WEEK 1
HART – FULLER DEBATE
Lecture 1
Aims of the course:
Everyone already has jurisprudential philosophy, this course is to enhance your understanding of
what kind of framework you use to make your decisions and the sort of arguments that tend to be
more acceptable. It's about conceptual distinctions and intellectual connections as well as writing
style. There’s a huge emphasis on choice of words, and how to improve your expression and
writing style.
HART-FULLER DEBATE
The focus in both these texts must be on the nature of the connection between law as a concept
and morality as notionally separate. Do not focus too much on the aspects dealing with legal
reasoning.
Jurisprudence can be understood as the study of the question of the connection between law and
morality, and of the legal adjudication. So what we are tryiing to understand is this thing of law vs
morality as an everday discourse. Are they the same thing? Are they different? What makes
them different?
What are we doing when we’re applying underlying principles that only lawyers can understand?
Or are we simply deciding winners and losers? Bsaically, we’re trying to understand hwat is teh
disctintivenes sof law nad the legal way of thinking vs other ways of thinking? WHat sthe
difference between law, religion, politics, etc. The whole purpose of jurispurdence will be focused
on those two broad uquesions.
What Hart and Fuller were trying to answer is the first question: What is the question between
law nad morality?
, • This matters, academically, because it helps us decide what are true statements of law.
It helps us distinguish the criteria we use to decide whether what someone is saying is
law or if its something else.
• Fuller and hart are trying to engage with this academically – on the one side, are these
the words of the statute. On the other side it depends on the moral claims they’re making
– the content of what they are saying is...eg a statute can violate the constitution and is
then not the law.
• The political and practical reason why we have this debate is because of the time they
were writing – it was right after the Second World War when we had all these atrocities
happening by all these world powers. The question of the kind of thing law is created the
question of legitimate regimes.
For example, the crimes committed by Nazis – they tried saying that they were just
following the law.
• So the key question for Hart and Fuller is, is that claim true? And what do you mean when
you say that you’re just following the law?
• Secondly, they both take some inspiration from apartheid South Africa when they were
also just following the law too.
• So what do we do about regimes that look like they’re just following the law and what do
we do about regimes that justify them following the law?
So in this first lecture we’re quickly gonna summarise what their claims are.
HART’S ARGUMENT INTRODUCTION:
Professor of jurisprudence gave a Webber Horns lecture – it was the first time that an english
person had ever been invited to give this lecture. And he decided to tackle this topic. The reason
why he wanted to talk about this is because he fought in World War 2 – and he had to answer
why he followed orders while serving in intelligence.
His basic answer is: It's absolutely necessary to make a distinction between what the law
is and what the law ought to be.
• The central confusion in modern thinking about the law is that people often think that the
law is what it ought to be – its in accordance with their own moral convictions. So when
, people say that something is against the law, they are confused about that's what the law
is vs this is what i want the law to be.
• The whole point of this lecture is to dispel that confusion.
• Hart thinks, instead, we need better and sound criteria on what the law is so that we aren't
led astray when the law is something different.
• The ought to be for Hart is when we think the law should reflect a moral claim. He
makes this argument not because he thinks that morality is relative, but rather because
he thinks when evil regimes claim the authority of law it tends to claim the compliance of
its citizens easily and put it into legislation to legitimatize it for example.
When we have this confusion we never really ask “is this law good or bad?”...and
we can’t get to that debate because we’re so stuck on whether this is the law or
not and because they wrap up parts os the second debate in the first question.
FULLER’S RESPONSE INTRODUCTION
Fuller at the time was the Dean of Harvard Law, and his response is that he fully accepts that
there is a distinction between what the law is and what the law ought to be. BUT in determining
what the law is, you must necessarily look to moral criteria, you are not just reading the
provisions of a statute. He will explain what that moral criterion is.
He says that Hart is wrong to assume that our ability to understand the law does not appeal to
morality.
