p.p1 The Classical Natural Law, Internal Morality Theory, Classical

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Laws of any country define the discipline of that country. The legal
judiciary system of a country is there for societies in a particular country
to follow a close set of rules and this the the main force that maintains the
peace and order of that country. In the earlier centuries, the Greek and
Roman classical philosophers and jurists articulated the idea of natural
law. The principles of natural law refer to the application of reason to
interpret the social and personal human nature to infer necessary rules of
moral behaviour. Later, human-made laws were introduced and this was
seen as being in contrast with the natural law.
The idea that the law is just a set of rules is so rooted in or ways of
thinking about the law that the impacts of the law to the society is not
even given a second glance. This essay will focus on the statement that
the law must not be decided based on what it is but on the basis of what
the outcome is. First, I will provide an introduction on the legal theorists
I have chosen. Then, I will link the ideas of the legal theorists to the
words of Robert Cover. Finally, I will conclude with my opinion
regarding the statements made.
Many legal theories have been presented till today. The Classical Natural
Law, Internal Morality Theory, Classical Legal Positivism, H.L.A. Hart’s
Legal Theory, Legal realism by Holmes and Dworkin’s Legal Theory are
just some of the main legal theories that the modern legal theories have
been based on.1 This essay will focus on only the theories by Lon Fuller
and H.L.A Hart. These two theorists were leading theorists in conflicting
theories – Fuller focusing on the secular form of the natural law theory
and Hart focusing on legal positivism. These two conflicting theories
were specifically chosen to explain the contrasting ideas on natural theory
1  Journal, T. Y., The Yale Law Journal , The Yale Law Journal (1912) 114
and legal positivism and how can we apply it to the statement made by
Robert Cover.
The concept of morality and man-made law has always created hurdles in
the judiciary system. According to the Positive Law Theory, a law is a
solid rule that is made and there is no reason to make the law while
keeping morality or justice under consideration.2 The one belief that is
very closely associated with legal positivism is that there was a clear
separation between law and morality. The aim of legal positivists is that
the vital properties of law do not include moral bearings. Hart’s wrote an
articles in 1958 on the ‘Positivism and the Separation of Law and
Morals’3 and in his article he said that positivism is not a theory about the
lawyers’, judges’ or citizens’ actions, it is about the nature of law. Hart
does resolve to a single core positivist legal thought that ‘it is no sense a
necessary truth that laws reproduce or satisfy certain demands of
morality, though in face they have often done so.’4 Hart suggested that in
the process of making laws, factors like morality and justice must not be
brought in. Hart’s theory suggested laws to be “artificial” since these
were man-made and can always be changed.5 So, according to Hart’s
theory, the law should be based on what are good and bad. And because
of this, both moral and immoral laws exist in reality. However, most of
the time, outside the world of crime, the laws are slightly unrelated to
morality. For example, in America it is the law to drive on the left side of
the road and it is obvious that this law has very little to do with morality.
2  Morals, P. A., Positivism and the Separation of Law and Morals , Harvard Law Review, (1958) 595
3
 H.L.A Hart, Positivism and the Separation of Law and Morals, Harvard Law Review (1958)
4
http://www.iep.utm.edu/legalpos/  Accessed on 24 April2016
5  PRIEL, D., Sanction and Obligation in Hart’s Theory of Law.  Blackwell Publishing Ltd. (2008).
There are many other philosophers, influenced by Hart’s views that do
deny a connection between morality and law.
The first theory of law that came into existence was the theory of natural
law and it was supported greatly by many famous theorists such as
Aristotle and Aquinas. Natural theory of law asserts that there is a
connection between morality and law. Natural laws are universally
applicable to human conduct and man-made laws are laws that were
constructed by human beings to accommodate to the requirements of
natural law that needs to adapt to different and changing society.6 Manmade
law was made to adjust natural law to often varying circumstances.
Natural law is not created to dictate, for example, that we must wear
seatbelts in a car at all times. The human community requires regulations
to make sure that law is followed and these regulations are somewhat
guided by natural law, i.e. by the requirement of natural law the safety of
the passenger should always be protected. This shows that although
natural laws are always conflated with man-made laws, the two are
somewhat recognisibly different.
