The views of both Hart and Fuller will be interpreted and the differences between the two essays, analysed.

It can be said that Fuller is a follower of naturalism, but he does not wholly agree with Radbruch’s thinking.  To take one example, Fuller does not subscribe to Radbruch’s theory of ‘higher law.’ Lon Fuller, in ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ begins his counter argument by saying that Hart’s essay can be ‘restated in terms of the distinction between order and good order.’  He says that law may be said to represent order and that law which corresponds to the demands of justice, or morality, or men’s notion of what ought to be represents good order.  To separate ‘order’ from ‘good order’ is no easy task.  Again the question of where the line is to be drawn should be asked.  Fuller states that the notion of ‘order’ contains what may be called a moral element.  He then illustrates, using a specific example, this ‘morality of order.’  So, Fuller is putting forward the idea that ‘law, considered merely as order, contains, then, its own implicit morality.’  He says that this morality of order must be respected if we are to create anything that can be called law, even bad law and that law by itself is ‘powerless to bring this morality into existence.’  So, it is clear that he believes that the two are, without doubt, linked.  Hart makes no reference to Fuller’s ‘internal morality of law.’  In neglecting this fundamentally important way of thinking, Hart fulfils the positivist view that law and morality are two separate entities.  If ‘order’ is something that must be worked for, it becomes apparent that the existence of a legal system, even a bad or evil one, is always a matter of degree.  Using this line of thinking, Fuller gives that it ‘becomes impossible to dismiss the problems presented under the Nazi regime with a simple assertion: ‘Under the Nazis there was law, even if it was bad law.’  Fuller gives that it is in everyday problems of law that that one sees how ‘completely incapable the positivistic philosophy is of serving the one high moral idea it professes, that of fidelity to the law.’  Fuller then cites a specific example of the awkward position that a judge may find himself in.  He counteracts Hart’s view when he asks, ‘is it not clear that it is precisely positivism’s insistence on a rigid separation of law as it is from law as it ought to be that renders the positivistic philosophy incapable of helping the judge?’  Fuller obviously believes that had the judge in his example followed Hart’s line of thinking, then he would be torn between his loyalty to the law and his moral beliefs.  If the judge believes that many of the decisions taken by his superior court are ‘wrong’, and that they ‘ought to be’ different, then in following the positivistic thinking, he would have to apply them anyway, contrary to his moral beliefs.  Fuller believes, unlike Hart, that Radbruch fully understood that he was faced with a moral dilemma.  Having lived through the atrocities, Radbruch knew that the courts and he were faced with a moral dilemma.  Where Hart and Fuller differed was how best to cope with a morally unjust law.  Whereas Hart believed that it was a choice between two evils and, hence, a no win situation Fuller believes that the best outcome was to follow your principles and fail to recognise that such evil laws can, in fact, be legally binding.  Another difference is that Hart failed to differentiate between ‘order’ and ‘good order.’  This ‘good order’ corresponds to morally just laws or men’s notion of what ‘ought to be.’  Let us use abortion as an example to differentiate between the two schools of thinking.  If the House of Lords acted in a retroactive manner and banned any pro-abortion laws because they regarded the removal of a foetus as the unlawful killing of a human being and therefore immoral, this would lead to women who underwent an abortion and the doctors that performed the operation being liable under criminal law.  A large proportion of society would not be able to tolerate this.  Hart condones this to an extent and gives that it is the ‘lesser of two evils,’ that of leaving the doctor unpunished and the other of sacrificing the principle of morality ‘endorsed by most legal systems.  The courts would use retroactivity to punish the doctor and preserve the principles of morality.  The natural lawyer would reach the same outcome, that of punishing the doctor, but would not arrive a this conclusion through using retroactivity, but by saying that the killing of a human being, albeit a foetus, did not have the force of law at the time as it was immoral and hence it was not law.    

