THE NEXUS BETWEEN LAW AND MORALITY

Abstract

Laws are not all created equal. Some laws emerge from just regimes while others arise under unjust ones. In the Grudge Informer case, a woman was prosecuted for an act that was legal  under an unjust regime. Following this decision, numerous debates have arisen regarding the 

nexus between law and morality. Drawing conclusions from the Hart v Fuller and Hart v  Devlin debates from the 1950s and 60s, this paper seeks to obtain a deeper understanding of  the different schools of thought.

By revisiting the Grudge Informer case, this paper analyses whether law can or should be  divorced from morality. It examines the relationship between law and morality to better  understand legal frameworks and systems, including the moral and ethical considerations that  inform them. The discussion also reflects on contemporary parallels, such as evolving  societal standards and judicial decisions that challenge the boundary between legal formalism  and moral reasoning.

Key words: Law, Morality, Legal systems, Jurisprudence, Hart v Fuller, Hart v Devlin

Introduction

According to the Black’s Law Dictionary, law¹refers to a body of rules, standards and  principles that the courts of a particular jurisdiction apply in deciding controversies brought  before them. Morality on the other hand refers to a code of conduct that determines the  distinction between right and wrong, and good and bad behaviour. Morality is subjective,  often shaped by a person’s beliefs whether cultural or religious and experiences. Both law  and morality play an important role in shaping the conduct of individuals in the society.

There are two main schools of thought that aim to provide an understanding of the complex  relationship between law and morality. They are; natural law and legal positivism. For natural  law proponents, law originates from a sovereign and therefore has inherent morality while  legal positivists believe that law originates from an authority and that there should be  separation between law and morality. At the centre of these arguments, two crucial debates  emerge, that is, Hart v Fuller and Hart v Devlin.

This paper explores the complex interplay between law and morality by tracing the  foundations of natural law and legal positivism, analysing the seminal Hart v Fuller and Hart  v Devlin debates, and situating these theories within the contemporary Kenyan legal context.

Nexus

There is a significant link between law and morality. Law is often influenced by moral  principles. This is to ensure that there is social cohesion in society. For example, laws that  accord punishment for murder and theft affirm the collective morality of society.

Additionally, some laws may be considered immoral by certain groups. This is because  morality is subjective. It also acknowledges that morality and ethics are ever-evolving; what  is moral today may be immoral tomorrow. An example is the Prohibition of Alcohol in the  United States in the 1920s². This created a nationwide ban on the sale and import of alcohol.  In 1933, the United States overturned this law by repealing the Eighteenth Amendment and  ratifying the Twenty-First Amendment. This reflects the shifting moral perspectives of  society.

Furthermore, not all immoral acts are illegal. Despite the fact that infidelity is immoral and is  largely considered so by a majority of society, many countries have not recognised it as  illegal. This is because the law cannot regulate every good or bad in society. While the law  plays a crucial role as a social regulator it cannot directly interfere with the affairs of private  persons.

Lastly, the legal systems of countries are shaped by their culture(s), attitudes, morals and  values. Therefore, the interpretation and enforcement of laws across varying jurisdictions  may reflect this. In the United States, the death penalty remains a punishment for serious  crimes such as murder whereas in Kenya, the death penalty, although the death penalty is still  recognised in law, it is considered unconstitutional in practice and has not been implemented  in recent decades³. This serves as a practical example of how different legal systems interpret  and enforce their laws.

Natural Law

Natural law theorists believe that for law to be valid, it has to include moral principles and  originate from a sovereign. It asserts that manmade laws must align with moral principles that  are discoverable through reason. It views law as it “ought to be” as opposed to law as “it is”.

The main criticism of this theory is that it is inconsistent. Hans Kelsen provides that  naturalists justify that positive law is required because of man’s badness. This school of  thought also assumes that man is good due to human nature. There exists a contradiction  between these two views.

