Oren Gross, University of Minnesota Law School, has posted What Both Hart and Fuller Got Wrong, which appears as 11 Wake Forest L. Rev. Online 54:
In the famous debate between H.L.A. Hart and Lon Fuller on the pages of the Harvard Law Review, Nazi law served as a litmus test against which each side measured how his, and the other’s, position stacked up. For Hart, law was law regardless of its possible immoral nature. However, if too evil, it could be disobeyed. For Fuller, morally repugnant laws were simply not laws at all.
While disagreeing on this fundamental point, both Hart and Fuller shared, uncritically, a basic factual premise with respect to the legal situation that existed in the Weimar Republic and later on in the Third Reich. In “Positivism and Fidelity to Law” Fuller argued that “in the seventy-five years before the Nazi regime the positivistic philosophy had achieved in Germany a standing such as it enjoyed in no other country.” For his part, Hart accepts comments made by Gustav Radbruch including Radbruch’s statement that legal positivism has been virtually “unopposed by German lawyers for many decades” prior to the rise of National Socialism.--Dan Ernst
This article argues that while Hart’s and Fuller’s shared view of the legal experience in both the Weimar Republic and the Nazi state may not have impacted greatly their jurisprudential stances, it is significant to point out the historical distortions inherent in their understanding of the legal reality leading up to, and pertaining during, the Nazi regime. In fact, it is argued, while National Socialism employed its particular—perverted to be sure—vision of “natural law,” it was the opponents of that regime that argued from the perspective of legal positivism.