Lon Fuller was a revolutionary legal philosopher that defended the
natural theory of law. Fuller’s legal philosophy explores the ‘inner
morality of law’ in his leading work, ‘The Morality of Law’.7 Fuller set
out a distinctive argument for the significance of morality in the legal
world, debating that there is no conceptual separation between law and
morality by reason that law is a moral commitment. He emphasizes that
when we try to understand the law, the discussion about morality is
simply inevitable. Fuller defines the law as a way of achieving social
6
 Chidsey, H. C., Natural vs. Man Made Laws .  Pascagoula Mississippi Bar (1920)
7  Lon L. Fuller, The Morality of Law , Yale University Press (1977)
order by ‘subjecting human conduct to the governance of rules.’8 He is
convinced that the rules and norms that are created are put into the legal
procedures for a purpose. Fuller also set out eight ‘principles of legality’
that he says are necessary characteristics of ‘inner morality’ and these
conditions must be present in the legal system to some degree, and the
essence must be of a moral base.
The Hart-Fuller debate was a popular debate on morality and law
between Hart and Fuller and it was published in the Harvard Law Review
in 1958.9 It showcased a divide between the views in the positivist and
natural law philosophies. Hart obviously took the views of a positivist
saying that there is a separation between law and morality. Fuller, on the
other hand argued that there is a connection between law and morality.
As said above, since positivists believe that legal and moral rights are not
related unless there is a coincidence because there is are clear lines
between what law is and what the law should actually be. Hart put out his
believes in this debate saying that it is not necessarily wrong in making
decisions based on deduction and logic, just like it is not necessarily right
in using moral or social reasoning. A judge that interprets the law based
on a positivist view would look at the definition of the words in the
statute. However, the views of Hart were of conflicting views with the
views of Fuller. Fuller maintains that law and morality cannot be neatly
distinguished and his theory is based on the transparency of the law. In
Fuller’s eyes, he believed that the Nazi rules were not “laws” as it only
served as principles to uphold a cruel regime.
8  Barry Macleod-Cullinane, Lon L. Fuller and the Enterprise of Law  (1995)
9  Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart,  Harvard Law Review
(1958) Vol 71 pp 630-72
I think that Hart believes that legal rules are compulsory just like how any
other rules are. For example, if we want to score in basketball, you have
to get the ball into the net. But I’m sure no one thinks that these rules
were made up based on the concepts of morality. In my respectful
opinion, I believe that we should have higher expectations of the laws
that we have today. We want people to respect the legal system and not
think of the law as just a set of rules. Legal theory should definitely not
get stuck in the question of what law is; instead we should try to
understand what law does. And in understanding what law does, we in
my opinion, have to include the concepts of morality. The law is
something that deserves respect and loyalty.
Looking at majority of the legal theories, it can be found that the legal
theories that exist today define the law merely based on what is right and
what is wrong. Hart’s theories do not include the after effects of the law
applied. The example of the laws made in relation to these theories shows
a dictatorship. In a dictatorship, only the dictator has a say on what is
right and wrong. When we look at the history of most of the dictators, it
can be seen that many innocent people lose their lives due to the poor
judiciary system.10 The same fate will be met in the modern era if all the
laws were made based on the fact that there is a clear separation showing
that certain things are right and certain things are not. A judge will come
to a decision based on her understanding and as an outcome; someone
loses everything – his freedom, his children, his property and his entire
life. This clearly shows that the application of the law does have an
10  Jack M. Balkin, S. L., Constitutional Dictatorship: Its Dangers and Its Design,  Yale Law School,
(2010)
impact on people. We should stop questioning what law is, instead we
should look closely on how does the law affect the lives of people.
This essay includes a famous epigram from Robert Cover and surely it
has come to no surprise that there is violence every single day and it is
done explicitly with the authorization of the legal institution with their
implied acquiescence. Law without violence is unthinkable, yet if law
were to be no more than violence it would not be law at all.11 Many
countries such as Malaysia and China still have the death penalty to curb
human trafficking. The law does certainly depend on violence and it is
used to actually counterpunch the more lethal violence that is out beyond
the legal boundaries.12 Legal theories tend to look so closely into what the
law is and they tend to tactically ignore the consequences of the pain that
the law produces.
