(This article is in two parts. Part I outlines a few of the elements of the famous Hart-Fuller debate, touching on the relevance of the debate to the events playing out in Eastern Europe (Ukraine and Russia) in the recent past. There are parallels to be drawn between laws enacted in Hitler’s Germany during the 1930s and laws enacted in Putin’s Russia during the 2020s. This part of the article places the key emphasis on HLA Hart’s position. In Part II, the emphasis is upon Lon Fuller’s response to Hart’s position. And, in taking stock of the lessons to be learnt from the Hart-Fuller debate viewed in its entirety, some pointers to the moral dilemmas and difficulties posed by laws judged to be immoral or repressive (or inherently destructive of human or natural rights) are briefly explored.)
Recent events in Eastern Europe are a reminder of a shadow cast from a darker era which the international community, not much more than one year ago, might have believed had been consigned to history. Lately, the Russian Federation has introduced a law designed to criminalise the spreading of false information (or so-called ‘fake news’) by journalists and others concerning the Russia-Ukraine conflict. The offence is reportedly punishable by a prison sentence of up to 15 years. Nearly 80 years ago – in 1944 – the wife of a German soldier, wishing to be rid of her husband, reported to the authorities that her husband, whilst home on leave from the German army, had made derogatory remarks about Hitler’s conduct of the war. He was charged under laws of 20 December 1934 and 17 August 1938 making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defence of the German people. He was convicted and condemned to death but was ‘reprieved’ and sent to the eastern front. The intensity of fighting at the front was such that many German soldiers would have regarded being sent there as almost equivalent to a ‘death sentence’.
The parallels between the situation in Germany in 1944 and the situation in Russia in 2022/23 are undeniable, but arguably raise more profound questions about the differences discernible between those two eras. One key difference is that, whereas in the 1930s and 1940s, laws such as the Nuremberg Laws had been implicated in the commission of arguably the single most egregious crime in history – a ‘crime without a name’, as Winston Churchill called it as early as 1941 – the position today is that crimes such as genocide, war crimes, and crimes against humanity do have a name and have been developed and refined by the international community since the end of World War II. In other words, the world has witnessed the ‘positivisation’ – for example, by way of international legal instruments – of norms and rights, such as human rights, that replicate or restate moral claims that, in the past, may not have been posited or laid down in any authoritative source. The rules-based legal order that characterises international relations today – and also percolates down so as to establish the content of domestic laws and rights – was perhaps being somewhat taken for granted until Russia’s invasion of Ukraine on Thursday 24 February 2022.
The dividing line imagined to exist between law and ‘non-law’ – in other words, binding positive law such as statute law, case law, international legal instruments (on one hand), and non-positive, but, to some, no less binding, moral law or natural law (on the other hand) – is a familiar ‘battle line’. It marks the perennial divide between legal positivism and natural law theory exemplified in the Hart-Fuller debate that played out in the late 1950s, described by Raymond Wacks as a ‘legendary contest’. It is worth briefly revisiting the case centring on derogatory remarks made by a German soldier about Hitler’s conduct of the war to which Hart and Fuller explicitly addressed themselves, and how that resonates in some way with the events unfolding today in Eastern Europe (including the introduction of objectively repressive laws in Russia). All of this brings into sharp focus one of the more absorbing aspects of the Hart-Fuller debate; namely, the validity or invalidity of positive (or posited) laws enacted by autocratic or totalitarian regimes.
The ‘battle line’ between legal positivism and natural law theory
One of the first tasks undertaken by Hart in ‘Positivism and the Separation of Law and Morals’ is to highlight the basic position adopted by the nineteenth century jurist John Austin in holding the existence of law to be one concern, while its merit or demerit is another: ‘[w]hether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry’. Hart restates the position adopted by both Austin and Bentham, encapsulated in two propositions, which Hart describes as a ‘simple doctrine’:
- The fact that a rule of law (which is otherwise legally valid and, say, not unconstitutional) is contrary to a moral principle does not mean it is not a rule of law – i.e. it is not disqualified from the status of law merely because it is thought to violate some identifiable moral principle.
- The fact that a rule is morally desirable does not thereby confer the status of law on that rule – i.e. the status of law is not assignable to a rule merely because it happens to be morally or ethically acceptable (or indeed because it happens to be a moral principle).