The reason for these claims is because there is no bigger example of societies that did not take
seriously the INNER MORALITY of law than societies like nazi germany or apartheid south africa.
So it's not that lawyers couldn’t think that law has something to do with morality, it's just that they
couldn’t identify what was their unique morality of the law.
• For example, we are all engaged in moral practices. Think teaching – the way someone
teaches has certain expectations (a teacher is trained, if you have a reasonable complaint
they can accomodate you, they are prepared for lectures, etc.). But now if you expect
these moral practices to a romantic partner – it would be a whole different story.
• Inner morality: So for Fuller, this is the mistake we have made – we have confused the
different standards that apply in morality for law with maybe our religions, our politics...and
, then we get surprised that when we don’t hold to the unique morality of the law we get bad
governments.
For fuller its not because our religions or politics are bad, its because we corrupt
that unique morality of the law.
It is out failure to understand the unique morality of the law that allows regimes like
Nazi germany to come into existence and to corrupt the law – and to wear the
mask of the law.
For Fuller, the types of arguments that Hart is making are the type of ones that
cause to this confusion.
According to Fuller, Hart's failure to understand the unique morality of the law, and his denial that
law has any connection to morality that adds to the confusion.
Hart Fuller
Saying that we need to understand the
We will have better clarity if we can keep two
connection between law and morality better to
sources of law and morality separate.
get clarity on our main question.
The source of their disagreement is that one thinks we will have better clarity if we can keep these
two sources of law and morality separate. The other one is saying that we need to understand
the connection between the two better – then our confusion will be cleared.
LECTURE 2
HART’S ARGUMENT ON POSITIVISM
Hart’s claim is that our confusion is that we cannot keep law and morality sepaate. HE has claimed
that this leads to two kinds of responses. First one he calls he a Reactionary (authoritarian) which
is the assumption that the law is exactly what it ought to be.
• There’s an assumption with authoritarians that people have to obey the law just because
the law claims X or Y.
HART – FULLER DEBATE
Lecture 1
Aims of the course:
Everyone already has jurisprudential philosophy, this course is to enhance your understanding of
what kind of framework you use to make your decisions and the sort of arguments that tend to be
more acceptable. It's about conceptual distinctions and intellectual connections as well as writing
style. There’s a huge emphasis on choice of words, and how to improve your expression and
writing style.
HART-FULLER DEBATE
The focus in both these texts must be on the nature of the connection between law as a concept
and morality as notionally separate. Do not focus too much on the aspects dealing with legal
reasoning.
Jurisprudence can be understood as the study of the question of the connection between law and
morality, and of the legal adjudication. So what we are tryiing to understand is this thing of law vs
morality as an everday discourse. Are they the same thing? Are they different? What makes
them different?
What are we doing when we’re applying underlying principles that only lawyers can understand?
Or are we simply deciding winners and losers? Bsaically, we’re trying to understand hwat is teh
disctintivenes sof law nad the legal way of thinking vs other ways of thinking? WHat sthe
difference between law, religion, politics, etc. The whole purpose of jurispurdence will be focused
on those two broad uquesions.
What Hart and Fuller were trying to answer is the first question: What is the question between
law nad morality?
, • This matters, academically, because it helps us decide what are true statements of law.
It helps us distinguish the criteria we use to decide whether what someone is saying is
law or if its something else.
• Fuller and hart are trying to engage with this academically – on the one side, are these
the words of the statute. On the other side it depends on the moral claims they’re making
– the content of what they are saying is...eg a statute can violate the constitution and is
then not the law.
• The political and practical reason why we have this debate is because of the time they
were writing – it was right after the Second World War when we had all these atrocities
happening by all these world powers. The question of the kind of thing law is created the
question of legitimate regimes.
For example, the crimes committed by Nazis – they tried saying that they were just
following the law.
• So the key question for Hart and Fuller is, is that claim true? And what do you mean when
you say that you’re just following the law?
