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1. The Internal Morality of Law

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After his departure his wife reported his remarks to the local leader of the Nazi party. ... After the war the informing wife was tried for having procured the ... – PowerPoint PPT presentation

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Title: 1. The Internal Morality of Law


1
1. The Internal Morality of Law
  • Professor Hart seems to assume that evil aims
    may have as much coherence and inner logic as
    good ones. I, for one, refuse to accept that
    assumption.
  • coherence and goodness have more affinity than
    coherence and evil.
  • when men are compelled to explain and justify
    their decisions, the effect will generally be to
    pull those decisions toward goodness, by whatever
    standards of ultimate goodness there are. FTL 636

2
A functioning legal order
  • When it is saidthat all law simply represents
    that public order which obtains under all
    governmentswe must mean a functioning order, and
    such an order has to be at least good enough to
    be considered as functioning by some standard or
    other FTL 644

3
Incoherent application of the law
  • Let us suppose an absolute monarch who from
    time to time issues commands, promising rewards
    for compliance and threatening punishment for
    disobedience. He is, however, a dissolute and
    forgetful fellow, who never makes the slightest
    attempt to ascertain who have in fact followed
    his directions and who have not. As a result he
    habitually punishes loyalty and rewards
    disobedience. FTL 644
  • Moral of the story Law requires some degree of
    consistency of application

4
Unclear and incoherent norms
  • Now imagine that the absolute monarch becomes
    hopelessly slothful in the phrasing of his
    commands. His orders become so ambiguous and are
    uttered in so inaudible a tone that his subjects
    never have any clear idea what he wants them to
    do. Here, again, it is apparent that if our
    monarchwants to create in his realm anything
    like a system of law he will have to pull himself
    together and assume another responsibility.
  • Moral of the story legal norms have to be
    sufficiently clear and coherent that people can
    successfully use them to guide their behavior

5
Retroactive and secret norms
  • A system of entirely retroactive norms would not
    allow people to guide their behavior by the law
    (the law valid for T1 would never be known until
    T2). FTL 649f
  • A system of entirely secret norms would also make
    it impossible for citizens to follow the law. FTL
    651f

6
Whats the point?
  • That some of the Nazi laws were so defective as
    laws (that is, in terms of the internal
    morality of law) that we do not need to appeal
    to higher law, or to a dismissive judgment, in
    order to say that they were not valid law.

7
Les Greens criticism
  • these virtues are minor there is little to be
    said in favour of a clear, consistent,
    prospective, public and impartially administered
    system of racial segregation, for example.
  • Les Green, Legal Positivism
  • http//plato.stanford.edu/entries/legal-positivism
    /

8
2. Fullers criticisms of Harts view of the
Nazi cases

9
The problem of Nazi law in the postwar situation
  • It was impossible for courts to simply treat as
    void every decision and enactment that had
    emanated from Hitlers government FTL 648
  • On the other hand, it was equally impossible to
    carry forward into the new government the effects
    of every Nazi perversity that had been committed
    in the name of law. FTL 648
  • Note that many applications of tort, contract,
    property, and contract law during the Nazi era
    were perfectly acceptable under law that predated
    the Nazis.

10
The informing wife
  • In 1944 a German soldier paid a short visit to
    his wife and severely criticized Hitler and other
    Nazi leaders. After his departure his wife
    reported his remarks to the local leader of the
    Nazi party. The soldier was tried by a military
    tribunal and sentenced to death, but was spared
    and sent back to the front. After the war the
    informing wife was tried for having procured the
    imprisonment of her husband. Her defence rested
    on the ground that her husbands statements to
    her about Hitler and the Nazis constituted a
    crime under the laws then in force. FTL 653

11
What Hart says about the informing wife
  • The wife was prosecutedfor an offense which we
    would describe as illegally depriving a person of
    his freedom. This was punishable as a crime
    under the German Criminal Code of 1871 which had
    remained in force continuously since its
    enactment. The wife pleaded that her husbands
    imprisonment was pursuant to the Nazi statutes
    and hence that she had committed no crime.
    SOLAM 619

12
What does this have to do with positivism and
natural law?
  • An advocate of natural law might say that deeply
    unjust Nazi laws and decisions were not fully
    legal and hence did not need to be taken
    seriously in the postwar situation.
  • An advocate of positivism might say that deeply
    unjust Nazi laws and decisions were in fact valid
    law (even though a decent citizen would have
    violated them). This seems to be Harts view.
    Professor Hart condemns without qualification
    those judicial decisions in which the courts
    themselves undertook to declare void certain of
    the Nazi statutes under which the informers
    victims had been convicted. FTL 649

13
What Hart finds objectionable
  • The court of appeal to which the case
    ultimately came held that the wife was guilty of
    procuring the deprivation of her husbands
    liberty by denouncing him to the German courts,
    even though he had been sentenced by a court for
    having violated a statute, since, to quote the
    words of the court, the statute was contrary to
    the sound conscience and sense of justice of all
    decent human beings.
  • SOLAM 619
  • the special importance of these cases is that
    the persons accused of these crimes claimed that
    what they had done was not illegal under the laws
    in force at the time. This plea was met with
    the reply that the laws upon which they relied
    were invalid as contravening the fundamental
    principles of morality.
  • SOLAM 618

