UNIVERSITY OF ECONOMICS HO CHI MINH CITY

COLLEGE OF ECONOMICS, LAW AND GOVERNMENT - SCHOOL OF LAW

FINAL EXAMINATION
JURISPRUDENCE
THE RELATIONSHIP BETWEEN LAW AND MORALITY
Lecture code: LAW511004
Lecturer: Võ Phước Long
Student: Huỳnh Tiểu Phụng
Student ID: 31231021634
Class: LQP001
Email: [email protected]

Tuesday, on 10th December 2024

Index

I. Introduction........................................................................................................... 3
II. The Relationship Between Law and Morality: Perspectives of
Jurisprudence Theorists........................................................................................... 4
III. Can laws exist independently of moral considerations?................................. 6
Nasty Law..............................................................................................................6
Gustav Radbruch................................................................................................... 7
Hans Kelsen...........................................................................................................8
HLA Hart...............................................................................................................8
Lon. L Fuller..........................................................................................................9
IV. Cyberbully in Vietnam under perspective of Peter Cane about the
relationship between laws and morality................................................................ 11
V. Conclusion........................................................................................................... 13
BIBLIOGRAPHY................................................................................................... 13
DECLARATION OF USING AI
Using AI: Chat GPT 4.0, Quillbot,
● Utilizing ChatGPT 4.0 for evaluating ideas, analyzing complex legal terms,
and simplifying legal theories to generate insightful ideas for my essay.
(Especially used to build up ideas for “Cyberbully in perspective of Peter
Cane about the relationship between laws and morality” and “Can laws exist
independently of moral considerations?”)
● Quillbot to paraphrase specific vocabulary, ensuring the language remained
varied and precise while checking for grammar and spelling errors to
improve the overall clarity of the writing.
Citation:
● Using Zotero software
● Citation style used in the essay: Australia Guide to Legal Citation 4th edition
● Bibliography style used in the essay: APA 7th edition

Methodology
The essay uses Qualitative Research Methodology to study the relationship between
law and morality, specifically investigating the possibility of laws existing
independently of moral concerns. The study mainly seeks to comprehend and
analyze current legal concerns, moral principles, and theoretical frameworks within
the field of law.
1. Theoretical Analysis: The first method is a qualitative examination of
prominent legal theorists, like Hans Kelsen and H.L.A. Hart, to investigate
their viewpoints on the interplay between law and morality. This phase does
not depend on quantitative data; rather, it entails a critical analysis and
juxtaposition of philosophical and legal writings. This study seeks to
evaluate the separation of law from moral issues via the interpretation of
theoretical perspectives, offering a conceptual grasp of the matter.
2. Critical Analysis: In response to the central research question, the essay
introduces the concept of "nasty law"—laws that, while legally valid, may
contradict widely accepted moral norms. This qualitative method involves
critically examining legal principles and their practical implications, without
relying on empirical data, to understand the extent to which legal systems are
morally embedded. The analysis of "nasty law" allows for a deeper
exploration of whether laws can function effectively and justly in the absence
of moral considerations.
3. Case Study: The final part of the essay uses a case study to apply the
theoretical frameworks developed earlier. The examination of Vietnam's
legal response to cyberbullying is conducted under the framework of Peter
Cane's moral and legal accountability. A qualitative analysis of Vietnamese
law against cyberbullying emphasizes moral and legal obligations in this
case study. Using a real-world case study, theoretical concepts are applied to
contemporary legal concerns to show how morality and law are linked.
The research approach used in the study is qualitative, focusing on critical thinking,
interpretative analysis, and the application of legal theory to practical concerns.
Theoretical research, critical analysis, and case study application are used to explain
the dynamic relationship between law and morality.
I. Introduction
Law and morality are essential safeguards for the orderly and peaceful development
of human civilization. The discourse over their relationship has persisted for
centuries in the annals of legal history. The interplay between law and morality has
always been a contentious issue between the natural law school and the positive law
school. The disagreement between them can be summarized as "whether bad law
is illegal or bad law is also law"1 based on interpreting Nasty law. Thence,
expanding the morality and legal responsibility under Peter Cane’s perspectives to
clarify the solemn issue nowaday is cyberbullying.

