Reading guide for Fri. 2/9: H. L. A. Hart, “Positivism and the Separation of Law and Morals,” secs. IV-VI (Culver, pp. 134-145) and Fuller, “The Problem of the Grudge Informer” (Culver, pp. 172-177)
 

The piece by Fuller is a hypothetical situation based on the sort of historical situation Hart describes in his section IV. That sort of example will be our main focus in this class. As you read it, think where you stand, both regarding this case and the issue between natural law theory and legal positivism that it raises. Hart’s argument for the positivists’ side has some similarity to points made by Kelsen (in section I of “The Pure Theory of Law and Analytical Jurisprudence”) but he will go on section VI to distance himself from the “non-cognitive” view of ethics that Kelsen espouses.

Although we are unlikely to devote much time to Hart’s points in sections V and VI, they are certainly worth thinking about. In V, he indicates how far he is prepared to go in granting a natural basis for law. Ask yourself if he should go further or if he has already gone too far. In VI, he returns to issues related to the sort of penumbral cases he discussed in section III, but he comes at them from different direction. Think whether you agree with the scope he gives to judicial legislation in what he says there; this will become an important issue when we turn to the views of Ronald Dworkin (who, although on quite different grounds than Fuller’s, argues for something like the view of penumbral cases that Hart finds in Fuller).

If you are curious about the actual German cases that Hart mentions, here are some references (and links to them).

• The somewhat inaccurate report that Hart relied on appeared in a section of the Harvard Law Review deovted to reports of recent cases:

“Criminal Law—In General—German Citizen Who Pursuant to Nazi Statute Informed on Husband for Expressing Anti-Nazi Sentiments Convicted under Another German Statute in Effect at Time of Act,” Harvard Law Review, vol. 64 (1951), pp. 1005-1007 (on JSTOR).

• Hart’s paper was followed in the same issue of the Harvard Law Review by a reply by Lon Fuller. Fuller discussed the grudge-informer cases in sections V-VI (pp. 648-661) of his paper:

Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review, vol. 71 (1958), pp. 630-672 (on JSTOR).

• When he discussed these issues in his book The Concept of Law, Hart noted the following attempt to provide a more accurate account of the cases:

H. O. Pappe, “On the Validity of Judicial Decisions in the Nazi Era,” The Modern Law Review, vol. 23 (1960), pp. 260-274 (on JSTOR).