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Hart-Fuller Harts position

Debate On the one hand Hart held that there is no


necessary relationship between a legal system and
the ideas of justice or morality. A legal system can
function effectively though it is neither just nor
moral.

The Nazi regime would be a good example of this


point. It discriminated against individuals on racial
grounds. In Harts view it was a legal system. The
Nazis argued that racial distinctions were relevant
and reflected the morality of their society. It was,
therefore entitled to discriminate and still claim it
was treating like cases alike.

Hart argues that the question of what is law must


be separated from the question of whether it is
moral or just.

Lon On the other hand Fuller (Natural Law theorist)


Fuller (America maintains that law and morality cannot be so neatly
n jurist born distinguished and that the post-war courts were
1902) entitled to hold Nazi rules not to be law. To call the
Nazi system 'legal' and to call its rules laws' was a
false description of what they were. They were
instruments of an arbitrary and tyrannical regime.

The "Grudge The 'grudge informer' problem illustrates a


Informer" fundamental difference of views about the nature of
law and its relationship with morality.

It is called the grudge informer to cover events


where one person reported another for trivial
crimes, which nevertheless carried the death penalty
(for exampled speaking against the Fuhrer or the
government), to settle feuds or to get revenge, but
effectively using the state machinery to try to
commit murder.

Fuller records the following case:


After the War a German woman was prosecuted for
denouncing her husband to the authorities in
accordance with the anti-sedition laws of 1934 &
1938. He had made derogatory remarks about
Hitler, The husband was prosecuted and convicted
of slandering the Fuehrer, which carried the death
penalty. Although sentenced to death, the husband
was not executed but was sent as a soldier to the
Eastern front. He survived the war and on his
return instituted proceedings against his wife.

She argued that she had not in fact committed a


crime because a court had sentenced her husband in
accordance with the law of the time.

She was convicted of 'illegally depriving another of


his freedom' (rechtswidrige Freiheitsberaubung), a
crime under the Penal Code, 1871, which had
remained in force throughout the Nazi period. The
Nazi laws were, the court said, "contrary to the
sound conscience and sense of justice of all decent
human beings," (1951).

There were other similar prosecutions.

Immoral legal However, Hart and Fuller agree that immoral and
systems unjust legal systems are unlikely to be stable and
collapse when long-lived. Lacking morality and justice, cannot
the regime command the allegiance of the people and must
falls depend upon repression. When the repressive
regime falls, its system falls with it.

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