Hart And Fuller Debate Analysis

The Hart-Fuller debate published in the Harvard Law Review was a first attack to Fuller’s theories by Professor Hart, an influential positivist at the time. He brought up the case of Apartheid as mentioned above and also the problem of the Nazi Regime, contending that both of the legal system contains valid laws on a positivist view. Fuller rejects this argument by saying they were using law as an “instrument of an arbitrary and tyrannical dictatorship” and such laws should be considered invalid. These views are then shown further when Hart discussed on the dilemma of “The Grudge Informer” proposed by Fuller. The Grudge Informer tells a fictitious story of a state newly overturned from an unethical regime, one that bears resemblance with the …show more content…
It was law at the time of the unethical regime to give death penalties for such crime, but after the state has been overthrown, the wife has been captured for telling on her husband. She argued that she was not guilty as it was law at the time, but was otherwise convicted as the statute that was based under breaches the “the sound conscience and sense of justice of all decent human beings”. Hart responded by presenting a choice of a more logical solution to him, which is to let the wife go unpunished, or apply a retroactive law to punish her. Both have great consequences attached to it as the former would be seen as condoning morally wrong laws while the latter breaches the doctrine of “law cannot be implemented retroactively”. Fuller doesn’t see this as a dilemma at all as he stays with his point of unjust laws are no law at all and I think that this can bring problems to the integrity of law as it gives an impression that any law that is not moral (subjectively) can be …show more content…
He draws an example of “morality of poisoning” in which there lies a procedure in order to ensure an efficient way of poisoning someone and when followed achieves the purpose of doing it. However, poisoning is not a moral act by majority, so to say that if a certain procedure is set out for the good of a purpose, that purpose may not be a moral one. Therefore, there is no feasible link between morals and the eight principles of legality Fuller proposed. Fuller then responds with a rather confusing rebuttal, relating to the discussion of the Apartheid, he insisted that the principle of legality in the society was breaking because of the constant violation of the inner morality of the law and also the substantive immorality of it. This suggests that the violation of external morality of law is also violating the inner morality of law, which blurs the distinction between both moral foundations of law that he did in the first place. If the former affects the latter or vice versa, then it can be concluded that there is no such significance between their