Read this excerpt from H.L.A. Hart’s “Positivism and the Separation of Law and M

by | Feb 1, 2022 | Philosophy | 0 comments

Read this excerpt from H.L.A. Hart’s “Positivism and the Separation of Law and Morals”:
“In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front.
In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitsberaubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, to quote the words of the court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.”
This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective – that of punishing a woman for an outrageously immoral act — but this was secured only by declaring a statute established since 1934 not to have the force of law, and at least the wisdom of this course must be doubted. There were, of course, two other choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way.
Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour. 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. Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are. The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another… This is surely untrue and there is an insincerity in any formulation of our problem which allows us to describe the treatment of the dilemma as if it were the disposition of the ordinary case” (Hart 1958, 618-620).
Hart lays out three ways one might deal with this grudge informer case. They are underlined in the text. Here are the options put in my words:
Punishthewoman,asthe1949courtdid,forviolatingaprincipleofconscience.Thisisthe natural law approach Radbruch endorses.
Donotpunishher,onthegroundsthatshedidnotviolateanylawinforceatthetimeof her conduct. Call this ‘the first positivist response.’
Punish her; but do so using a new law retrospectively applied. This is the approach Hart seems to prefer and can be called ‘the second positivist response.’ It sacrifices what he calls “a very precious principle of morality endorsed by most legal systems,” namely the principle ‘No crime without law’ (in Latin: Nullum crimen sine lege).
Hart thinks that we choose the third response once we weigh the moral evil of letting her go free against the moral evil of retrospectively applying law. He writes, “Laws may be laws but too evil to be obeyed” (620). The lesser of the two evils is the latter. Candor is the main virtue of this approach according to Hart (619-21).
Which option do you think is right? What should the court have done?
Please note that, for the purposes of this paper, please assume these two things:
1. The woman did what she is accused of doing (she intentionally sought to have her husband killed by the Nazis).
2. She was not acting under an excusing condition. For example: She was not being abused by her husband; nor was she under the delusion that she was being abused by him. So she was not trying to defend herself (nor did she think she was trying to defend herself). Also, she was not suffering from a psychological condition that made her unable to resist the impulse to kill him; she was able to act on intentions formed on the basis of her beliefs and desires.

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