George Eliot, in her book Silas Marner, wrote that the truth is somewhere in between, and it is my opinion that this applies to the Hart-Fuller debate (the Hart-Fuller debate being representative of the greater ongoing debate between the legal positivists and the natural lawyers).
It is telling that, at least to me, in Hart's argument, the theory is strong but the practical is weak; whereas in Fuller's argument, the theory is weak but the practical is strong. This is consistent with what happened in reality: Hart the philosopher was supported by other philosophers, while Fuller the practitioner was backed by other practitioners. My purpose in indicating all this is to outline my own perspective of the debate: I think the positivist approach lends clarity to the relationship between law and morality, and is thus useful as a functional means. However, I find it unconvincing in the final test of reality, and this is where the natural lawyers' views win me over.
[...] Thus, I feel that there is some kind of natural affinity between the Confucians and the natural lawyers, because of their common moral core. Of course, I do not want to overstate their similarities, since, after all, commonalities can definitely be drawn between the Legalists and the natural lawyers, as well as between the Confucians and the positive lawyers. But it is true that they share the same basic inspiration—morality. In fact, Confucius not infrequently referred to the in more understandably translated terms, an inner moral law, which, in modern legal parlance, would be the natural law. [...]
[...] In both this issue and that of the comfort women, the Japanese state has denied the victims an official apology and compensation, insisting that there is simply no legal basis for either. In the case of the comfort women, claims for compensation under the Hague Convention and the International Labor Organization Convention Concerning Forced or Compulsory Labor have been rejected. While Japan has stated that individual comfort women have no right to compensatory claims under the former convention, the latter convention did not contemplate civil remedies. [...]
[...] Besides, I do not agree with Holmes when he says that he often doubts “whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” I think the very fact of meaning not being ever-fixed and clearly-defined in every case (or what Hart calls the “penumbra”) not only makes it preferable, but actually necessitates legal ideas being influenced by extra-legal concepts. Otherwise, where would we draw multiple interpretations from? [...]
[...] We see this mainly in the way the Japanese state has sought to defend itself against charges of crimes against humanity. Firstly, in response to attacks that the Japanese Constitution at that time, the Meiji Constitution, insured human rights for those who were Japanese citizens, it has alleged that these rights were only of the most basic nature, such as the freedom of religion and speech, which did not necessarily prohibit forced prostitution. It has also claimed that Koreans, coming only from a Japanese colony, were not entitled to these rights anyway since they were not full citizens of Japan nor full subjects of the Emperor. [...]
[...] How would we decide which interpretation is the best? Why would there even be the problem of interpretation? On top of this, if we were to make the law an isolated discipline, where would we derive the legal lexicon from? By the very fact of the change, growth, and evolution of the law, legal concepts expand and transform, and thence new legal terms must come from somewhere—and when they come from somewhere they will necessarily have additional semantic import. For this reason, I doubt that having the law as a subject insulated from all else is even possible, let alone ideal. [...]
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