II. The Relationship Between Law and Morality: Perspectives of

Jurisprudence Theorists.
The interaction between ethics and legislation is a fundamental subject in legal
philosophy. Numerous theorists provide varying perspectives on the reciprocal
effect and shaping of these two domains.Thomas Aquinas, a significant figure in
natural law theory, contends that the rule of law is essential for fostering societal
benefits. He argues that law should prohibit only the grosser failings that
threaten societal stability and command those virtues that are attainable by
human means2. Aquinas distinguishes between moral duties that come from
positive law and those that are imposed by natural law, underlining that the latter
needs to be in accordance with natural moral law to be recognized as valid. He
writes, “In every law there is a certain relation to the natural law, because human
law is derived from the natural law”3, thus establishing that the authority of law is
ultimately grounded in universal moral principles that are comprehensible to human
reason. Aquinas highlights the gravity of prudence, or practical reason, in relation to
morality and the law. Law is more than just a set of rules; it's a moral effort that
seeks to achieve the common good, based on practical reasoning. In his view,
justice is intrinsically linked to law, since its fundamental objective is to guarantee

1
‘The Concept of Law”, HLA Hart.
2
Saint Thomas Aquinas, ‘Summa Theologica’.
3
Ibid.
that "each one receives his due"4.As a result, all legal systems are driven by the
principle of fairness, which is the moral foundation of law.
However, the relationship between law and morality is not universally agreed upon.
The study of jurisprudence shows different viewpoints on how these two areas
connect with each other. Legal positivists like John Austin argue for a clear
separation between law and morality. According to Austin's theory of legal
command, law is the command of the sovereign, which is the command that
compulsorily binds a person or some people.5 Even though moral norms lack the
coercive power of legal norms, morality can't be turned into an order, which means
that morality and law are unrelated. He suggested that "bad laws are still laws."
“Even if the law violates morality, it does not affect its existence”6
On the opposite, H.L.A. Hart, although he sees a distinction between law and
morality, understands that morality plays an important role in interpreting legal
norms. He goes after that “morality must be a condition of drinking from the law” 7
which means that the law can't work well without a moral framework to guide how
it is used.
This link also raises practical concerns about legal responsibility. Peter Cane, for
instance, illustrates how legal systems may acknowledge forms of responsibility
that conflict with conventional moral expectations, highlighting the complicated
role of law in balancing social order with individual moral judgments8.
As Frédéric Bastiat warns, when law and morality conflict, citizens face a moral
dilemma—either losing their moral sense or their respect for the law9. This tension
focuses on the value it is to make sure that laws are not just legally sound but also
morally right, which helps maintain the credibility of the legal system.

4
Ibid.
5
‘Austin: The Province of Jurisprudence Determined’
<https://www.cambridge.org/core/books/austin-the-province-of-jurisprudence-determined/930093B7F0872F
4CE799C6A5326DE724>.
6
Xuekun Yu, ‘On the Relationship between Law and Morality’.
7
‘The Concept of Law”, HLA Hart (n 1).
8
Peter Cane, Responsibility in Law and Morality (Hart Publishing, 2002).
9
‘The Law, by Frédéric Bastiat’ <https://www.gutenberg.org/files/44800/44800-h/44800-h.htm>.
III. Can laws exist independently of moral considerations?
Nasty law
To explore whether laws can stand on their own without moral considerations, we
can look at the theory of "Nasty Law" (or "legal positivism" in a more strict sense),
which suggests that the existence and validity of law are distinct from moral
judgments.The philosophical discussion around this topic has been going on for
centuries to revolve around a specific case: the Grudge Informer case. During the
Nasty regime, a German woman was having an affair and wanted to get rid of her
husband. Knowing that it was illegal to criticize the Nasty government, the woman
reported her husband to the authorities for insulting Hitler, causing him to be
arrested and sentenced to death. After the regime fell, the West German court
accused the woman of illegally depriving a person of his freedom. In her defense,
she argued that her actions were in line with Nasty law at the time and thus, she had
acted within legal grounds. Her husband did insult Hitler and it was punishable by
death back then, so she had done nothing illegal. But the court saw Nasty law as
completely invalid because it was immoral, and so in their eyes, this woman was
defending herself with illegitimate laws. Thus, they deemed her actions to have
been “contrary to the sound conscience and sense of justice of all decent human
beings”10, ultimately finding her guilty.
Gustav Radbruch
The acts of Nazi Germany, according to Radbruch, were a direct outcome of legal
positivism's unbridled authority. Following laws without inquiry might result from
legal positivism, which holds that laws exist independently of moral concerns.
According to Radbruch, this concept allowed evil acts to be concealed under a
"cloak of legality," where laws could be followed regardless of their inherent
injustice11. To counter this, Radbruch developed the Radbruch Formula to assess the
legality of laws using two main criteria. The first, the intolerability formula
“Positive law ceases to be valid if its departure from justice reaches an “intolerable

