The Hart-Fuller Debate on Law and Morality Within the Prism of the Legal Foundation of the Right to Privacy in its Earlier Jurisprudential Interpretations in German Case-Law

Anatoliy A Lytvynenko

doi:10.15388/teise.2021.119.10

Abstract

The 1950s debate between the British and American legal philosophers, Lon Fuller and Herbert Hart, has been a clash between the positivist and natural theories of origination of law and jurisprudence, with the former method primarily suggesting that law and morality are not necessarily interconnected, though may coincide in some occurrences, while the latter sticks to development of law that is based upon the mores and values related to human nature, which creates the standards that society should follow in order to function properly. The former approach, as it is argued, is not actually deprived of moral factors. To examine how these debates could work on practice, I decided to choose the early developments of the general right to privacy as an example of “penumbral” rights and to review the positions of various courts within adjudicating cases in respect with the general right to privacy.

Highlights

The Hart-Fuller debateThe foundations of Anglo-American and Continental legal systems are different
The 1950s debate between the British and American legal philosophers, Lon Fuller and Herbert Hart, has been a clash between the positivist and natural theories of origination of law and jurisprudence, with the former method primarily suggesting that law and morality are not necessarily interconnected, though may coincide in some occurrences, while the latter sticks to development of law that is based upon the mores and values related to human nature, which creates the standards that society should follow in order to function properly
The judgemade law is a product of century-aged precedents, absorbing the mores and customs of the those-days society, which are reflected in respective judgments

Summary

Contents lists available at Vilnius University Press

The 1950s debate between the British and American legal philosophers, Lon Fuller and Herbert Hart, has been a clash between the positivist and natural theories of origination of law and jurisprudence, with the former method primarily suggesting that law and morality are not necessarily interconnected, though may coincide in some occurrences, while the latter sticks to development of law that is based upon the mores and values related to human nature, which creates the standards that society should follow in order to function properly The former approach, as it is argued, is not deprived of moral factors. Harto ir Fullerio diskusija dėl teisės ir moralės, nagrinėjant ją per senesnėje Vokietijos teismų praktikoje pagrįstos ir interpretuotos teisės į privatumą prizmę. Pagrindiniai žodžiai: teisė ir moralė, teisė į privatumą, Vokietijos įstatymai, Reichsgericht, medicinos konfidencialumas, teisės istorija, duomenų privatumas

Introduction

Court judgments

Academic literature