The aim of this essay is to differentiate between law and morality, and to discuss whether there is an overlap between the two concepts. I will be making reference to theorists of both positive law and natural law, namely H. L. A Hart and Lon L. Fuller respectively and compare the two views on the above question. For the purpose of understanding, I will apply the two theories to the legal system in Nazi Germany.
2 Law and Morality
H. L. A. Hart
As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.
The rule of recognition can be used to explain this more clearly. Hart stands firm that the fulfilment of moral criteria is not needed in order for a law to be valid and denies the fact that there is a connection between law and morality. He states that in order for a norm to be legally valid, it has to observe ‘fundamental rules specifying the essential law-making procedures’ , i.e. secondary rules. A secondary rule comes down to being a higher-order rule. In saying that a rule is legally valid means that this rule has acquired legal status according to an accepted rule of recognition. In light of this, one might think that because secondary rules regulate primary rules, there is an intersection between law and morality. One could even go so far as to say that a rule must first pass a moral standard before it can be considered as legally valid. However, Hart maintains that there is no connection between law and morality, and that a law does not cease to be a law if it is in contradiction with moral standards. Hart does, however, admit that certain provisions for a legal system do, in fact, overlap with moral principles.
Hart maintains that the acceptance of the rule of law is solely based upon non-moral thoughts and may even be accepted when an individual finds the rule as morally objectionable. The rule of recognition is already accepted as the ultimate rule and therefore cannot be classified as either valid or invalid. The acceptance of the rule of law may be due to moral standards but this is not solely the case. Legal validity is not subject to morality and ‘law as it is’...