Hart-Fuller debate

The Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart published in the "Harvard Law Review" in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Appearing in 1958 in the "Harvard Law Review", Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.

Philosophy

Positivists believe in a separation between the law as it "is" and the law as it "should be". Legal rights and moral rights are not related, beyond mere coincidence. Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A "core" case would be one that the statute is intended to cover. In the classic example, a statute that bans vehicles from a park obviously is intended to cover cars. A "penumbra" case would be one not considered by the creators of the law, such as an airplane in the example above. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words of the statute.

The natural law view believes that the creation of law should be based on natural laws or common morals. Laws are viewed based on purpose, not on meaning of the words. In the vehicle in the park example above, Fuller would say that it would depend on the purpose for banning vehicles from the park. For example, if the purpose were to prevent noise pollution, a bicycle would not be a vehicle for the purposes of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpretation of statutes relies much more heavily on legislative history.

Reference

*cite journal |last=Hart |first=H. L. A. |authorlink= |coauthors= |year=1958 |month= |title=Positivism and the Separation of Law and Morals |journal=Harvard Law Review |volume=71 |issue=4 |pages=593–629 |doi=10.2307/1338225 |url= |accessdate= |quote=
*cite journal |last=Fuller |first=Lon L. |authorlink= |coauthors= |year=1958 |month= |title=Positivism and Fidelity to Law — A Reply to Professor Hart |journal=Harvard Law Review |volume=71 |issue=4 |pages=630–672 |doi=10.2307/1338226 |url= |accessdate= |quote=

External links

* Jan Komárek: " [http://jinepravo.blogspot.com/2008/01/jet-ke-konferenci-k-padestinm-debaty.html Ještě ke konferenci k padesátinám debaty mezi HLA Hartem a Lonem Fullerem] " cs icon