Deviated Controversy On The "Informer’s Case" Between Hart And Fuller

The controversy between H. L. A. Hart and Lon L. Fuller on the “informer’s case” wasoriginated from the different views on the “turn” of Radbruch and the wrong reports ofHarvard Law Review on the case. The controversy on relations between law and morality wasfurther developed into debate on how to solve cases for judicial justice and for the ideal of“Loyalty to Law”. As just for the solution itself, probably Hart’s solution retained thealertness on evil laws by admitting the objective existence of such evil laws; while Fuller’ssolution was more cautious and more forethoughtful, and had more in-depth and practicalunderstandings on the humanity. Fuller’s solution contained higher goals and had higheranticipations on the prospects of future laws.The controversy between Hart and Fuller on the “informer’s case” was just one chapterof their entire debate. At this point, their controversy had close relations with the legalprinciples gradually formed in such controversy. It were the continuously enriched anddeveloped legal theories that had supported their standpoints and opinions held by both ofthem in the controversy. However, Hart’s principles didn’t show exoteric expressions on therelevancy between laws and nations; while Fuller’s principles weakened such relevancy tosome extent.Cognitions on Radbruch’s “turn” by Hart and Fuller were the misunderstandings of thepost-war legal ideologies of Radbruch. The basic ideologies represented based on theRadbruch Formula in the Illegal Laws and Laws Beyond Laws are in accordance with thepositivism understanding of Radbruch that the purposiveness of laws were “at the bottomlevels” while the invariability of laws were generally superior to the justice of laws. Priorityon invariability by Radbruch further carried concerns on reality, on other words, theinvariability of laws require to “solve current hard cases according to proper interpretationsand current applicable laws as possible”. This aimed to ensure the continuity of the Germanlaws, promote confidence of the Germans on recovering the laws, and probably even to givean intended hint of the existence of German as an integrated sovereignty.In the actual case, the Bamberg of Appeal in practice skillfully applied the “Radbruchformula”. Though the judgment of “not guilty” was cancelled against the “Informing Wife”, ithasn’t denied the legal identity of the Nazi’s laws involved on the grounds of violence of theconsciences and senses of justice of the righteous people. Instead, the responsibilities of theInformer were investigated in accordance with Germany’s Penal Code (1871) that was still effective at the time of informing. Such an ideology in settling this case by the German Courthad the same considerations with Radbruch. It was intended to “solve hard cases in realitywith proper interpretations and currently applicable laws as possible”. Such a settlement bythe German Court was not only for the purpose of punishing the Informer and realize judicialjustice. In addition, it involved “considerations” on conditions of Germany where the regimewas changed,“the political entity no more existed”,“international personality wastemporarily suspended” and the victorious national had divided German into different sectionsfor separated administrations, etc. Efforts were made in the settlement of the case to ensurethe continuity of the German laws, promote confidence of the Germans on recovering thelaws, and probably even to give an intended hint of the existence of German as an integratedsovereignty.The controversy of Hart and Fuller on the “Informer’s Case” was deviated from theorientation of solution on such cased by German courts. Hart and Fuller in debate, one wentagainst the judgment ideologies and solutions of the German Court reported by Harvard LawReview while the other supported them. However, neither Hart’s solution to punish theInformer based on forepassed legislation with the premise of admitting the identity of Nazi’sevil laws, or Fuller’s solution to punish the Informer based on forepassed methods with thepremise of denying the identity of Nazi’s evil laws, were different from the actual judgmentideologies and solutions of the German Court.The wrong report in the Harvard Law Review was just the direct cause of the deviationof the controversy of Hart and Fuller on the “Informer’s Case”. As a matter of fact, there’refive contributive factors that deviated the controversy: First, misunderstandings of Hart andFuller on Radbruch and the misleading of the wrong report; Second, the absence of “sense ofparticipation”; Third, the absence of sympathies and detachment of Hart and Fuller incontroversy; Fourth; limitations of the legal theories of Hart and