Notes and Thoughts on H. L. A. Hart’s Grudge Informers and the Rule of Law
Within philosophy of law, the traditional main positions are what’s know as natural law and legal positivism. Simply put, natural law is the idea that there is some sort of relationship between the law and morality (usually, law arises out of morality). Legal positivism, on the other hand, is the idea that the law and morality are separate. The position one takes in this debate has important consequences when we consider the source of the underlying authority of the law and one’s duty to obey the law.
Legal Philosophy In Action!!!
Lets look at an actual case so we can see how the issues in this debate come to life. This is the case of the “grudge informer”: i.e., when a person intentionally informs on another to get them in trouble. In this particular case the law for which a person is convicted is of questionable moral legitimacy. The actual case we will look at is from post-WWII Germany.
During the Nazi regime, there were laws against making disparaging remarks against Hitler. A woman–lets call her Olga–wanted to get rid of her husband, so she reported her husband to the Nazi authorities when he made statements that were anti-Hitler. She was under no legal obligation to report him, but she took it upon herself to do so. Her husband–lets call him Helmut–was arrested and sentenced to die the death (he was instead sent to the front).
In 1949 (post WWII), the wife was prosecuted in a German court for “illegally depriving a person of his freedom” which was a crime under the German Criminal Code of 1871. The wife argued that her husband’s punishment was legal under the Nazi laws, and so she had not acted illegally. The court of appeals ultimately ruled that even though Helmut had violated a Nazi law, that law “was contrary to the sound conscience and sense of justice of all decent human beings.”
Lets take a step back and look at these events within the context of the postivist vs. naturalist debate. Recall that the positivist holds that a law is a law, regardless of whether you think it’s moral, and so you have to follow it (but you can object to it and try to change it through normal legislative procedures). The naturalist says, if a law is unjust/immoral (pick your language) then it is not a “true” law, and you are not obligated to follow it.
So, Olga was giving a positivist argument. She was all, um…”the law said if you talk smack about H-dawg then you goin’ to jail, foo…and Helmut was talkin’ smack. I di’int do nothin’ wrong, that foo Helmut was jibber jabberin’, not me.”
And Helmut was all, “natural law it da best. Jus’ cuz some asshole makes a crazy law don’t mean it’s legit, or you gotta follow it. If that was true, then any crazy person who gets into power can make crazy laws an’ we all gotta follow them…that’s just wack.”
An’ I was all…how come Helmut and Olga talkin’ like they from the hood, aren’t they German?
Lets look at the case through the lens of a legal positivist. From this point of view Olga did nothing wrong by following whatever laws applied at the time.
The obvious objection is that the law that she followed was immoral/unjust. But, if we set the precedent that people can make it a matter of conscience to follow or disregard laws based on their ideas of morality how can the law have any force if it becomes a matter of individual discretion? And more problematic, if everyone adopts the naturalistic attitude, how can there be any law at all except everyone’s subjective laws?
Even if we say one ought not to follow immoral/unjust laws we have the problem of determining what laws are immoral/unjust. Anyone who thinks there is consensus within a country about moral issues has never read a newspaper. Lets lower the bar even further and say that there’s a hypothetical society were everyone magically comes to a consensus on all moral issues and subsequently changes all their non-conforming laws to conform with it. What do we do with everyone who previously acted on laws that are now considered unjust? Do we retroactively arrest and convict them? What about the people who turned people in for breaking the previous unjust laws? What do we do with them? There are so many problems it’s making my head spin. What do? What do?
Obviously, you ax a famous legal philosopher. Let me introduce my main man, H. L. A. Hart. He says that although we may sympathize with the objective of the German court to punish someone for an immoral act, we need to recognize that it was achieved by declaring that a 1934 law was actually not a law. This puts into question the legitimacy of all laws because, as I’ve already mentioned, who’s to say that a law we have now might be seen as immoral in the future? And, we might be stripping away the legitimacy of all law because we are sending the message that people, in some cases, should, nay, must act contrary to the law!
Hart says instead ruling based on the principle that Olga’s actions were immoral there were two other choices: (1) let the woman go unpunished. (2) punish the woman with the introduction of a retroactive law and “with a full consciousness of what was sacrificed in securing her punishment in this way.”
So, lets review the choices and the problems with each one. If we convict her using the logic of the German court, we undermine the integrity of the law (generally) because there is no way of knowing if a law that we act according to might later be considered a crime and lead to our punishment. In short, one day it’s a law, another day it’s a crime. It’s very difficult for a legal system to maintain legitimacy if this occurs frequently. If we decide we don’t want to compromise the integrity of the legal system we can choose not to punish Olga. But this also sends the wrong message, that there are no consequences to acting like a robot when the law compels us to do immoral things. It divests the individual from considering matters of responsibility for their actions.
Last we can punish Olga by introducing a retro-active law with a full awareness of everything that’s at stake. The dangers of this route are that we undermine the legitimacy of law and consequentially weaken the compulsion to obey it. On the happy side (Yay!), if we acknowledge all the mitigating factors in our judgement, we can minimize the damage that he legitimacy the institution of law–it would “at least have the merits of candour.” The idea is that, by acknowledging the difficulties brought about by the other two choices a balance is struck between personal accountability for one’s actions and obligation to the law. This third choice is the lesser of the evils, and such a choice must be made “with the consciousness that they are what they are.”
In a nutshell, I think what Hart is proposing is that when we are faced with a difficult situation like Olga’s case we need to say, “look, if we choose to convict her on the grounds that what she did was immoral, then we grant too much power to individuals to decide whether they will obey laws or not, and law ceases to have compulsion and be universal. If we don’t punish her, then we are indirectly condoning immoral behavior and removing from individuals all personal responsibility for action. So, we are left with a third option, which isn’t perfect, but strikes some sort of balance.
Think On It
So, is a law always a law? If not, who gets to decide if a particular law is a law? The individual or a group? Give up? The answer is so simple: It’s whatever Vishnu decreed in the Upanishad. Duh!
Notes and Thoughts on H. L. A. Hart’s Grudge Informers and the Rule of Law