We spent about two-thirds of our time talking about how Hart addressed the question of what to do about people who did bad things under the cover of Nazi law.
The rest of our discussion concerned what it might mean to think that law and morality are united, such that the separation of law and morality would be a matter of controversy.
As Hart presented it, we face a choice between two unpalatable options:
The German court evaded this problem by denying that the statute she used as a defense really counted as a law on the grounds that it “was contrary to the sound conscience and sense of justice of all decent human beings.”** quoted in Hart, “Positivism and the Separation of Law and Morals, Harvard Law Review 71 (1958), p. 619. But Hart thought they just swept the problem under the rug rather than confronting and solving it.
We spent a fair amount of time on the Court’s assertion about morality. In other words, our discussion was not directly about the claim that law and morality are linked. Rather, it was a direct challenge to the Court’s claim that it is obvious that the statute was contrary to the conscience and sense of justice of all decent human beings. Quite a few of us said they weren’t sure of that. Roslyn (and I) disagreed.
Our discussion skirted the edge of moral relativism. I steered us away from that because I thought we ought to stick to material that everyone in the class had a chance to prepare and think about. But the topic of moral relativism and its relationship to tolerance is very interesting and I highly recommend classes that address it directly.
There are two alternatives that I thought were worth mentioning.
First, it isn’t obvious to me that the appropriate punishment for the woman had to come from the state. We enforce our moral rules with informal kinds of punishment: we cut off social relationships and try to induce feelings of guilt and shame.
Second, as Jamie pointed out, there might be a case for thinking that some punishments can have a non-legal basis. This was his way of getting around the problem with the war crimes cases. I added at the end of class that there are good reasons for importing some of the practices of the legal realm into enforcing our moral codes in cases like that.