Legality and Morality

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Recommended: The Relevance of Positivism to the Legal Development Today

1 Introduction

The aim of this essay is to differentiate between law and morality, and to discuss whether there is an overlap between the two concepts. I will be making reference to theorists of both positive law and natural law, namely H. L. A Hart and Lon L. Fuller respectively and compare the two views on the above question. For the purpose of understanding, I will apply the two theories to the legal system in Nazi Germany.

2 Law and Morality

H. L. A. Hart

As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.

The rule of recognition can be used to explain this more clearly. Hart stands firm that the fulfilment of moral criteria is not needed in order for a law to be valid and denies the fact that there is a connection between law and morality. He states that in order for a norm to be legally valid, it has to observe ‘fundamental rules specifying the essential law-making proce...

... middle of paper ...

...riate and critical analysis of the law.

Personally, Fuller’s idea of a legal system seems more plausible as he does not attribute legal validity in a binary fashion and there is room for moral criticism of the law. Law does not seem absolutely distinct from morality when applying it to examples such as the above debate. It is also more reasonable to assume that morality is used when forming legal rules.

Works Cited

1. H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 613
2. H L A Hart The Concept of Law (Oxford, 1961) 83-84
3. H L A Hart, The Concept of Law 2nd edn (Clarendon Press, 1994) 210
4. Joseph Raz The Authority of Law (Oxford, 1979) 150
5. L L Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 639
6. L L Fuller The Morality of Law (New Haven and London, 1964) 146

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