H.L.A Hart, a British legal philosopher argued that a German woman who vindictively yet truthfully reported her husband’s seditious statements to the Nazi’s ought to be legally punished for her betrayal. Being set in 1944 Germany, the woman only followed the statutes put in place by the Third Reich, making it illegal to make statements detrimental to the government or impairing the military defense of the German people. In handing the German woman a legal punishment, a moral dilemma presents itself.
H.L.A Hart presents a case in which legal positivism rules supreme over natural law theory. In 1949, the German woman was prosecuted in a West German court for an offense that was described as illegally depriving a person of his or her freedom. In the words of the court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.” (Hart 27). The German court convicted the woman based upon principles of legal morality rather than legal positivism.
If Hart were to present a punishment, he would make sure it is pursuant to the introduction of a retrospective law and with full consciousness of what was sacrificed in securing her punishment. Hart would have tried the woman based on her violation, in the past, of a law that the German court should have been established in the present. However, with no present statute enacted, Hart would have let the defendant go based on the logic of legal positivism. In contrast, Hart’s approach is not morally sound as it sets a precedent that laws are to be accepted for what they are in technicality rather than looking at the moral foundation of laws, what they stand for and their ultimate purpose.
In opposition to natural law theory, Hart implies that legal rules are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such. In opposition to Hart, it is the people and society at large, each with individual views who set the tone for what the law ought to be. For instance, there is a constitution in each nation based upon a moral standard, that sets a foundation and it is up to the people to uphold that foundation. It is up to the people to be at the center of debate in the evolution of laws as time passes and social norms change. If unjust laws are created, it is up to the people to stand up for change. The people, who hold a moral foundation for the law are at the epicenter of it. Hart’s proposition to follow the law based upon the law set in stone is not morally sound as it does not hold the people of the nation accountable and does not set a precedent for people to rise and enact change. Not in accordance with legal positivism, the German courts established a precedent where moral principle of humanitarianism was used to punish local war criminals, spies and informers under the Nazi regime. In reply of the courts use of morality and perpetual verdict, Hart states the following, “It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems.” (Hart 27) In letting the woman go free or sacrificing the moral backbone that is existent in our legal systems, we would let go of principles that guide us as a people toward a greater good, changing the status-quo and standing up to the higher authority (government). As individuals, we all have given right of freedom, liberty, and the pursuit of happiness. When an oppressive authority takes away that inherent right, it is up to us as a people to stand up against it and not conform to the illegitimate authority. Natural law is unchanging over time and does not differ in various societies. Every person has access to natural law through reason.
The German woman should be held accountable to a higher law, a law that rules supreme over the horrific and illegitimate regime that was Nazi Germany. The Third Reich set upon unjust laws over Germany, instead of conforming, the duty of the people was to rise against the oppression and to stand up for a higher law. If a system of legal positivism is accepted as proposed by Hart, people will only conform to the technicalities of the law. If there is no moral foundation set upon in law, people will only continue to conform. Martin Luther King, who can be described as a poster boy for natural law theory states the following; “I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.” (Letter from a Birmingham City Jail). Legal positivism ignores civil disobedience and the respect for a moral foundation.
Society cannot enact change upon the status quo if “law” is just that what is written in the legislature and held upon by a higher authority. Laws can be unjust, and the only way to bring about change is through holding a firm moral ground. Martin Luther King fought for the moral rights of African-Americans, he rose above and with the help of civil disobedience, showed the world the unjust laws set upon him and the African-American community. The German woman did not take a stand against the oppressive Third Reich and abandoned her moral obligation. She conformed to unjust laws and abandoned her husband. And for this, she was rightfully punished for her actions based upon a higher moral law. Legal positivists are skeptical about the existence of universal moral principles and a way for these standards to be implemented into society in such a way that is not clouded by self-interest. Looking at the moral debate as an “Is vs. ought dilemma” states the following; just because we can discover natural law, doesn’t mean we ought to obey it. Given the case of the German woman, she more likely than not discovered the foundation of natural law and yet failed to obey it. In the face of oppression and unjust laws, she let the ultimate evil, the Third Reich prevail. Hart preaches a lesson in this story, one which goes as follows; “when we have the ample resources of plain speech we must not present the moral criticism of institutions as propositions of a disputable philosophy.” (Hart 28) The lesson, though thought-provoking ignores the effect moral philosophy of law plays on enacting change in history. If not for the principles of moral law, many war criminals of the Nazi regime would go unpunished and civil rights movements would not have been granted a foundation to build upon. Legal positivism states that a valid legal system has citizens accept the primary rules and have society’s officials accept the secondary rules as common standards for official behavior. The issue in this is that a valid legal system would promote civil disobedience in the face of unjust laws. Citizens have to accept the just primary rules, but if a majority of citizens find a law to be unjust, then it is their duty to rise against the law based upon the principles of natural law.
Originating with Saint Augustine of Hippo, the motto “Lex iniusta est lex” (English: An unjust law is no law at all) (Saint Augustine) dates to approximately 400 AD. Natural law principles provide people with a moral foundation, encourage just statutes and promote civil disobedience in the face of unjust laws. These principles are applied to historic documents such as The Declaration of Independence, the United States Constitution, and John Locke’s theory of natural rights for a reason. John Locke believed that all men have the inherent right to life, liberty and property. A higher authority as described by Hart, enacts those rights and laws. However, if that higher authority such as the Third Reich, in this case, fails to meet those standards, then the people have an inherent right to overthrow it. The German woman on trial ignored the foundation of law at heart and deprived her husband of his freedoms and adequate justice. Hart fails to acknowledge that moral standards held within the individual are a greater force than the laws enforced by a higher authority.