Legal Positivism

Legal positivists believe that for law to be valid, it has to originate from an authority. It  asserts that law and morality should be separated. It views law as it “it is” as opposed to law  as “ought to be”.

The main criticism of this theory is that it can lead to unjust outcomes. It focuses on the  divorce of law and morality. Critics argue that it fails to distinguish between law and non-law  and fails to recognise that law is often shaped by the moral principles and values of society.

Hart v Fuller Debate

Drawing from the 1950s and 60s debate between the legal scholars H.L.A. Hart and Lon L.  Fuller, one can understand the theories of natural law and legal positivism. The debates were  based on the nature of law and the inclusion of moral principles in law and sought to answer  the questions on whether law can exist without morality and whether an unjust law was  legitimate.

H.L.A. Hart was a legal positivist while Lon Fuller is a naturalist. For Hart, law and morality  ought to be separate. He argues that the content of law⁴is determined by the rules of  recognition that are created and enforced by authorities such as courts. The rules of  recognition are social rules that determine what norms constitute legal norms. 

Fuller on the hand argued that law and morality cannot be separated. He argues that the  content of the law ought to reflect certain moral principles. For Fuller, law should promote  human dignity and justice. He viewed law based on the legal systems and procedures that  create it.

In the Grudge Informer case⁵, a woman was prosecuted for reporting her husband to Nazi  authorities for criticising Hitler. Under Nazi law, these acts were illegal. Her husband was  sentenced to death but the sentence was commuted and he was sent to the front. After the  war, the woman was prosecuted in the West German Court for “illegally depriving a person  for his freedom”. This was decided despite the fact that her actions (reporting him) were legal  at the time.

Both H.L.A Hart and Fuller agreed with the court’s decision to prosecute the woman but  disagreed with the court’s reasoning. Hart argued that the moral nature of the Nazi law did  not detract from its legitimacy. He stated that the court, displayed an unrealistic optimism in  making its decision. For him, legal cases often posed a moral dilemma between choosing two  evils. He maintained that it was more intuitive to argue that evil laws possess legal authority  but may be too evil to obey rather than arguing that evil laws had zero legal authority.

In contrast, Fuller argued that a genuine legal system has to possess internal morality. Fuller  argued that a genuine legal system must satisfy 8 conditions⁶,

including:

1. Generality: The law should apply to all situations that fit its description.
2. Promulgation: Laws should be available and published publicly.
3. Non-retroactivity: The law should be prospective and not retroactive. This is in line with the principle of legality. A person should not be prosecuted for past acts or omissions that were prohibited by law.
4. Clarity: The law should be easy to understand and extract meaning from.
5. Non-contradiction: The laws should be consistent and not conflict with each other. 6. Possibility of compliance: The laws should be achievable and not require individuals to do the impossible; they should not demand actions beyond an individual’s capacity or  control.

Constancy: Laws should not change abruptly or frequently.

Congruence between declared rule and official action: The actions of the legal enforcers should align with publicly stated laws.

Fuller argued that the Nazi law lacked internal morality since it did not meet the  promulgation, constancy and congruence factors. The Nazi law was illegitimate as a result  of the legal process and procedures that created it. He maintained that although he believes in  the prospectivity of a legal system, it was justifiable to prosecute the woman in a retroactive  manner.

Hart v Devlin Debate

Similar to the Hart v Fuller debate, the Hart v Devlin debate focused on the inclusion of  morality in the creation of laws and in particular, the enforcement of morality through law.  The debate sought to answer the questions on whether the law can regulate the private acts of  an individual and the concept of common morality.

H.L.A. Hart, a legal positivist believed that law and morality were conceptually distinct. Hart  argued that the law should not interfere with individual liberty unless it can be demonstrated  that that act would cause harm to others. He referred to this as the ‘Harm Principle’. He  maintained that the only justification for the interference of the State in the private matters of  an individual would be for the prevention of harm or that it interferes with the basic rights of  individuals. For Hart, not all immoral acts should be criminalised especially when those acts  are done in private and are consensual.

