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Separation of Law and Morals

The question of the interdependence of law and morality has worried many generations. In this regard, a discussion arose between G. Hart and L. Fuller about the relationship between morality and law. It was prompted by the question of how the courts of post-war Germany should regard Nazi legislation. Among the questions touched upon, the most important Hart found the relationship between law and morality. Before answering it, he tried to define his positions, making an excursion into the history of legal positivism and exposing the main misconceptions regarding the views of this legal school. Adhering to a positivist point of view in his article, Hart advocated a separation between law as it is and ought to be.

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To formulate his point of view, the author relies on the achievements of jurisprudence in terms of fundamental concepts, citing the works of Bentham and Austin. “It could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law,” according to him, this also works in the opposite direction (Hart 63). This statement makes it possible to highlight that there is no need for a connection between law and morality or law, as it is and should be. Hart argues that the method of solving cases by logic or deduction is not necessarily wrong, just as it is not necessary to correctly solve cases following social or moral goals.

Hart discusses the case in which, in 1944, a German soldier disapproved of Hitler in a conversation with his wife. Soon after his departure, his wife reported him to the leader of the local branch of the National Socialist Party. As a result, the husband was tried by a military tribunal and sentenced to death. The sentence was not carried out, and after a short imprisonment, this soldier was again sent to the front. After the war, his wife was convicted of illegally depriving her husband of freedom. The appellate court, which eventually received the case, found her guilty, although her husband was imprisoned based on a court sentence for breaking the law. The court considered that this law contradicted the sound conscience and sense of justice of all decent people.

Concerning the Nazi legislation itself, according to Hart, it is unacceptable, for example, for the British, since the very goals of Nazism and, as a result, Nazi legislation is inappropriate to them. So this is not a legal question but a purely political one. Recognizing the relationship between law and morality, due primarily to their genetic relationship, Hart believed that law and morality should not mix. The law itself is subject to study as a system of logically interrelated norms. Any legally significant decision can be deduced through logical operations without social, political, and moral justifications. Therefore, the problem of fairness or injustice of positive law is outside the sphere of jurisprudence.

Thus, G. Hart is of the opinion that all laws must be observed at all costs, whether any particular person considers them to be in accordance with the principles of morality or not. Thus, when the law is adopted, it becomes above the concepts of morality and the rights of individuals. Including the representations of the judges, by which they are guided in the resolution of disputes and recognizing the existence of judicial discretion. At the same time, Hart recognizes the existence of unjust laws, but he is forced to put up with this state of affairs. According to Hart, it is better to admit injustice in the law than to deprive the right of some critical elements.

Work Cited

Hart, Herbert Lionel Adolphus. “Positivism and the Separation of Law and Morals.” Philosophical Problems in the Law, edited by David M. Adams, Thomson Wadsworth, pp. 61–70.

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