What is the relationship between morality and the law? The answer is that laws and legal decisions make reference to morality. There may be moral clauses in contracts or professional codes of conduct. The morality of a motivation may decide whether an action was or wasn't culpable. Equally, morality takes cognizance of the law and recognizes that it is, generally speaking, immoral to break the law for some selfish purpose. However, the fact that two things refer to each other does not mean that either is inherently connected to the other. We can consider members of different religions living under the rule of a particular Emperor who establishes a law code for his own purposes. Each religion has a different morality yet, in their interactions, they may be obedient to the law. It would be strange to say that the morality of the Christian was inherently connected to the laws established by Caesar or, at a later date, once the Emperor had converted to Christianity, that Roman Law was inherently an expression of Christian morality.
If a legal code has an expression as a deontic logic, might it not be the case that the law has an inherent morality? Lon Fuller argued that it did. However, his argument suffered from the ' no true Scotsman' fallacy. In other words, it is a subjective belief which a person is welcome to have because he thinks well of Scottish people and considers bad behaviour as un-Scottish. Fuller thought that for a legal system to be truly legitimate, it must adhere to certain principles of procedural morality, such as clarity, publicity, and non-retroactivity. These procedural principles, according to Fuller, are essential for ensuring that laws are just and worthy of obedience. The problem here is that you may have a Government in exile whose laws and just and worthy of obedience but which has no de facto power. Is it legitimate? The answer seems to be that it is only legitimate to the extent that some foreign power deems it to be so. But that is a political question and has nothing to do with 'inherent morality'.
H.L.A Hart debated the matter with Fuller. Hart's view was in the tradition of positive law or law as command. Hart was willing to consider retroactive legislation to punish actions which were legal but abhorrent- e.g. punishing Nazis who 'just followed orders'- though he understood the dangers of this approach. One particular case mentioned during the debate concerned a German woman who denounced her husband, a soldier, as a critic of Hitler. A Court Martial sentenced him to death but he was sent to the Front and survived. After the war, he initiated proceedings against his wife for unjust deprivation of liberty and she was sent to jail. Since wives are under no obligation to pass information to the authorities and since she had a bad motive for her action, her punishment was considered salutary. Now, we might say it was abhorrent for the Judge to pass a sentence of death and that he too ought to be punished. The problem here is that under exigent circumstances, very harsh measures may have to be resorted to even in the most liberal societies. Moreover what is or isn't abhorrent is 'epistemic'- i.e. depends on our knowledge base. We are outraged when we read about homosexuals being sent to jail or having to suffer chemical castration not so very long ago in our own country. Yet, at that time, highly erroneous views on homosexuality were held even by some Doctors.
Hart's 'rule of recognition'- by which 'what counts as law' is recognised- is not itself positive. It is epistemic. Moreover, there may be a strategic element to it. It sometimes pays not to recognize a guy to whom you money to. Does this make legal systems subject to indeterminacy? It would be easier to say that such systems have the right to be wrong or that legal systems are underdetermined- i.e. have more unknowns than 'equations'. If the rule of recognition is not itself positive and if morality too is epistemic, how do we demarcate a 'reprehensible' situation where judges have relied on morality rather than the law? We may agree that the wife who denounced her husband acted immorally. She was sent to jail for violating morality, not the law as it stood. Was that reprehensible? The short answer is no. She owed a legal duty to her husband which she violated. She was not legally obligated to report him to the authorities though she was permitted to do so. A legal duty may be of a moral nature just as it may be of an economic or punitive nature.
The Hart-Fuller debate was based on informal and intensional fallacies. Hart was assuming that intensions of an epistemic kind can have well-defined 'extensions' (though there might be a 'penumbra' where some extra interpretation was required). But such is not the case. Equally, Fuller was assuming that 'impredicativity'- e.g. the overlap between morality and the law such that when one changes the other may also change- arose by reason of inherent similarity. Morality is inherently law-like. The Law is 'internally' moral. The problem here is that if both can have a representation as deontic logics then we would be entitled to say both are inherently mathematical because maths can have such a representation! But so can everything in Physics! We have abolished the distinction between Phusis and Nomos!
This brings us to a separate question- viz. verification or 'witnesses'. We know that our morality changes when new facts become available and old assumptions are shown to be false. Legal decisions too may be overturned in this manner. A judge may rule a conviction 'unsafe' in the light of new evidence.
Returning to the story of the soldier's wife who got him sentenced to death at a Court Martial, a German Court of Appeal convicted her for 'indirect perpetration' under a law from 1871. Moreover, for the husband to have been found guilty, he would have had to had a mens rea which could not possibly arise in the context of the intimate relationship between man and wife. Was the Court Martial decision illegal? I suppose so but the dude wasn't killed. He was shipped off to the front which is what would have happened anyway. Indeed, that death sentence might have helped him if he fell into the hands of the Allies. It was a badge of honour.
More generally, the German courts did preserve something of the legal order and there were some occasions where it shielded people from the Nazis. After the war, its higher courts found ways of punishing 'grudge informants' under pre-existing laws. The plain fact is, what is or isn't 'command' is an epistemic question. This means the intensional fallacy arises if you assume it must work in a particular way because your logic demands it. Sadly, where intensions don't have stable extensions, logic has no purchase.
One final point. Judges can do stupid shit. This can cause the law to be disintermediated. This may be a superior outcome to trusting to the law rather than seeking other ways to protect yourself or to resolve conflicts. Hart & Fuller came from countries with good legal systems. They attracted skilled immigrants who wanted to live in well ordered societies. Stupid judges in shithole countries may have been doing their people a favour by increasing the incentive to emigrate.
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