• Secondly, they both take some inspiration from apartheid South Africa when they were
also just following the law too.
• So what do we do about regimes that look like they’re just following the law and what do
we do about regimes that justify them following the law?
So in this first lecture we’re quickly gonna summarise what their claims are.
HART’S ARGUMENT INTRODUCTION:
Professor of jurisprudence gave a Webber Horns lecture – it was the first time that an english
person had ever been invited to give this lecture. And he decided to tackle this topic. The reason
why he wanted to talk about this is because he fought in World War 2 – and he had to answer
why he followed orders while serving in intelligence.
His basic answer is: It's absolutely necessary to make a distinction between what the law
is and what the law ought to be.
• The central confusion in modern thinking about the law is that people often think that the
law is what it ought to be – its in accordance with their own moral convictions. So when
, people say that something is against the law, they are confused about that's what the law
is vs this is what i want the law to be.
• The whole point of this lecture is to dispel that confusion.
• Hart thinks, instead, we need better and sound criteria on what the law is so that we aren't
led astray when the law is something different.
• The ought to be for Hart is when we think the law should reflect a moral claim. He
makes this argument not because he thinks that morality is relative, but rather because
he thinks when evil regimes claim the authority of law it tends to claim the compliance of
its citizens easily and put it into legislation to legitimatize it for example.
When we have this confusion we never really ask “is this law good or bad?”...and
we can’t get to that debate because we’re so stuck on whether this is the law or
not and because they wrap up parts os the second debate in the first question.
FULLER’S RESPONSE INTRODUCTION
Fuller at the time was the Dean of Harvard Law, and his response is that he fully accepts that
there is a distinction between what the law is and what the law ought to be. BUT in determining
what the law is, you must necessarily look to moral criteria, you are not just reading the
provisions of a statute. He will explain what that moral criterion is.
He says that Hart is wrong to assume that our ability to understand the law does not appeal to
morality.
The reason for these claims is because there is no bigger example of societies that did not take
seriously the INNER MORALITY of law than societies like nazi germany or apartheid south africa.
So it's not that lawyers couldn’t think that law has something to do with morality, it's just that they
couldn’t identify what was their unique morality of the law.
• For example, we are all engaged in moral practices. Think teaching – the way someone
teaches has certain expectations (a teacher is trained, if you have a reasonable complaint
they can accomodate you, they are prepared for lectures, etc.). But now if you expect
these moral practices to a romantic partner – it would be a whole different story.
• Inner morality: So for Fuller, this is the mistake we have made – we have confused the
different standards that apply in morality for law with maybe our religions, our politics...and
, then we get surprised that when we don’t hold to the unique morality of the law we get bad
governments.
For fuller its not because our religions or politics are bad, its because we corrupt
that unique morality of the law.
It is out failure to understand the unique morality of the law that allows regimes like
Nazi germany to come into existence and to corrupt the law – and to wear the
mask of the law.
For Fuller, the types of arguments that Hart is making are the type of ones that
cause to this confusion.
According to Fuller, Hart's failure to understand the unique morality of the law, and his denial that
law has any connection to morality that adds to the confusion.
Hart Fuller
Saying that we need to understand the
We will have better clarity if we can keep two
connection between law and morality better to
sources of law and morality separate.
get clarity on our main question.
The source of their disagreement is that one thinks we will have better clarity if we can keep these
two sources of law and morality separate. The other one is saying that we need to understand
the connection between the two better – then our confusion will be cleared.
LECTURE 2
HART’S ARGUMENT ON POSITIVISM
Hart’s claim is that our confusion is that we cannot keep law and morality sepaate. HE has claimed
that this leads to two kinds of responses. First one he calls he a Reactionary (authoritarian) which
is the assumption that the law is exactly what it ought to be.
• There’s an assumption with authoritarians that people have to obey the law just because
the law claims X or Y.
