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SYMPOSIUM ON THE HART-FULLER DEBATE

In Retrospect and Prospect

Concept Note

Undoubtedly, one of the most fascinating academic feats in jurisprudence is the famous Hart-Fuller
Debate that took place 52 years ago. However, the Debate has remained as vibrant as it was as the
various debates on it, throughout, manifest.

The stage for the said Debate was set when Professor Hart, Professor of Jurisprudence at Oxford
University, delivered his Holmes Lecture Series in Harvard Law School and the same came to be
published as “Positivism and the Separation of Law and Morals” in the Harvard Law Review in 1958.
Professor L.L.Fuller of Harvard Law School, and his group with whom Professor Hart had discussions,
claimed a right to reply. That came out in his article “Positivism and Fidelity to Law – A Reply to
Professor Hart” published in the same volume immediately in the pages following Professor Hart’s
article.

Professor Hart filed a rejoinder in the form of his famous work “The Concept of Law”. This was
countered by Professor Fuller in his work “The Morality of Law”. Professor Hart replied to this in
1965 in Harvard Law Review. Professor Fuller replied in the Second (Revised) Edition of his “The
Morality of Law”.

Admittedly, Professor Hart’s position, being a positivist, is that a legal system should be accepted as
it “is” and it is not necessary to go fishing as to what is “ought” to be. He decries the approach that a
legal system loses its sanctity just because it is contrary to morals. Evidently, he goes by his ‘Rules of
Recognition’ even though the same might lead to unjust laws.

Diametrically opposite to this is Professor Fuller’s view. He is of the opinion that a legal system has
to possess certain characteristic features if it is to command the fidelity of right thinking people.
This, he argues, is possible if there is respect for, what he calls, the ‘inner morality of law'. At the
heart of this is the idea that a legal system must provide coherence, logic and order. By fidelity to
law, he implies that a citizen owes a duty to obey only if this inner morality is present.

While Professor Fuller’s proposition is an extension of natural law, that of Professor Hart has its
roots in the Austinian Theory of Positivism. Interestingly, however, Professor Hart deviates from his
stated position and bats for minimum content of morality in law but maintains steadfastly that law is
not derived from moral principles and that there is no essential conceptual link between the legal
and moral. Professor Fuller, in his stead, claims that this is a common meeting ground between the
two extreme ideologies.

Since inception, much has been said and written about this legendary Debate. Nonetheless, it has
not lost its charm and appeal. It hardly needs an emphasis that the Debate should be analysed
threadbare in this era, and at a time when the powers that be are increasingly replacing rule of law
by the rule of men.

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