. A rule can be seen as a valid law if it acquired its legal status by following  the rule of recognition. According to Hart, Nazi law was valid because it satisfied the rule of recognition, in where the criteria of which govern legal validity of the rules of the system are contained. If a legal system is effectively in force, then it can only be said that it exists. It can be said that the rule of recognition sets out where a rule is a valid rule, and in any legal system it is considered to be the basic source of legal authority. Therefore, in Hart’s view: ” the rule of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials” If the rule of recognition is accepted then it means that the legal validity is asserted from an internal perspective which is different from the external point of view.  

Hart introduced the “internal aspect” of law in order to distinguish rules from mere habits. According to Hart, law depends on more than just external social pressures brought to bear on humans. Law depends also, on an inner point of view. In a society with no more than a set of primary rules, the members of that society must not only obey the rules but also must see the law as setting common standards of behaviour and that if someone violates the law and fail to meet those standards will be criticised. Moreover, Hart states that it is not important for citizens to have an internal point of view, because it will suffice if the officials of a legal system possess the internal aspect. For these reasons, if the rule of recognition is acknowledged and the common rules of behaviour are obeyed, not by everyone, but at least by officials then a legal system will exist, and these rules must be accepted, from the internal point of view. 

According to Hart, the validity of a law is not linked to morality. However, Hart admitted that there are some certain provisions , which are essential to a legal system, and these provisions overlap with moral principles. Hart, in his book The Concept of law, acknowledged the existence of ”minimum content of natural law”  in which he includes five features of human condition which sometimes might work against survival and thinks that every legal system must consider. Namely these are: Human vulnerability, approximate equality, limited resources, limited altruism and limited understanding and strength of will. Hart claims that these five truisms about human nature meet the “natural necessity”. Therefore, Hart accepts the existence of natural law in a certain degree and that natural principles are not completely excluded. Hart accepted the minimum content of natural law in order to provide the conditions for human and social survival.

Fuller as a natural theorist rejects Hart’s separation between law and morality. Fuller strongly believed that some essential moral elements for legal validity exist and that the acceptance of the rule of recognition as a social fact is not enough for legal validity. In his opinion, there are some moral standards that need to be satisfied. In order to keep people in ”good order” and accept the rules of legality, the law and morality must be linked. What Fuller claims, is that because of the important purpose of a legal system to contribute to good order, this constitutes a moral act, and for this reason the rule of recognition is considered to have moral elements. 

Moreover,  Fuller claimed that in order for a legal system to exist there are some criteria which need to be satisfied. In Fuller’s opinion there are two aspects of morality. The first one is external morality, which considers whether the law is right or wrong according to a given situation. The second aspect is Internal morality, where Fuller focused and built his theory around. Internal morality is often called procedural morality  because of the fact that it has a procedural aspect. Fuller focused in the inner process of the law, that comprises morality and on Fuller’s view, law is subject to a procedural morality and believes that there are “eight ways to fail to make a law”

“The rest and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are: (2) a failure to publicise, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) a failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their factual administration.”

Fuller believed that these eight principles are internal to law and therefore are necessary for a legal system. Fuller stated that  “a total failure in any one of these eight direction does not simply result in a bad system of law; it results in something that is not property called a legal system at all” Therefore, Fuller’s position on legal validity was that if the internal morality of law demands are fulfilled then a law can be legally valid.  

A significant state of disagreement had been created between Hart and Fuller about moral implications especially in relation to the regime of Nazism, where the ”wicked” legal system challenged judicial officials and ordinary citizens as well. Courts had to deal with the legal rules made by the Nazi regime after the third Reich collapsed and clear out whether those rules were legally valid or not. 

Hart, followed by his positivist thinking, wanted to strictly keep the ”law as it is” apart from what the law ”ought to be”. Hart  pointed out that ” There are therefore two dangers between which insistence on this distinction will help us to steer: the danger that law and its authority may be dissolved in man’s conceptions of what law ought to be and the danger that the existing law may supplant morality as a final test of conduct and so escape criticism” However, Radbruch viewed it differently after the Second World War. Radbruch accused positivism of creating an attitude of moral indifference among people of the legal profession towards whatever is  proposed as law and therefore provided a solution, known as the Radbruch formula which, challenges the legal validity of a law that tis extremely unjust. However, Hart is not an amoralist even though he is a positivist, he just wanted to make clear that the separation between ”what the law is” and what the law ”ought to  be” enables people on moral grounds to criticise laws and that the significance of the doctrine of separation is that it enables people to criticise laws, regardless their validity.  Following, Hart introduced the Hartian Formula in which he proposed that laws that are extremely unjust should be disobeyed. Whether to obey a law or not is not concerned with the legality of a law, and it requires standards external to law.  For Hart, the legal obligation to obey a valid law depends on people decide not to obey the law because of moral considerations not because of people not accepting the law as moral obligatory. 