Cover’s opening suggests a radical departure from thinking that the law is
just a set of institutional rules and principles.13 The law should be viewed
as a set of policies made to create a social control but rather as a narrative
prism through which we observe and filter the world of right and wrong,
valid and void, good and bad.14 When we take on this perspective, we see
the law as a magnificent set of resources for every part of human life.
Both Hart and Fuller do give us a definition of what law is from the
perspectives of a legal positivist and a naturalist. In my opinion, when we
look at how Hart interprets law as a set of rules and he mentions that
11
 Edited By Austin Sarat, Law, Violence, And the Possibility of Justice,  Princeton University Press,
(2001)
12  Edited By Austin Sarat, Law, Violence, And the Possibility of Justice,  Princeton University Press,
(2001)
13
 Julen Etxtabe, The Legal Universe After Robert Cover,  (2010) 4(1) 115-47
14
 Julen Etxtabe, The Legal Universe After Robert Cover,  (2010) 4(1) 115-47
there should be no intersection between morality and law unless it is mere
coincidence, we fail to acknowledge the consequences that these rules
produce. In this era, we cannot deny that there is no separation between
morality and the law. I have to agree with Fuller’s theory in stating that
there is a connection between morality and the law. ‘Though there can be
law without justice, justice is realized only through good law’15 and in my
opinion good laws are laws that include the concepts of morality.
Although Hart has a very conflicting approach, Fuller’s functional test
cannot be dismissed. He puts forward a theory that provides order and
clarity to the system of law. To actually make sure that the consequences
of the law passed is positive, it is necessary to include the concept of
morality in the law making process.
While making the law, there are numerous factors that should be kept in
consideration and legal theorists like Hart do not seem to consider any of
these. For example, in developed countries, majority of the people are
found to follow the law not because they fear the law but because they
respect it.16 But if we follow closely theories made by Hart, the laws are
made based on the fact that people will only obey the law if it is backed
up with a powerful force or authority. This will involve the prosecution of
people on even if a slightest mistake was made and this will fill people
with frustration. This will lead to a lot of people to lose respect for the
legal system. So, if laws are made, there should be observation of the
outcome of the application of the law. Whether the laws made will help
maintain the justice among citizens or will the laws made make people
rebel against the court of law. We should not only see what is right and
15  Edited By Austin Sarat, Law, Violence, And the Possibility of Justice,  Princeton University Press,
(2001)
16  R.Tyler, T., Why People Obey the Law.  London: Yale University Press (1990)
what is wrong, instead we should consider the impact that the law has on
the public. Will people at large benefit from the law passed?
From all the discussion above, it can be concluded that the legal theories
of positivism and naturalism require some serious reforms so that the
laws which are made in the future under the light of these theories serve
justice. Morality has always been a critical point in the law-making
process but in this century, we have to take into consideration the after
effects of the laws applied. Hart’s theories were all based on what is right
and what is wrong and it was entirely independent of morality and justice.
But this is not the way in which the law should be made in this era. Legal
theorists must see what the laws made are capable of and how this will
affect the amount of respect people have on the law and this is why I
agree with Fuller’s theory. Fuller’s theory allows us to understand that
there is no clear distinction between law and morality and that it is very
interrelated. Legal theorists should stop focusing on defining what law is.
Instead, they should focus on how the law affects the entire community.
We should accept that in the legal system that we have today, we will
always have violent and non-violent laws, just and unjust laws. What is
important is that we have to know the impact of what all the laws have on
the society. After all, does law only take place in the field of pain and
death?17
(2435 words)
17
 Robert M Cover, Violence and the World , Yale Law School (1986)
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Edited by Austin Sarat,, Law, Violence, And the Possibility of Justice,
Princeton University Press (2001).
Eleftheriadis P., Law and Sovereignty (2007)
H.L.A. Hart, Law, Liberty, and Morality, Standford University Press
(1963).
Jack M. Balkin. S.L., Constitutional Dictatorship:Its Dangers and
Design, Yale Law School (2010).
Journal, T.Y., The Yale Law Journal, The Yale Law Journal (1912).
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Kelsen, H., General Theory of Law and State, The Lawbook Exchange
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Jurispudence Determined (2014).
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