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My notes on Hart and Fuller in general...

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Hart & Fuller Debate The Nazi Grudge Informer case: The debate is a classic of modern jurisprudence, Hart taking the positivist line and Fuller the anti-positivist natural law line. After the Nuremberg trial, there were tensions between legal positivist and natural law thinkers. Legal positivism had let Hitler get power. Hitler was an engine to perpetrate terror. Had natural law been in force, we would not have seen the day of Nazi. Lon Fuller and H.L.A Hart entered over whether unfair Nazi laws should have been adhered to. The focus of the debate was on the grudge-informer cases concerning Nazi German citizens who would tip off people to the Gestapo whenever they had a grudge against them. Grudge-informer cases refers to the fact of speaking ill of Hitler would constitute to an offence The allege offences although tendered to be minor crime against the state, the punishment was drastic under an atmosphere of terror. Even if the law is wicked, it is still the law. After the Nazi regime was defeated, there was a pressure to condemn politically and to punish the Grudge-informers because they conspired together with Gestapo. The fuller and Hart debate arose specifically in a particular case where wives reported their husbands, whom they wanted to get rid of. One such wife told the Nazi Authorities that her husband was constantly speaking ill about the Nazi regime. The Gestapo then captured the husband and sent him to the Russian Front to face the Red Army which is a powerful one and therefore it was like a death sentence. However, the husband survived. In another scenario, in 1949 a wife denounced her husband to the Gestapo for having said something harsh about Hitler. She had a grudge against him. The husband was arrested and sentence to death under a Statute that made it illegal to make statements detrimental to the German Government. After the war, The Nazi Statute in question was repealed. In the former case, where the husband survived the war, legal action was brought against the wife for unlawful deprivation of his liberty under the German Criminal Code 1871.

Likewise the wife who caused her husband’s death was charged with the same offence. Under the German Criminal Code 1871 in 1949, the year when the Nazi Statute had been repealed. Both wives in their defences pleaded that what was done back in 1944 was lawful as it was in compliance with validity enacted Statute that was in force. They argued that they cannot be held guilty for having followed the law. The question was whether the Nazi legislation at the time could not be held to have been valid law, notwithstanding that it is morally reprehensible?  The question was whether the wives could be absolved of criminal liability because they followed the Nazi law or whether the law was so immoral that it could not be regarded as law and hence the wives were rightly convicted under the German Criminal Code 1871 which remained in force at the time the alleged offence was committed. One must agree that the argument of the wives was meritorious because of the Nazi Statute. However, on Appeal, the German Government was found that they had unlawfully deprived their husbands of their freedom and that Nazi law could not have been valid when it is so contrary to the sound conscience and sense of justice of all decent human beings. Therefore, what the court in fact hold is that when the wives denounced their husband’s remarks, they would have had committed an offence. This in line of reasoning is along the claim of a stark natural law thinker because by such an argument, it attempts to demonstrate that at the outset, the Nazi German Legal System was not a legal system as it failed to meet the basic principles of morality. Hence, any enforcement of the Nazi laws according to Lon Fuller was a clear breach of natural law and could lead to prosecutions and convictions. According to him, since the rules of Nazi are not morally internal to the legal system, there must be on the contrary strong reasons to disobey the law than to give fidelity to the law.  At that time there was only the German Criminal Code 1871 but no other Nazi law. He explains that the wives were correctly sentenced because at that time there was no Nazi law since it was devoid of morality and thus had no legitimacy. In such a way, the only law which was operating in relation to this case was the German Criminal Code 1871. Fuller held that under the Nazi Regime, there was no system of law and it was rather a system of anarchy and terror The position of Hart is different in dealing with a justification for punishing the Nazi informers under the law. He disagrees profoundly with the legal reasoning of Lon Fuller, in that Nazi law is no law since it contravened the fundamental principles of morality.

Hart’s reasoning is inspired by Gustav Radbruch. Hart takes on the criticism of positivism of a German jurist called Gustav Radbruch. The history of Radbruch’s thought about law was that he was originally a positivist. After his experience of the Germany of the 1930s and during the war, his views radically changed and he became convinced that legal positivism was one of the factors that contributed to Nazi Germany’s horrors. Among other things, he said, the German legal profession failed to protest against the enormity of certain laws they were expected to administer. In the light of this, Radbruch claimed that a law could not be legally valid until  

it had passed the tests contained in the formal criteria of legal validity of the system, and, more importantly, it did not contravene basic principles of morality.

Hart insists that the Nazi Structure had met the formal test laid down by the criteria of legal validity.  Hart, being a legal positivist laid down the test of valid law. Hart disregards the analysis of Lon Fuller as a too crude way of dealing with a delicate and complex legal issue. He says rather, that the most rational approach to deal with the problem of punishing Nazi informers would be to hold that after the war, there was the retrospective law declaring the Nazi Statute to be invalid is the authority for punishing them. Hart prefers the methodology that later a retrospective law will make it valid law. The women in the case would become criminally liable not because what they did was illegal but because a later Statute rendering it illegal by repealing the Nazi law and assuming retrospective effect. Therefore, according to Hart, it is the Post-war law of 1949 which says we must condemn, having retrospective effect which becomes the reason why the wives were punished.  The German Criminal Code 1871 is no longer the law and has been replaced by this retrospective effect. However, although Hart admits that it could be wrong to punish a person when what they did was then permitted by the Statute because there is a Latin principle of ‘Nulla Poena Sine Lege’ which means there can be no punishment without law.  Hence Hart uses these Latin words to defeat the Theory of Lon Fuller. Despite being alive to this, that the rationale implies that if at one time you are acting within the law then it should not later be decreed that what you were doing was against the law. However, this principle in the particular matter ought to be sacrificed for a higher moral principle.

Hart says “odious as retrospective criminal legislation and punishment may be, to have persued it openly in this case would at least have had the merits of candour/ honesty/ truthfulness. It would have made plain that in punishing the women, a choice had to be made between two evils: retrospective effect which Hart favours and the other one is legal reasoning of Lon Fuller. Therefore according to Hart, opting for the retrospective effect of the legislation is the lesser evil. By contrast, Hart preferred to look to what existed in the legal system, at the time whether the rules were unjust or irrational did not affect its legal validity. Hart argued from a positivist approach that moral issues should not be considered within a legal system and that a law should not be invalidated on moral judgment. The wives could not be punished on the ground that it was not law but later could be punished on the ground that it was a retrospective legislation. The debate sent insights into Hart’s methodology. He preferred the wider positivist conception of law that separate law from morality.  Hart says that the law has retrospective effect and Fuller says the law has a natural effect....