In Fuller’s point of view, the separation between morality and law does not explain how it could relate to other moral duties. According to his concept of internal morality, it makes no sense to believe that there is an obligation to obey a law which is in contrary with the internal morality of law. Fuller believes that people accept the law as a ”purposeful enterprise” which on its own has  internal morality. Moreover, Fuller is concerned that Hart cannot explain why citizens may feel obliged to follow a legal rule and he criticised Hart’s rule of recognition, because of the fact that it does not conceive of the internal morality of law.

The different opinions between Hart and Fuller became very clear when they were dealing with the laws and the legal system of the Third Reich. For Hart the legal validity of the laws that had been made during the Nazi era was not in question. Rather, the reference to the Nazi era is made in order to make stronger the separation between law and morality. According to Hart, the Nazi system was a valid system, because for him legal validity was a matter of social fact, and if the rule of recognition was accepted and applied then a legal system could exist. Hart was aware of the danger that a legal system may be used by the state in order to oppress people, but he did not believe that there is a link between law and morality other that his minimum content of law. In Hart’s opinion, the denial of the legal validity of ”evil laws” makes the problem more obscured. 

Fuller, tried to show that Hart’s concept of legal validity is not adequate for facing Nazi laws. For Fuller the concept of reciprocity between government and citizens is essential in order for the law to function. Fuller, meant that people should be connected through the bond of reciprocity and have mutual demands and duties on each other. Fuller also noted that there was a ”complete willingness of the Nazis to disregard even their own enactments.” He also stated that the Nazi ”legal system” showed disregard in relation to the internal morality of law. Nazi law often passed retroactively, they were frequently bypassed or all together. Certain fundamental features of a legal system were not present. Laws need to be publicised,defended and complied with procedural requirements, like the rule of law.

The examination of the problems that the German courts had to deal with grudge informer cases is essential in order to understand these two different concepts of law. The main issue that the courts had to deal with was whether morally objectionable actions were legal under Nazi law. As mentioned in the Grudge informer case above, the courts resorted to natural law, by declaring the Nazi law invalid. Hart believed, that the judge’s decision made no sense because the law was actually in force. However, according to Hart the real dilemma, was between letting the grudge informer unpunished or punish her retroactively, which is a choice between two evils.Hart suggested a solution, which is to acknowledge that Nazi law was valid, but also too evil to be obeyed. Hart’s concept in relation to legal validity does not include any humanitarian considerations in relation to these laws that are included as essential elements of legality and therefore the judge, did not agree that the law was valid and followed moral considerations and referred to standards outside legality that were moral. Harts concept of separation could not help this case, because of the fact that it could not satisfy both concepts of morality and legality. 

However, Hart suggested that grudge informer cases or any other problematic case should be dealt with retrospective legislation to outlaw those activities. However, this could be problematic since retrospective legislation is genuinely seen as offending the rule of law and could lead to liability for actions that happened before people knew what the rules were. Hart accepts that retrospective legislation is problematic, but he argued that in such exceptional circumstances as these it could be justified. 

The rule of law is a central aspect of the British constitution. The importance of the rule of law was emphasised  in the ”Interview with Lord Bingham, On the Rule of Law ”(for the British Institute of International & Comparative Law). Lord Bingham stated that the rule of law is the best chance that we have in order to guarantee a good government. Retrospective laws are in contrast with the rule of law. However, in any event, the capacity of the courts to protect the individual from the actions of the state are necessarily curtailed by the Parliamentary sovereignty. In fact parliament has on occasions passed retrospective law to negate and reverse the ruling of the courts. As Hart pointed out, retrospective laws could repeal Nazi laws and declare their acts criminal since Hitler’s regime was exceptional. In fact, they were certain laws in the Nuremberg trials, for example crimes against humanity, that they were applied retrospectively in order to punish Hitler’s accomplices.This concludes to the fact that there is no absolute prohibition on the retrospective enactment of criminal laws. 

In conclusion, on the one hand, Hart believed that there was no actual connection between law and morality since a legal system can function without being either just or moral. It his view, the Nazi regime was in fact a legal system since the Nazi’s argued that the racial distinctions made reflected morality in their society. On the other hand, Fuller believes that law and morality cannot be distinguished and that Nazi laws were not valid since they were lacking the “internal aspect” requirement. However, the one thing that Hart and Fuller agreed upon, was that legal systems that are unjust and immoral could not last for long.