14
Harts proposal for punishing the informing wife
  • Many of us might applaud the objectivethat of
    punishing a woman for an outrageously immoral
    actbut this was secured only by declaring a
    statute established since 1934 not to have the
    force of law, and at least the wisdom of this
    course must be doubted. There were, of course
    two other choices. One was to let the woman go
    unpunished. The other was to face the fact that
    if the woman were to be punished it must be
    pursuant to the introduction of a frankly
    retrospective law and with a full consciousness
    of what was sacrificed in securing her punishment
    in this way.Odious as retrospective criminal
    legislation and punishment may be, to have
    pursued it openly in this casewould have made
    plain that in punishing the woman a choice had to
    be made between two evils, that of leaving her
    unpunishment and that of sacrificing a very
    precious principle of morality endorsed by most
    legal systems. SOLAM 619

15
Fuller on Whats Wrong with Harts view of the
Nazi cases (1)
  • We do not need to appeal to higher law to see the
    problems with key parts of Nazi law. Appeal to
    the internal morality of law is sufficient.
  • It is not implausible to see some of the Nazi
    statutes as never valid. I should like to ask
    the reader whether he can actually share
    Professor Harts indignation that, in the
    perplexities of the postwar reconstruction, the
    German courts saw fit to declare this thing not a
    law. FTL 655

16
Fuller on whats wrong with Harts view of the
Nazi cases (2)
  • The situation is not that legal positivism
    enables a man to know when he faces a difficult
    problem of choice, while Radbruchs beliefs
    deceive him into thinking that there is no
    problem to face. The real issue dividing
    Professors Hart and Radbruch is How shall we
    state the problem? What is the nature of the
    dilemma in which we are caught?
  • I do not think it is unfair to the positivistic
    philosophy that it never gives any coherent
    meaning to the moral obligation of fidelity to
    law. FTL 656

17
3. Criticisms of Harts theory of judicial
interpretation
  • Fullers complaintfair or not--is that Harts
    account in terms of core and penumbra neglects
    the general purpose of the statute and the
    context in which a word or sentence is used

18
The importance of context
  • What would Professor Hart say if some local
    patriots wanted to mount on a pedestal in the
    park a truck used in World War II? Does this
    truck, in perfect working order, fall within the
    core or the penumbra? FTL 663
  • Should we say that the statute meant that
    vehicles should not be driven (as opposed to
    displayed) in the park? To answer this we may
    have to guess its purpose.
  • Should we say that the statute implicitly
    contained an exception for maintenance vehicles,
    construction vehicles, emergency vehicles, and
    the like?

19
Sleeping in the railway station
  • Compare two cases under a statue making sleeping
    in a railway station a misdemeanor
  • The first is a passenger who was waiting at 3
    A.M. for a delayed train. When he was arrested
    he was sitting upright in an orderly fashion, but
    was heard by the arresting officer to be gently
    snoring.
  • The second is a man who had brought a blanket
    and pillow to the station and had obviously
    settled himself down for the night. He was
    arrested, however, before he had a chance to go
    to sleep. FTL 664
  • What lessons should we draw from this lovely
    parable?

20
Fuller notes that the focus of interpretation is
rarely a single word
  • Justice Scalia The statute at issue provided
    for an increased jail term, if during and in
    relation to a drug trafficking crime, the
    defendant usesa firearm. The defendant in
    this case had sought to purchase a quantity of
    cocaine and what he had offered to give in
    exchange for the cocaine was an unloaded firearm,
    wjwehich he showed to the drug-seller. A Matter
    of Interpretation, 23-24.
  • A point not explicitly made by Fuller is that
    statutes must often be interpreted in light of
    competing considerations. Recall Riggs v. Palmer.

21
Is Fuller fair to Hart?
  • Hart wrote Austinwas very much alive to the
    character of language, to its vagueness or open
    character he thought that in the penumbral
    situation judges must necessarily legislate,
    andhe berated the common-law judges for
    legislating feebly and timidly and for blindly
    relying on real or fancied analogies with past
    cases instead of adapting their decisions to the
    growing needs of society as revealed by the moral
    standard of utility.
  • SOLAM 609

22
The theory of meaning
  • Professor Hart seems to subscribe toa theory
    which ignores or minimizes the effect on the
    meaning of words of the speakers purpose and the
    structure of language. FTL 669
  • Useful distinctions
  • Language meaning--the dictionary meaning of a
    word. Most words are ambiguous in the sense of
    having several meanings
  • The speech act--stating, questioning,
    commanding, etc. Irony might be treated here
  • The utterance meaningthe meaning of a sentence
    containing the word as it was used to communicate
    some message by a particular speaker at a certain
    time, in a particular context, and with some
    purpose.
  • The sentence and paragraphdoes the next
    sentence qualify the sentence or suggest
    competing considerations? Does the sentence
    structure make the word ambiguous. E.g., If you
    go to war you will destroy a great nation.
  • The evolved legal meaning as it emerges from
    previous decisions and interpretations. This
    often modifies the utterance meaning.
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