Jurisprudence The grudge informer PDF

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Within this essay, I will be discussing the scenario that Fuller describes in his article ‘The Grudge informer’. Fuller asks the reader at the end of the article which of the deputies’ recommendations they would adopt, in what ultimately is a question about the connection between law and morality. I will be analysing and critiquing both the first and second deputies’ standpoints on the possible prosecution of the Grudge informers and discussing why I disagree or agree with their viewpoint, using case examples and academic commentary on law and morality and its place in a legal system. I will demonstrate through the recommendations of the deputies how morality cannot be defined, as each of the deputies have individual beliefs on how a fair and just legal system shall function. I have assessed deputies three, four and five; however, I believe that the most intriguing arguments and criticisms are entwined in the two deputies who reached the same conclusion from opposite routes. Once completing the article, I referred to the first deputy and considered how and why he had reached the position he had concerning the potential prosecution of the informants. He stated that the acts reported by the grudge informers were unlawful acts towards the government in office at the time and the punishment issued to the accused was in fact, in accordance with the legislation in place; thus leading to conclude that the law must be obeyed however immoral it may be. He stated that, ‘if we seek to unscramble the acts of the Purple shirt regime, declaring their judgements invalid and their sentences excessive, we will be doing exactly the thing that we most condemn in them’. 1 His resolution to this problem was to not prosecute the informants however immoral and distasteful their actions were as this was the will of the corrupt government at the time. Taking from this, the first deputy has the opinion that law and morality do not have a connection within our legal system and holds similar opinion as Professor Hart a soft positivist. Hart suggests, ‘That those who do not recognise the laws demands are regarding the law from an external point of view and are more concerned with avoiding sanctions, but morality does not affect how the law behaves.’2 Hart believes this because it is in accordance with the primary rules a society should adhere to and it is the secondary rules, i.e. the judicial discretion where the ‘inner morality’ should come into play; claiming that officials should contemplate the mitigating circumstances surrounding an individual before the accused is sentenced.3 However, we could argue against deputy one and Hart’s perspective, as the pressure from the purple shirts against anyone who did not abide by their viewpoints were beaten and murdered; therefore, a fair and just judicial decision may not have been achieved. Deputy one has the same ideology that if the law originates from an authoritative source, then this should be considered valid regardless of its connection with morality. I believe that it is difficult to connect law and morality also, as individuals from different backgrounds hold different morals, therefore creating difficulty on the definition of morality. I support the first deputies’ claim that, ‘when an objective has been duly incorporated into law or judicial decree it must be provisionally accepted even by those that hate it.’ 4 Although, when examining such cases as the Nazi regime of 1934, it questions how a legal system so immoral was able to exist; however, the fact remains that it was perceived as a valid legal system. A similar scenario to that of the grudge informer can be shown in the Nuremburg trials, when a post war German court convicted the wife of a German soldier, she reported her husband had insulted the Nazi regime. He was sentenced and sent to war on the Russian front. Once her husband returned his wife was tried for the malicious act leading to her husband’s loss of liberty. She defended herself suggesting that in fact, her spouse did commit an offence under the Nazi statute 1934, nevertheless 1 Fuller, The Morality of law, Appendix : The problem of the grudge informer, pg 249 2 Hart, The concept of law, 2nd edition, pg. 210 3 Hart, The concept of Law, p.g 154 4 Fuller, The Morality of law, appendix: The problem of the grudge informer, pg 248

she was convicted of a ‘sound conscience and a sense of justice for all human beings’ 5 Our first deputy would dispute this, claiming that it was wrong to convict this woman as she adhered to the legislation at the time and should not be penalised for this, however immoral her actions may have been; for as long as it is in accordance with government policies in place. Fuller would dispute this viewpoint, as he claims that the Nazi regime deviated so far from a morality, that it would completely fail to identify as a valid legal system from first instance. He arrived at this conclusion as he denies that Harts ‘separation thesis’ exists, suggesting that law and morality are connected. He justified the wife’s prosecution, even by doing so meant applying the law retrospectively, contradicting his own third principle for a functioning legal system. He illustrates that for a valid legal system, eight desiderata need to be met to qualify:6 1. 2. 3. 4. 5. 6. 7. 8.

There must be rules that are; Published, Prospective, Intelligible, Non contradictory, Possible to comply with, Reasonably stable and, Followed by officials.