In contrast, Patrick Devlin, a naturalist, argued that society has a right to enforce moral  standards through the law, including private matters of individuals⁷. He believed in a shared  morality which is crucial for social cohesion. According to him, the State has a duty to  promote and enforce shared morality⁸. The “reasonable man” standard could be used to  determine what society finds morally offensive⁹. If certain conduct, such as homosexuality at  the time was deemed intolerable by the majority, the State was justified in prohibiting it to  preserve the moral fabric of society.

The debate was sparked by the publication of the Wolfenden Report (1957)¹⁰. It  recommended the decriminalization of homosexual acts done in private, between consenting  adults. Devlin opposed the Report’s conclusions, warning that legalizing such acts could lead  to moral disintegration. However, Hart, defended the Report’s position, arguing that the law  has no place in punishing immorality that does not cause harm to others. Hart rejected  Devlin’s reliance on popular moral feelings as a basis for legal coercion, warning that this  could lead to oppression of minorities and the abuse of State power. He emphasized the  importance of distinguishing between moral disapproval and legal prohibition. Devlin, on the  other hand, feared that separating law from morality would undermine society’s stability. He maintained that the law must uphold moral norms or risk societal collapse.

In The Queen v Dudley and Stephens (1884)¹¹, Four men, Dudley, Stephens, Brooks and  Parker, were stranded on a lifeboat for several days without food or water. The group had  been without food and water for seven and five days respectively. Dudley and Stephens  spoke to Brooks about sacrificing Parker to save the rest. Brooks dissented while Parker was  not consulted. Dudley declared that if no vessel was in sight the next morning, they would  kill Parker. No vessel appeared the next day, so Dudley with the assent of Stephens, killed  Parker. The three remaining castaways fed upon the Parker for four days at which time, a  passing vessel rescued them. The Defendants raised the defence of necessity. The court  rejected it and convicted them of murder.

Both the Hart v Fuller and Hart v Devlin debates reflect the main discussions on the nexus  between law and morality. They both seek to understand the role and purpose of moral  principles and values in law.

The Kenyan Perspective

Legal systems in various jurisdictions world-over reflect a blend of natural law and legal  positivism. Kenya, being one of them, recognises both the natural law school of thought in its  laws and the legal positivist school of thought in its interpretation and enforcement of law.  The Constitution of Kenya, 2010, the supreme law of the land, recognises the supremacy of a  sovereign under the Preamble¹² and the courts, in interpreting the law, focus on the formal  validity of the law reflecting the legal positivist school of law. In 2017, the Presidential  elections¹³ were contested. The petitioners moved to court on the basis that there were  various irregularities in the electronic results transmission. The Supreme Court held that the  election results did not reflect the will of the people and therefore nullified the results. In  doing so, it mirrored the legal positivist school of thought. Consequently, Sections 158, 159  and 160 of the Penal Code (Cap 63) prohibit abortion¹⁴. It does not recognise any  circumstances in which it may be permitted. Although Article 26¹⁵ of the Constitution of Section 158, ‘Any person who, with intent to procure miscarriage of a woman, whether she is or is not with  child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of  any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen  years.’

Section 159, ‘Any woman who, being with child, with intent to procure her own miscarriage, unlawfully  administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means  whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable  to imprisonment for seven years.’

Section 160, ‘Any person who unlawfully supplies to or procures for any person any thing whatever, knowing  that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with  child, is guilty of a felony and is liable to imprisonment for three years.’

Kenya, 2010 recognises that abortion can be permitted in certain circumstances, the act is  still prohibited therefore reflecting the natural law school of thought.

