The point of Hart’s article is to defend a distinction between law and morality. We mentioned his basic rationale for this last week, with the Anarchist and Quietist fallacies. In today’s session, we put this distinction to the test with a real case involving Nazi law.
As Hart presented it, we face a choice between two unpalatable options:
In Hart’s opinion, 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), 619. But Hart thought they just swept the problem under the rug rather than confronting and solving it.
We were nicely divided in our opinions about whether the courts should seek to see that justice is done or more strictly follow the written law.
On the side of justice, Joseph (eventually) said that morality is generally more important than legality. Graham noted that it would have been impossible to prosecute some war crimes if we were to limit ourselves to pre-existing law. And James added that it is desirable for political leaders to know that they can’t evade prosecution for misdeeds simply by writing very permissive statutes.
On the side of law, Joseph (initially) said that he didn’t think that in this particular case it was more important to avoid a retroactive law than it was to see that justice was done: punishment wouldn’t accomplish much here, he thought. Sydney added that retroactive laws are unfair. And Callum expressed doubts about whether it is appropriate for judges to bring consideration of justice into their decisions, as people’s opinions about justice vary too widely for the purposes of making legal decisions. Tracy agreed, emphasizing the importance of predictability in the law.
We frequently returned to the disadvantage of using retroactive law: people can’t comply with the law if its rules change after the fact. I think Joseph is right to say that a few isolated uses of retroactive law wouldn’t necessarily be a disaster. But if this happens too often, no one will know whether they’re really supposed to comply with the published rules or not.
Hart insisted that the distinction between law and morals does not subordinate morality to law. It’s true that, in his opinion, there could be immoral laws, requiring us to do immoral things. But it doesn’t follow that he thought we would have to comply with immoral legal obligations. On the contrary, it’s important to distinguish law and morality so that moral criticisms of the law can be clearly made and understood. He expressly agreed with the “conviction that if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and to withhold obedience.”Hart, “Positivism and the Separation of Law and Morals,” 617.
But there is a problem that Fuller put his finger on. What are judges supposed to do when faced with an immoral law or result? Does this plain moral obligation apply to them? It looks as though Hart faces a dilemma. If he says “yes,” then it appears that the distinction between law and morality doesn’t amount to much. Even if law and morality are distinct, a judge will still consult both her moral and legal views in deciding your case. So, from the perspective of someone using the legal system, they might as well be merged. If he says “no,” that judges should not follow their moral obligations when they clash with the law, then it appears that he really is committed to putting the law above morality after all. At the very least, there’s a good question about how judges are supposed to think about their jobs.
I don’t mean to suggest that this is an impossible problem for Hart. Maybe he could overcome it. But I do mean to say that this is a problem that I don’t think he adequately addressed in his article.
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 many moral rules with informal kinds of punishment: we cut off social relationships and try to induce feelings of guilt and shame. The failure to punish her under the law doesn’t necessarily mean that the society would have to condone her behavior or that she would have gotten away with int.
Second, there might be a case for thinking that some punishments can have a non-legal basis. This is a way of getting around the problem with the war crimes cases that Graham mentioned: some crimes are bad enough that they deserve punishment even if there are no laws stipulating the punishments. It seems to me that if we’re going to go that route, it’s desirable to use legal proceedings in doing so. Insisting on evidence, fair trials, and other legal procedural rules is a way of keeping these trials from being merely victor’s justice or political. This is so even if there isn’t really any law backing them. In other words, I can see why it’s a good thing that legal procedures are used to inflict merely moral punishments. One consequence of doing that, however, is that it blurs our understanding of exactly what we’re doing by making punishment based solely on morality appear to be based on law.