HART-FULLER DEBATE ARGUMENT (TRANSCRIPT) –Hart (Positivist) and Fuller (Naturalist)Learning objectivesa)Law and Morality.b)Hart Fuller Debate.c)Three critiques of Legal Positivism.d)Problem of the Penumbra.e)Concept of Law – fixing the command problem.Law and Morality-Positivist – law is simply “what is’ and morality – whatought to be.-What the law is fundamentally about is a separation betweenwhat is and what ought to be. In other word, legal system is afree-standing system of what is and it does not need to pointbeyond itself to some other conceptions, some other moralsystem, theological system or what have you in order tojustify its independent and autonomous existence andvalidity.-Natural law however rejects law which is not moral, theythink that the law is based on something beyond the legalsystem and that is specifically morality.-This lead to legal theoretical argument between positive legaltheory and natural law theory.oThis debate is urgent to us to solve is in a situationlike the clearly unjust laws that were in place duringthe Nazi Holocaust in WW2. This highlights theproblem the reality of the debate.Hart Fuller Debatea)Background-H.L.A Hart – legal positivist and Lon L. Fuller – natural lawtheorist.-They engaged in a lengthy debate between these twotraditions of jurisprudence.-It began when Hart published in the Harvard Law Journal1958 a paper entitled “Positivism and the Separation of Lawand Morals”.-Fuller replied in the same journal with an article “Positivismand Fidelity to Law a Reply to Prof. Hart”.
-Hart wrote the concept of law a major book outlining legalpositivism in its 20thcentury.-Fuller replied with another book “Morality of Law”reinstating the need to maintain the natural law position inspite of the growing popularity of positivism.Three Critiques of Legal Positivism-Austinian theory of law as command is completelyinadequate.oIn other word, John Austin one of the great positivistand the student of utilitarian philosopher JeremyBentham proposed legal positivism in the sense thathe gave a definition of law that was completely self-standing.oDefinition of law he suggested as the law is acommand issued by the sovereign with a threat ofsanction or punishment which people are generallyobedient to.oFour concept law as command;I.Command conceptII.Sovereign conceptIII.Sanction and punishment conceptIV.Obedient concept.oThere is no scope of morality in this definition. Wedon’t need God, morality and anything else beyondthe legal system to understand the nature of law.-Problem of Penumbra.oIt refers to some sort of looming or shadow. Umbra isLatin for a shadow or cloud so Penumbra is sort oflooming problem.