This is the view that our second deputy adopted when suggesting recommendations for the prosecutions of our grudge informers. He claimed that, ‘it seems absurd to call the purple shirt regime a lawful government.’ Claiming that ‘ the law in any ordinary sense ceased to exist when the purple shirts came into power’.7 This opinion would be in accordance with the positivist view of Fuller’s eight desiderata, the biggest problem when referring to these principles is the application of these rules do not seem to achieve the necessary connection between law and morality that Fuller and our second deputy insist need to exist for a functioning legal system. However, building from this ideology the second deputy insists that ‘the entire reign of the Purple shirts should be placed in the past and this dark chapter of our history be put behind us like a bad dream.’ Thus, suggesting we do not impose no sentences on the so-called grudge informers as the whole legal system itself was unlawful and unjust. An example of this is shown in the South African apartheid laws that were passed that were so immoral, the deputy and Fuller would suggest they did not count as law. However, South African apartheid was a fully functioning legal system which did conform and satisfy Fullers eight desiderata principles. However, Fuller states that such wicked aims may be impossible to pursue by means of law and would be difficult to formulate a remedy in clear terms.8 Our second deputy and Fuller do draw different conclusions from the same ideology, as in the instance of the Nuremburg trials Fuller insisted the informer should be prosecuted; whereas the deputy insists ‘let bygones be bygones’9 and not to penalise the immoral actions within an immoral legal system, which further emphasises that; abiding by the same eight desiderata the same moral conclusions do not always present themselves. Hart criticises Fuller on these principles suggesting they are ‘principles of efficacy’ and it would make no sense suggesting they are any more moral than ‘the inner morality of poisoning’10 He further criticises Fuller suggesting he fails to outline any moral guidelines for a functioning legal system. I agree with Hart’s viewpoint as our second deputy fails to recognise that 5 Understanding jurisprudence, p.g 43 6 Fuller, The Morality of law (Yale University Press c 1964) 5 7 Fuller, The Morality of law, Appendix : The problem of the grudge informer, pg 249 8 Central issues in jurisprudence, p.g 259 9 Fuller, The Morality of law, Appendix : The problem of the grudge informer, pg 250 10 Hart, essays in jurisprudence and philosophy (oxford university press 1983)

there have been two major immoral functioning legal systems that we should not disregard and create the illusion that they ceased to exist once within our society. The prosecutions of Nazi war criminals are still present in West Germany, the 2018 annual Nazi war criminals report lists seven men, whose crimes were so severe they are still being pursued to be brought to justice.11 Which furthermore, presents the argument that our grudge informers; if the crimes they committed were so heinous then it may be morally correct to punish them, even under a different legal system of a different era. To conclude, throughout this essay I have been torn between what is morally correct within a legal system and the ideology that the law in place at the time of the government must be adhered to, the government implements sanctions on its members which should protect its citizens from unjust decisions and punishments. In the case of the grudge informants, I agree with the first deputy’s position that the law at the time of the government must be adhered to; as anything else would be undermining the very legal system we live in. However, I find it difficult to allow such actions of the grudge informers resulting in the death penalty for many to be dismissed. Considering, past legal systems such as the Nazi regime and the South African apartheid; I can quite confidently suggest that morality differs from society to society and the connection between legal systems and what is morally correct is of very different opinion and the means of punishment for those who commit sinful acts must be explored by each individual society to find a plausible remedy that is suited to the very beliefs of their citizens.

Bibliography Articles 11 Annual Nazi war criminals report, 2018

Fuller L, The Morality of law, the appendix: The grudge informer, (revised addition, Yale University Press 1969) HLA Hart, ‘Essays in jurisprudence and Philosophy’ (1st edition, Oxford University Press c 1983) 593-629 HLA Hart, ‘positivism and the separation of morals’ Harvard Law Review Simmonds N, ‘Law as a moral idea’ (Oxford University press) p 1-36

Books Emily Finch and Stefani Fafinski, Legal Skills (Oxford 2015) HLA Hart, The concepts of Law (2nd edition, Oxford University Press 2012) HLA Hart, The concepts of Law (3rd edition, Oxford University Press 2012) Lon Fuller, The morality of Law, (Yale University Press c 1964) Nigel Simmonds, Central issues in jurisprudence (4th edition, Sweet and Maxwell 2013) Websites

https://www.nurembergacademy.org/fileadmin/media/pdf/Annual_Reports/Nuremberg_Academy_Annual_Re port_2018.pdf...