Fuller formed under normalpolitical conditions; Fifth, difference of cultures in the UK, US and though in German.Among the five factors, the last one is the most critical but still not fully valued factor.The article The problem of the Grudge Informer may be regarded as the extension of thecontroversy of Hart and Fuller on the “Informer’s Case”. If judged with the practical solutionsof the trial on the “Informer’s Case” by the German Court as standard, among the fivesolutions represented in the article, only the third one was identical with the actual solutionsof the German Court. Probably it was more suitable to the actual conditions of the country where the case happened and provided with more rationality.This paper consists of seven parts: Introduction; Chapter1: Theoretical Researches onthe Post-war “Turn” of Germany’s Jurisdiction and the Informer’s Case; Chapter2: Seekingfor Judicial Justice of the “Informer’s Case”; Chapter3: Disputes on Legal Theories; Chapter4: Surveys from Political Points of Views; Chapter5: Cultural Gaps in Laws Reflected in theControversy Between Hart and Fuller; the Conclusion.In the Introduction, this paper describes the standpoint, raises the question on thedeviation of controversy of Hard and Fuller on the “Informer’s Case”, briefly reviews thecurrent researches of scholars at home and aboard on such subject, and introduces the theoriesthrough this paper as well as research ideologies for perspective views on this case.Chapter1discusses the theoretical explorations on disposals of hard cases during the“turn” of Germany’s jurisdiction after the World War based on the post-war ideologies ofRadbruch; describes the “turn” of Radbruch’s legal theories after the World War, wrong reportof Harvard Law Review and the truth of the case; and analyzes the reason that Hart and Fullerselected this case as the focus of controversy.Chapter2makes introductions on the comments on the “Informer’s Case” reported bythe Harvard Law Review; describes the three debating focuses of Hart and Fuller on the case;analyzes the pros and cons of their solutions on realization of the ideal of “loyalty to the law”.In Chapter3, based on the fact that the controversy of Hart and Fuller on the “Informer’sCase” was originated from their different views on “what is law” and with the starting pointof different opinions and theoretical design on relations between the laws and morals, thischapter discusses different definitions made by them; identifies the legal theory basis of theidentity of the evil laws involved in this case by them, In addition, this chapter takes the keylinks in the legal theories of Hart’s and Fuller’s as analysis object and basis to respectivelydescribe the exoteric “expression” in Hart’s theories on the relevancy of the laws and thenations and the fact in Fuller’s theories in “weakening” the relevancy of the laws and thenations.Chapter4focuses on the post-war political conditions of German and the “legality” ofNazi’s regime in German as well as the Nazification of Germany’s jurisdiction; reveals thefact that political factors were considered in the trial of the “Informer’s Case”; demonstratesthe view that no radical “turn” was made in Radbruch’s theoretical standpoints after the WorldWar; and expresses the consistency between the actual solution of the “Informer’s Case” and the in-depth requirements of the “Radbruch Formula”.Chapter5analyze the five factors that deviated the controversy between Hart and Fulleron the “Informer’s Case”, of which the difference between legal cultures between the UK, USand German. It is also an important cause that the controversy failed to get back to the actualtrace of the case with the orientation deviated at the very beginning.In the Conclusion part, as judged with the actual solution of the disposal on the“Informer’s Case” by the German Court, the paper deems that the third solution would bemore rational among the five solutions proposed in the Challenge of the Hatred Informer.Meanwhile, the Conclusion also gives affirmation on the positive significance of thecontroversy between Hart and Fuller on the “Informer’s Case” and demonstrates theinspirations of such deviation on the actual case due to differences of legal cultures. Thispaper holds that, compared with the mistakes that Hard and Fuller had made in designingsolutions for the “Informer’s Case” where the legal cultures of Germany were ignored due tothe application of British and American legal theories in a “decontextualized” manner, as forChinese scholars in the course of reference and absorption of ideologies and theories inWestern laws, if applications are made without introspections as standards for judgments ofissues with Chinese characteristics, the mistakes would be probably more serious.