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Avindra RamnauthThe Hart-Fuller debateWhen did the Hart- Fuller Debate begin?This began in the 1950’s where the effects of world-war 2 wasstill being felt. It was felt that the extreme positivist view was mainly responsible for the injustice andatrocities of the Third Reich.What question was discussed as part of the debate?The question , should morality be separated fromlaw? was contested again.What was Fuller’s response?Fuller’s response was no, Fuller contended that law cannot be separatedfrom morality, it is built into our legal principles.What did Fuller’s test propose?Fuller proposes a testfor the law, a moral test, however if it passes through that test and fails to be functional then it shouldnot be called law at all.What did Fuller define law as?Law (defined by Fuller)is a particular way of achieving social order byguiding human behavior according to rules.What did his test reflect?His test reflects what he calls the inner morality of law.What are the 8 principles of legality?There are 8 principles of legality, however varying degrees ofvalidity and functionality will determine where on the scale of morality that law stands, these are:1. laws should be general;2. they should be promulgated, that citizens might know the standards to which they are being held;3. retroactive rule-making and application should be minimized;4. laws should be understandable;5. they should not be contradictory;6. laws should not require conduct beyond the abilities of those affected;7. they should remain relatively constant through time; and8. there should be a congruence between the laws as announced and their actual administration.What does Fuller contend? I am sure you can agree that a wicked system can pass through this test,however Fuller does not contend that all laws be moral, it is a scale of morality. He manages to puttogether a test that can be applied to legal systems differently, simply put, one country’s system may beevil but still law, another country may be higher up on the scale of morality.
What did Fuller question?This can be questioned as Fuller already mentions that if this morality wascompletely eradicated then it should not be called law in the first place, why now is he contending thateven though it lacks moral character it is still law?What was Hart’s view of Law and morality?Harts view: Law is separate from morality, it is more whatthe lawisthan what itoughtto be. Similar views were shared over centuries and can be traced all theway back to Hobbes, who believed the law should be laid down by a sovereign.Do judges make law?The answer is yes for Hart, given a penumbra case a judge will find it difficult toapply the law in its bare sense, it must be done in context so they adopt new rules that fit in with thelaw, if they go too far however it would raise obvious questions. A judge can also follow examples listedin the guidelines which can sometimes be non-exhaustive. Hart thinks that law has many gap areas.