It is important to consider, howbeit briefly, the academic exchanges between the proponents of legal positivism as represented by H.L.A. Hart and those of the natural law school represented by Lon Fuller. The gravamen of such academic discourse, usually tagged Hart-Fuller debate is to be found in the Harvard Law Review 1958. Curzon identifies the background of the debate as the atrocities committed by Germany during the 2nd World War. Under the National-Socialist regime (1933-1945), dictatorship reigned. There were abuses of power, massive violations of human rights, enacting of privative laws and ouster clauses (which hindered the courts from adjudication).
At the end of the war, there were concerted efforts by German jurists to cleanse the German legal system of any association with such dictatorship. Radbruch (1878-1949) – who was Minister of Justice under the Weimar Republic – wrote a book entitled Five Minutes of Legal Philosophy (1945) wherein he ‘converted’ from legal positivism to natural law. He wrote that:
“Preference should be given to the rule of positive law, supported as it is by due enactment and State power, even when the rule is unjust and contrary to the general welfare, unless the violation of justice reaches so intolerable a degree that the rule becomes “lawless law” and must therefore yield to justice.”
The transformation or transfiguration of the erstwhile die-hard positivist and Minister of Justice influenced many and brought into sharp focus the need to reexamine the doctrine of legal positivism in a dictatorship.
Although Hart sympathized with Radbruch, he insisted that the law is the law notwithstanding its failure to meet the demands of external moral criteria. In Positivism and The Separation of Law and Morals (1958), he observed that that the law is evil is separate from the question as to whether it ought to be obeyed. Note, however, that Hart did not support the evil of the Nazi regime which he described as ‘hell created on earth by men for other men.’ But he insisted that it was wrong to deny a law duly made in accordance with rules of the legal system in question simply because it results in abuses and atrocities.
Fuller responded in his Positivism and Fidelity to Law – A Reply to Professor Hart (1958). He emphasized the wrongness of the position taken by Hart. To him, law must possess certain characteristics of ‘inner morality’ if it must be classified as law. In Nazi Germany, nothing existed to which the title of law might be applied correctly because the so-called laws were inherently evil. He gave examples of the characteristics of such laws as retroactivity of decrees, execution without trial of dissidents in 1934, and total indifference to human rights and civilized conduct. He posited that it was not unfair to the positivist philosophy to say that it never gives any coherent meaning to the moral obligation of fidelity to law.
Hart replied by reaffirming his stance. Legal system may show some concerns to justice or morality but it does not follow that a criterion of legal validity must include, expressly or by implication, any reference to justice or morality. A law remains law no matter how morally iniquitous. Law and morality are not interchangeable.
However, Hart recognizes the necessity for ‘salient characteristic’ of law (‘inner morality’) in his Concept of Law. Thereafter Fuller enumerated the minimum content of law – what a law worthy of its name should contain in order to be called law. He concluded by stating that a law lacking in internal morality loses the essence of true law.