Jurisprudentially, Natural Law emerged in the 5TH Century BC, is defined as the law of nature by various philosophers like Aristotle, Plato who used monologue practice and later by various others jurists as per their ideologies. It originated because of the harsh and cruel practices laid down by the city States against innocent people. It talks about the reflection of law as a very basic, moral and fundamental in nature and without reference to any specific legislative enactments or judicial decisions. Thus, this all instilled the need for justice within the people of the state. After the theories of various jurists which divided the Natural Law into various cycles like the stoicism the theologies and the social contract theory, it was later explained most promptly by the very important philosopher in the 19th Century, Lon Luvois Fuller (June 15, 1902 – April 8, 1978). According to him, morality was the key ingredient in making the law. Morality here refers to those basic principles governing an individual’s life which facilitates him/ her to make decisions. Though even after the revival of the scientific study of jurisprudence, the importance of morality while making law was not clear. But now we will consider Lon Fuller’s theory of morality and law to check whether morality is required to be taken into consideration while making law or not?
Lon Luvois Fuller was a noted legal philosopher who criticized the theory of legal positivism. He supported the relationship between law and morality by defending a secular and procedural form of natural law theory. He defines law as a way to achieve social order in society by guiding human behavior to the rules which are instilled with moral principles. According to him, everybody wants justice in life through legal procedures that should have a moral aspect. He says that for a law to be considered as a genuine law, it must through the moral test. In the book “The Morality of Law “(1964) by Fuller, he argued that morality can be differentiated on the basis of “morality of aspiration” and “morality of duty”. Here the former refers to those rules which are made in accordance with morality so that the individual can achieve their self-interested goals and in the latter, Lon tried to describe the standards which are followed by human beings at a particular place, time so as to have smooth functioning of the society
In his set of morality, Fuller calls “external morality of law” and “internal morality of law” as the key elements of morality. Here, the former refers to the substantive rules of law that are applied in the decision making by the judges and or other authorized power and latter refers to the procedure involved in making a particular law which can be said to be a morality of aspiration.
He says that the means to attain society’s end can be achieved by various other methods rather than just by relying on the law. He believes that every law which has the power to compel compliance might not be rightfully treated as law. Thus he prescribes eight standards to make principle accepted as a law. Therefore a law must be measured out of these standards.
- The principle laid down must be in such a manner that it can be generally applied to every member of society.
- Law must be communicated to the people to whom they are actually directed.
- All the newly formed principles must always be applied in a prospective manner, though the retrospective application of law should be permitted on rare occasions.
- The clarity in law is must.
- Law must be free from contradictory mandates.
- Law must be such that it should not impose impossible standards of action.
- Abiding by the previously announced laws or guidelines.
- It must satisfy the requirements of what he terms as “congruence”.
Lon fuller says that substantive rules need to be necessarily moral so that it promotes the objective of mankind, therefore, it must take into consideration the nature of man which is dealt with in Natural theory. Law has to have a unity of purpose which regulates human behavior for attaining societal objectives. To understand more about morals as a necessity in law, we must take into consideration the Hart-Fuller debate. Herbert Lionel Adolphus Hart,(18 July 1907 – 19 December 1992) was a positivist and a British Legal Philosopher and had written the most important work in the 20th century, “The Concept of Law”.
Hart-Fuller debate surrounding Law and Morality
This debate demonstrates the views of both naturalist and positivist in reference to the Nazi laws. The impact of naturalist theory was so good that Gustav Radbrucha Jew became a staunch supporter of natural law theory after seeing all the atrocities perpetrated by the Nazi regime. This gave rise to a series of books being published as a reply to others. Hart was prompt to initiate his discourse on law and morality. He published his book titled “Positivism and the Separation of Laws and Morals” in 1958. Fuller replied to it through his article titled “Positivism and Fidelity to Law: A reply to Prof. Hart”. Hart then published the book “The Concept of Law” in 1961 to which Fuller’s reply through “The Morality of Law” was written. LaterHart replied to this and received, in turn, a chapter as a reply to his critics when Fuller published the Second (Revised) edition of his book. He stated that it is not necessary that laws must satisfy certain demands of morality. He considers them to be closely related but not inter-related with each other. He says that legal interpreters should display the truth about what law is rather than focusing on the aspect of what he wished it to be. He concedes to a minimum content of natural law which includes human vulnerability, approximate equality, limited resources, limited altruism, and limited understanding and strength of will.Hart’s rule of recognition requires a minimum morality of law. Impartiality in the application of a rule is a moral standard which is necessary for any legal system.