Conclusion

Law and morality, though distinct in definition, are inextricably linked in practice. Natural  law argues that legal validity is derived from underlying moral principles and values while  legal positivism maintains that legal validity originates from socially recognised sources  which is independent of moral content. The Hart v Fuller exchange illuminated the  importance of procedural integrity and the internal morality of law, while the Hart v Devlin  debate highlighted the limits of State coercion in enforcing private morality versus the need  to preserve societal cohesion. Lastly, the Kenyan experience demonstrates how a hybrid  approach, anchored in the 2010 Constitution’s moral vision yet administered through formal  legal procedures can accommodate both moral imperatives and positive law certainty. In an  ever‐evolving society, acknowledging the mutual influence of morality and positive rules  helps to ensure that legal systems remain just and adaptable with the values they are meant to  serve.

References

Black’s Law Dictionary (10th edn, Thomson Reuters 2019).

‘Prohibition’ (History.com, 29 October 2009) https://www.history.com/topics/roaring twenties/prohibition last accessed 11^th July 2025.

Francis Karioko Muruatetu & another v Republic [2017] eKLR, Petition No 15 of 2015  (Supreme Court of Kenya).

The Grudge Informer Case (also known as the Nazi Informer Case), discussed in Lon L  Fuller, The Morality of Law (revised edn, Yale University Press 1969) 250–254.

Wolfenden Committee Report, Report of the Departmental Committee on Homosexual  Offences and Prostitution (Cmnd 247, 1957).

The Queen v Dudley and Stephens (1884) 14 QBD 273 (DC).

Raila Odinga & others v Independent Electoral and Boundaries Commission & others [2017]  eKLR, Presidential Petition No 1 of 2017 (Supreme Court of Kenya), paras 246–287. Penal Code (Cap 63, Laws of Kenya), ss 158, 159, 160.

Constitution of Kenya 2010, art 26 and the Preamble.

Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (6th edn,  Oxford University Press 2021) chs 2 and 4.

HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) chs 1, 5, and 9.

LL Fuller, The Morality of Law (revised edn, Yale University Press 1969) 33–94 — especially the eight desiderata at 39.

Patrick Devlin, The Enforcement of Morals (Oxford University Press 1959) chs 1 and 4.

About the author

Michelle Otieno is a law student from Mount Kenya University, Parklands Law Campus in  Nairobi, Kenya. She has a passion for intellectual property law with a Distinction in a  General Introduction to Intellectual Property Law from the World Intellectual Property  Organisation (WIPO). Outside of academics, Michelle enjoys playing golf, reading and  pottery.

¹ Black’s Law Dictionary (10th edn, Thomson Reuters 2019).

²‘Prohibition’ (History.com, 29 October 2009) https://www.history.com/topics/roaring-twenties/prohibition,  last accessed 11^th July 2025.

³ Francis Karioko Muruatetu & another v Republic [2017] eKLR, Petition No 15 of 2015 (Supreme Court of  Kenya).

⁴ HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) chs 1, 5, and 9.

⁵ The Grudge Informer Case (also known as the Nazi Informer Case), discussed in Lon L Fuller, The Morality of  Law (revised edn, Yale University Press 1969) 250–254.

⁶ LL Fuller, The Morality of Law (revised edn, Yale University Press 1969) 33–94 — especially the eight  desiderata at 39.

⁷ Patrick Devlin, The Enforcement of Morals (Oxford University Press 1959) chs 1 and 4.

⁸Ibid

⁹Ibid

¹⁰ Wolfenden Committee Report, Report of the Departmental Committee on Homosexual Offences and  Prostitution (Cmnd 247, 1957).

¹¹ The Queen v Dudley and Stephens (1884) 14 QBD 273 (DC).

¹² Constitution of Kenya 2010, Preamble.

¹³ Raila Odinga & others v Independent Electoral and Boundaries Commission & others [2017] eKLR,  Presidential Petition No 1 of 2017 (Supreme Court of Kenya), paras 246–287.

¹⁴ Penal Code (Cap 63, Laws of Kenya), ss 158, 159, 160.

¹⁵ Constitution of Kenya 2010, art 26