According to the classical positivist, the role of the court is to apply the law, not make or unmake it.  Laws are made by omnipotent sovereigns, which, in this country, comprise of the House of Lords, the House of Commons and the Monarch.  The natural law view is that judges have the power to ‘invalidate’ laws that may have been in force for many years, simply because they are contrary to their moral beliefs.  Hart’s view is that judges should look at what the law ought to be, rather than at what it is.  However, the traditional positivist will tell the judge that if you are confronted by an evil law, you must still apply it.  Hart stated that when judges adjudicate, the first step is to interpret the statutes.  However, it is obvious that the statutes can be interpreted in different ways, as this is the fundamental meaning of the word ‘interpret.’  The judge then makes policy decisions in the second stage.  He brings in his own ideas.  However, it is wrong for the judge to stray too far from what the legislation intended.  The judge must have the power to ‘shape’ the laws, but must be careful that this is not done with too much latitude, as this can lead to retrospective law making, which is generally accepted to be wrong.  This is because you make it impossible for people to obey the law.  To take a very banal example, if the smoking of cigarettes was made illegal tomorrow, would society accept the punishment, by the authorities, of those people who used to smoke?  Is it not a justifiable excuse for those people to say, ‘I was committing no crime when I smoked the cigarette as I was not breaking any laws at the time?’  However, attitudes can and do change.  It is important for judges to take into account what the legislators had in mind at the time of drafting.  An example judges reshaping the law occurred in the blasphemy case.  The question being asked was whether one could be convicted for blasphemy, in depicting Christ in a homosexual manner.  The House of Lords looked at the precedent.  The previous blasphemy case was decided fifty years ago and the court decided that attitudes had now relaxed.  If judges were able to invalidate all unjust laws, the natural lawyer would be happiest.  Fuller provided, ‘I discern and share one central aim…that of discovering those principles of social order which will enable men to attain a satisfactory life in common.’  This would enable the court to take social change into account as, according to Fuller, morality is constantly evolving.  This was also seen in R v R (1992), where the House of Lords were faced with the question of whether a husband could be found guilty of raping his wife.  In answering affirmatively, the lordships deliberately interpreted the statute in a way to give a distorted meaning.  Another positive emanating from the natural law viewpoint is that if judges have the power to invalidate unjust laws, as they are morally wrong, then all remaining laws would become, by elimination, just.

Dworkin disagreed with Hart’s view that ‘the rule making authority must exercise a discretion and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between many conflicting interests.’  It was the accepted norm that judges filled in the gaps left by rules of law by using their discretion.  However, Dworkin submitted that, ‘the judge, not being elected, must not substitute his own will as against the legislature.’  Dworkin is also against the idea of retrospective laws.  He gives that, ‘if a judge makes new law and applies it retroactively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.’

It is submitted that the best position for a judge to take is to follow the thinking of Lon Fuller.  The principle decision in reaching this lies in the view that retroactive laws are an evil, not to be taken under any circumstances, as it would make the law impossible to uphold.  

This response will aim to add weight to the theory that the decisions made in the German Constitutional cases (the Bundesverfassungagericht) and the reasons for these decisions represented the best possible method.  It is submitted that the best view is that of Fuller, Radbruch and naturalism.  This is due to the fact that retroactive law making is a complete evil.  It makes it impossible to follow the legal rules, as what is legal one day may be illegal the next.  The German courts were helped to come to their decision by the Radbruch theory, as discussed previously, in essence, that even though, ‘security of the law was paramount, and therefore unjust or inexpedient laws had to be obeyed, if the contradiction between a positive law and justice became unbearable, that law must be considered a wrong law and is overruled by justice.’  This question will deal with two cases in particular, the inheritance case of 1968 and the GDR case of 1996, of which the facts are well known.  In resolving the 1968 case, the courts declared the National Socialist law was void as it ran ‘contrary to fundamental principles of justice to such an evident and unbearable extent that the judge who applied them would be speaking wrong instead of right.’  So, the courts denied that the Nazi law had ever held validity, even though it had been in force for a number of years.  If the positivist view had been taken, it would have been held that the law ought still to stand, as it was law, but that a retroactive law should be passed that would usurp this evil law.  So, the end result would have been likely to be the same.  

In the second case, hereby referred to as GDR, it was determined that after the reunification, East German criminal law would preside over cases and was in accordance with the basic law.  It concerned a defendant who claimed that in killing an individual trying to cross into Berlin, he was simply following Paragraph 27 section 2 of the GDR border law.  The defendant claimed the courts were acting retroactively by ignoring the GDR law.  The German Court ignored the GDR law, claiming that the crime ‘violated elementary tenets of justice and fundamental Human Rights.’  The positivist would have claimed that it was not the East German that was immoral, but the legal system which created it.