He says that law consists of two different kinds of rules i.e. primary rules which are the duty imposing rules with legal sanction attached to it on the citizens and secondary rules which are power-conferring rules that prescribes the rules of recognition, change and adjudication and thus both rules form the heart of the legal system. Hart recognises the problem that might occur due to lack of interpretation of the words of a statute which he referred as the core of the law and sometimes standard instances of words might not be sufficient to give the effect with was supposed to be given to the law and he referred it to as the problems of penumbra and thus morals can be of great help in deciding such instances.
The difference in the ideologies resulted and so as per Positivism, a valid law requires to have been issued from a competent legislator after following prescribed process and morality is not to be considered while enacting the law. On the other hand, Natural theory supports that law must exist with certain ideal moral principles or valuesIn his debate, fuller criticised the core of the law and the penumbra. To understand this better lets discuss few cases:
The Grudge Informer Case
In 1944, a woman wishing to get rid from her German husband because he had an affair so she reported to the Gestapo because his husband criticised Hitler’s conduct while he was on leave from the army. The basic principle of the Nazi law was laid down by German Reichstag by the Enabling Act of July 12, 1934, for allowing Hitler to issue decrees inconsistent with the Constitution. Since making such remarks was illegal therefore he was found guilty and sentenced to death. But later due to judge’s justice, faith and good conscience, the wife was held guilty.
1. Wasn’t there any moral obligation which exists between the judge’s decision and law existing at that time?
2. Is conformity with such illegal laws by the judges necessary?
The Court of Appeal, despite the fact that the husband had been “sentenced by a court for having violated a statute”, found her guilty of the offence of deprivation of liberty because quoting from the judgment – the statutes were “contrary to the sound conscience and sense of justice of all decent human beings.”
The Grudge Informer: The husband criticised the laws of Hitler because those laws were not in accordance with morality. There is a moral duty to make rules in accordance with people’s thought of righteousness. Even the laws must be respecting justice which was absent in Hitler’s time. The judges of the Court of Appeal realised the need for disapproving few laws by Nazi regime which are void in lieu of moral rules. So the wife was found guilty as those rules lacked justice and soundness. To this judgement, Hart disagreed with the concept of morality and holding that statute illegal therefore with the judgement because according to him the laws must be made in accordance with secondary rules i.e. the procedure prescribed by the authority and since the law was valid as it was approved in the Enabling Act passed by Reichstag, therefore, the decision is inappropriate. He did not focus on the morality aspect. The law according to him also satisfied the rule of recognition. Thus he wanted authorities to let the wife be free as the statute protected her or make an exceptional case in Hitler’s regime of retrospective legislation – declare the wife guilty under the statute. But Fuller accepted the Court’s verdict because it creates respect for both law and morality and thus achieving “fidelity to law”. According to him, all Nazi laws were illegal as they did not include internal morality required in making a law which makes laws respectful and makes them obligatory to follow. He criticises Hart because he became inconsistent when he denies the verdict as he supported minimum content of natural law such as vulnerability, approximate equality, limited resources, limited altruism, and limited understanding and strength of will. Even Hart’s rule of recognition required minimum morality of law and impartiality in the application of the rule. Thus Fuller believed in the theory of having morality at all the time of law-making (core) or its application by the court (penumbra). People will definitely obey with it if they are convinced that the laws are based on strong moral foundations for the betterment of society as a whole. Thus all this conflict between the two gives power to the judiciary to go against the Nazi regime which follows illegal laws and make a judgement which is enshrined with morality and makes the wife guilty because her husband was doing the right thing as those Nazi laws were illegal.
