Topic 6 - Hart v Fuller Debate Manifestly unjust laws PDF

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Hart v Fuller Debate
Manifestly unjust laws...

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Legal Theory & Philosophy Unjust Laws Dr Tan Seow Hon ([email protected]/68085105)

Topic 6

Obligation to Obey -

Are some norms “manifestly unjust”? Does manifest injustice of a purported law result in legal invalidity, or only the lack of a moral obligation, or a moral obligation to disobey?

I. Hart-Fuller Debate HART 

On Radbruch:  Radbruch used to think that resistance of unjust law was a matter of conscience.  Radbruch, after the Nazi experience, saw the ease with which the Nazis exploited the positivistic insistence as to the separation between laws and morals.  He concluded that fundamental principles of humanitarian morality were part of the concept of legality, and judges and lawyers should denounce unjust laws not only as morally wrong, but as having no legal character.

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Hart’s criticisms:  Naïve to think that positivism resulted in what happened – “law is law” slogan acquired a sinister character only in Germany.  Declaration of the validity of the law does not settle the moral question

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Hart’s view of the practice of war crime tribunals:  Practice amounts to the punishment of acts which were not crimes under the laws then in force  Seen as triumph of natural law but really there are two other possibilities  Let evil doer go unpunished  Punish, but admit retroactivity  Proposition that “law is law” is better – it has the virtue of candor which is as much a moral virtue.

Fuller 

Order and good order:  Law as order simpliciter; good order is law that corresponds to demands of justice or morality or men’s notions of what it ought to be.  Even order contains a moral element.  Law is built on both external and internal morality. They reciprocally influence each other.

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Badness of law and idea of fidelity to law 1

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Badness of law is a matter of degree. Fidelity to law embraces the responsibility to make the law what it ought to be

Fuller’s take cf Hart and Radbruch:  Hart’s solution is to recognize moral dilemma and apply a retroactive statute.  Radbruch who lived through those times knew what the pressing needs were.  Fuller: Positivism fails to give any coherent meaning to the moral obligation of fidelity to law. The fundamental postulate of positivism that law is to be severed from morality seems to deny the possibility of a bridge between the obligation to obey law and other moral obligations.

II. Possible takes on the obligation to obey manifestly unjust laws 

If unjust law is law  Judge:  Citizen who refused to obey:  Citizen who obeyed:

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If unjust law is not law, and hence no legal obligation  Judge:  Citizen who refused to obey:  Citizen who obeyed:

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Comparing positivism and non-positivism on the legal status of unjust laws Issue: Whether positivism’s take or a non-positivistic take on the legal status of unjust laws is preferable.  Radbruch’s formula [non-positivistic take] - The conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and inexpedient, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as “lawless law”, must yield to justice.  observer’s perspective : deprived of citizenship according to German law – no necessary conceptual connection between law and morality - and it’s claimed that this conceptual or analytical argument is supported by way of expediential consideration or normative argument  Need for value neutral designation for authoritatively issued and socially efficacious norms like Ordinance 11  No useful alternative to expression “law” 

participant’s perspective: [we consider only Alexy’s “argument from injustice”, which he uses to suggest the connection thesis (law is necessarily connected with morality) is preferable to the separation thesis (law is not necessarily connected with morality)]: there are good reasons for a judge who considers an extremely unjust individual norm to acknowledge that the norm does not have legal character

1. LANGUAGE  P’s argument: Inclusion of moral elements is inexpedient  NP: correct from standpoint of observer. Participant such as judge will see Ordinance 11 as first of all the result of a norm-creating procedure and also having a second quality – point of departure for a norm-applying procedure in which he participates and whose result is accompanied by the claim to correctness 2. CLARITY  P: Hart thinks we shd speak plainly  NP: clarity in terms of simplicity isn’t the only goal of concept formation – adequacy of concept is important o Real issue here is the possible difficulty in drawing the line between norms that are just and those that are unjust – but this is question of legal certainty  P: feels that it’s an issue of ethics  NP: treats ethical problem as a legal one. 3. EFFECTIVENESS  P: naïve association of slogan with Hitler’s regime; others have said a strict separation between law and morality encourages a critical stance vis-à-vis the law  NP: Alexy thinks second would be the case if strong connection thesis is suggested by NP i.e. that a norm is a legal norm only if its content corresponds to morality – whereas only weak connection thesis is asserted: that legal character forfeited only if conflict between law and morality reaches an intolerable degree – no identification of law with morality

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In terms of legal practice, this makes a difference – if there is consensus as to the minimum moral requirements that must be met, there is not just a line of moral, but also legal, argumentation to resist the acts of a rogue regime. Also, effect of risk on a bad judge that his acts will be subj to sanctions in the new regime

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LEGAL CERTAINTY Leads to uncertainty if strong connection thesis Not if restricted to manifest injustice Legal certainty is not the only value

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5. RELATIVISM  P: no notion of justice that can be rationally justified or objectively known  NP: does indeed presuppose at least a rudimentary non-relativistic ethics – while doubt on particulars, yet the work of centuries shows broad consensus in the so-called declarations of human and civil rights and only with labored skepticism can one still harbor doubts  Alexy: historical experience and broad consensus not refute relativism but often enough that broad consensus on human rights – prevents a judge from striking down just statutes on ground that not comply with Nazi morality 6. DEMOCRACY  P: more appropriate for the legislature, not the judiciary  NP: might end up abrogating judicial review 7. DISPENSABILITY  Radbruch’s formula not needed as new legislator can abrogate by means of retroactive statute  Alexy notes that Basic Law includes nulla poena sine lege (without a law there is no punishment) principle – constitutional change might permit exceptions to this principle and thereby exceptions to the principle that nullum crimen sine lege (without a law there is no crime) – but problematic as elementary principles can’t be changed by legislator  But this creates problem of whether the non-positivistic position is a circumvention of this principle 8. CANDOR  P: object that circumvention of principle  Alexy considers hypo case of woman who denounces her husband who disobeys a command to commit homicidal acts -Alexy’s solution is to let the NP deny the legal character of unjust statute and arrive at exemption from crim liability on the “no punishment without a law” ground  Another solution is that manifest injustice is clear and if so, shd have known that not acceptable and not law that could lead to exclusion of crim liability

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