In taking up opposed positions on each side of the debate (legal positivism –v– natural law) both Hart and Fuller comment at length on cases that emerged in post-war West Germany where individuals who had lived under Nazi rule, or in jurisdictions governed by repressive Nazi laws, were prosecuted if they had been spies or informers or had made use of those laws and legal processes to settle personal grudges, or to pursue a particular agenda or ambition. In 1949 a West German court had made a decision in one of those cases and this drew the attention of, first Hart, then Fuller. As Hart points out:
‘The special importance of these cases is that the persons accused of these crimes claimed that what they had done was not illegal under the laws of the regime in force at the time these actions were performed. This plea was met with the reply that the laws upon which they relied were invalid as contravening the fundamental principles of morality’.
Returning to the case of the German soldier outlined above, the soldier, as it happens, survived his tour of duty at the eastern front. After the war, his wife, and the judge who had tried his case, were themselves brought to trial on charges under a German law dating from 1871 relating to unlawful deprivation of liberty (or, put another way, illegally depriving persons of their freedom). The West German court found the judge not guilty because he had rendered his decision under a law recognised as then existing even if repressive and unjust. Interestingly, this appears to concede a position where – according to a typical legal positivistic position – the Nazi laws of 1934 and 1938 would have been considered to possess, at the very least, formal validity.
The woman who denounced her husband was found guilty of having procured the deprivation of her husband’s liberty, contrary to the 1871 law, by having reported him to the authorities (the Third Reich) for violating a statute which, according to the West German court, ‘was contrary to the sound conscience and sense of justice of all decent human beings’. The court stated that its decision was not founded upon any idea that the Nazi laws under which the soldier had been convicted in 1944 were invalid on moral grounds.
It should be noted that McCoubrey and White, in their Textbook on Jurisprudence, point out that the relevant part of the debate between Hart and Fuller proceeded from an erroneous report of the case which gave the impression that the post-war West German court had in fact decided that the Nazi laws were invalid by reason of their substantive immorality, i.e. by violating some moral standard. If McCoubrey and White are correct, this misapprehension would have infected the part of the Hart-Fuller debate that focused upon the West German court case even if Hart’s and Fuller’s respective positions on the relationship between law and morality might not, in the result, have been significantly different.
Hart’s immediate response to this case – albeit beset by the misapprehension mentioned above (assuming that the textbook authors cited above are correct) – is to doubt the wisdom of a court’s declaring the Nazi law to be non-law. In other words, he questions the decision-making of any court that would deny the status of law to a statute purely on moral grounds (provided that the statute in question had met all formal requirements of due and proper enactment). Viewed in terms of Hart’s later analysis set out in The Concept of Law in 1961, the Nazi law would have met all the criteria of validity specified in a rule of recognition, and would thus (to a legal positivist at any rate) have to be considered to be ‘law’ regardless of any claimed moral shortcomings.
The point that Hart makes more forcefully, however, centres on the possibility that the Federal Republic of Germany (West Germany, as it was informally known before German reunification in October 1990) could, and should, have relied on the enactment of retrospective legislation as a means of criminalising the conduct of the soldier’s wife. According to Hart, that would be the ‘lesser of two evils’:
‘We might punish the woman under a new retrospective law and declare overtly that we were doing something inconsistent with our principles as the lesser of two evils; or we might allow the case to pass as one in which we do not point out precisely where we sacrifice such a principle.’
Hart refers to this as the ‘lesser of two evils’ because retrospective laws themselves violate a principle, which probably has the status of (at the very least) a moral principle, if not a legal one, namely: nulla poena sine lege: i.e. one cannot be punished for doing something that is not [at the time] prohibited by law. It should be remembered that, by definition, a retrospective law is not in existence and not in force at the time (in the past) when an individual might have (necessarily unknowingly) violated it.
Hart also makes the point that the promulgation of retrospective laws would be the ‘candid’ approach to addressing the dilemma. The overt and explicit enactment of retrospective legislation may violate a cherished principle (nulla poena sine lege). But it is arguably better to do that than to maintain that a moral precept (not hitherto recognised as a positive law of the given legal system) had somehow ‘appeared on the scene’ and overridden an evil positive (posited, enacted) law on the spurious basis that the moral precept had somehow always formed part of the relevant legal system and had exerted a qualifying, modifying or overriding effect on the enacted (but now discredited) law.
Hart makes the further point that a law may be a [posited, enacted] law but be ‘too evil to be obeyed’. In that situation, one simply disobeys it, though one may suffer serious [legal] consequences in doing that. But that is surely the solution, and the right approach. For, to assert that an evil law is ‘non-law’ may simply go against the facts – e.g. the evil law may be in conformity with the requirements of a criterion of legal validity (e.g. a Hartian rule of recognition) which specifies formal requirements of due and proper enactment. And as Hart argues, this assertion – that an evil law is ‘non-law’ – simply entangles us in philosophical difficulties and dilemmas that could be avoided if other approaches were to be adopted.
[To be continued …]