2. Damodar Naryan Singh vs. Sardar Hira Singh and Anr. (06. 05. 2002 – CALHC ) 
Damodar Narayan Singh has issued a suit against his third son Sardar Hira Singh for getting his property back from him because according to him the license was revoked by the letter on the ground of his son creating disturbance in the family peace by assaulting the parents taking away the ornaments of her sister. ThusFourth Bench of the Court of the small causes at Calcutta with reference to the application under Section 41 of the Presidencies Small Causes Courts Act, 1882 directed the son to vacate the suit premises and deliver the possession of it to the plaintiff within two months. Thus the son questioned the verdict by filing the written statement on the ground that the property was actually purchased by him and his brother who contributed Rs. 12000/- and Rs. 40000/- respectively. The father did not even have income at that time. Thus he questioned the independent title over the property. Further, he said that it was his brother who allowed him and his family to live there.
1. Is there any license required within the family members to use each other’s property?
2. Can the title of the property be given to the plaintiff or to him as an independent right over the property?
3. Is the jurisdiction actually required to solve the family matters in the country like India which symbolises unity?
The judgment of Calcutta High Court referred to Section 52 of the Easements Act and said that it will not come to his help because it has been observed that in Indian family father cannot be said as “other person” in respect of the son who to is termed as “any person” . Also, there is no relationship between the father and son in a joint family that of licensor and licensee as in the joint family the son stays in the house of the father as his son and not as a licensee. Also, the title of the property cannot be decided by them thus the learned Court below had no jurisdiction to decide the issue as there was no applicability of Section 41 of the aforesaid Act. Though the matter can be adjudicated by the revision Court. So the matter was put forward and was succeeded, the impugned order is set aside and quashed.
The court came to this judgement because of the application of morality. The court took into consideration the fact that the long heritage of the family system which if allowed to be polluted by the judgement will result in the nucleus family system. The country will face anger not only on the point of the breakup of the family ties but also cultural denervation which will result in the pollution in the value system of the society which is the basic pillar to uphold the unity of the family. The long path of change from a child to a man depends solely upon the self-sacrifice and contributions of the parents to make him a complete man. Even the court has considered the moral ethics in the application of the law. Where morals deal with thoughts and feelings, law is related to acts. Even moral principles must be given legal recognition. It is the idea of Natural School to find out the nature in law and emphasise morality to explain their theory which as a result brings social justice. Natural philosophy has become an integral part of the legal, social and political system. Even Tagore Law Lectures 1948 had emphasised: “morals are a very potential material for lawmakers”. Since the court below cannot decide the title of property as it was not in his jurisdiction therefore appeal could be made to revision l court. Thus on the basis of morality, Section 41 was quashed. Thus the theory of Lon Fuller holds true here also
Thus even I agree with Lon Fuller’s approach towards morality being an essential part of the law as it tells the citizens for their right conduct which is acceptable within the society. I think if laws are to be made then they must be in accordance with the behavioural standards that people should desire. Since the concept of morality keeps on changing from time to time, therefore it is necessary that there should be a provision of amending the rules as the time requires on the basis of those needs. Thus the laws must conform with morality to form a long-lasting legal system and its application upon the people. Even people will adhere to those laws if they are in proper coordination with soundness and moral obligation.
Sonali Banerjee, The Relevance Of The Hart & Fuller Debate Relating To Law And Morality- A Critical Analysis, International Journal of Law and Legal Jurisprudence Studies, Volume 4 Issue 2.
William C. Starr, Law and Morality in H.L.A. Hart’s Legal Philosophy, 67 Marq. L. Rev. 673 (1984).
Selections from Lon Fuller : The Morality of Law (New Heaven:Yale University Press,revised edition,1969)
Judgement of July 27,1949, Oberlandesgericht,Bam berg,5 SiiddeutscheJuristen-Zeitung 207 (Germany 1950)(MANU/WB/0335/2002 )
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