10
‘The_Grudge_Informer_Case_Revisited’.
11
Marijan Pavčnik, ‘Radbruch, Gustav: His Formula and Concept of Law’ in Mortimer Sellers and Stephan
Kirste (eds), Encyclopedia of the Philosophy of Law and Social Philosophy (Springer Netherlands, 2023)
2924 <https://doi.org/10.1007/978-94-007-6519-1_218> (‘Radbruch, Gustav’).
level”12, posits that a law ceases to be valid if its departure from justice reaches an
intolerable level, such as mass genocide. Laws that violate justice to this extent lose
their legal validity13. The second, the disavowal formula, asserts that a law becomes
invalid if there is "not even an attempt to achieve justice." 14 In his view, laws that
intentionally disregard fundamental values like equality are not genuine laws15.
Upon contemplating the historical context of Nazi legislation, I contest Radbruch's
assertion that legal positivism was the primary cause for Nasty crimes. Nasty law
seemed to be more shaped by a perverted interpretation of natural law. The Nasty
rationalized their legislation as fulfilling a moral objective, which they said was to
save the Aryan race. This "Nasty morality" was founded on a racially restrictive
conception of justice, with laws deemed legitimate provided they advanced the
interests of the so-called "racially pure" group.
Hans Kelsen.
In response to the issue of Nazi laws and their validity, Hans Kelsen, a staunch legal
positivist, maintained that the legal system under Hitler was valid because it was
grounded in the basic norm of the regime, which he argued was the ultimate source
of legal authority. Kelsen's "Pure Theory of Law" treats law as an objective science
that is entirely separate from moral considerations, viewing morality as relative and
external to the law. According to Kelsen, the legitimacy of a law is determined
entirely by the basic norm that forms the foundation of the legal system16. In the
case of Nazi Germany, this basic norm was the principle of absolute leadership
under Hitler, meaning that any law enacted by Hitler was considered legally valid
within that system, regardless of its moral content. If your basic norm is cause as
much pain as possible then only painful laws would be legally valid and in the case
of Nasty law, their basic norm was the principle of absolute leadership under Hitler,
thus making everything Hitler enacted legally valid in Kelsen's opinion. Funny
enough though, in the Nuremberg Trials where Nastys were being tried, Kelsen

12
Ibid.
13
‘Gustav Radbruch’s Concept of Law | Law’s Ideal Dimension | Oxford Academic’ 69
<https://academic.oup.com/book/41215/chapter-abstract/350682967?redirectedFrom=fulltext&login=false>.
14
‘Gustav Radbruch’s Concept of Law | Law’s Ideal Dimension | Oxford Academic’ (n 14).
15
Pavčnik (n 12).
16
‘Pure Theory of Law. (Hans Kelsen) (Z-Library)’ 136.
ended up making strong moral arguments for why the Nastys should be convicted
even though they were acting legally under the Nasty regime. Seems like when push
comes to shove, even committed positivists want evil but legal acts to be punished.
But punishing people retroactively is a tricky choice. How are we to justify
punishing them, when they were following the law at the time?
Alternatively, in the Grudge Informer case, HLA Hart and Fuller agree that
punishing the Nasty lady was the correct choice. They can't agree on anything; first,
they reject the court's logic; second, they dispute between themselves about that.
HLA Hart
Hart contends that complicated legal cases are rarely straightforward. Often, what
we're faced with is a moral dilemma, a "choice between two evils"—where no
choice is morally good17. In the case of the Grudge Informer, the dilemma was
whether to allow the immoral actions of the informant to go unpunished because her
actions were legal when performed, or whether the court should overturn legitimate
law by introducing a retroactive statute, potentially setting a bad precedent.
According to Hart, legal positivism is the only theory that does not ignore this moral
dilemma. It acknowledges the unfortunate situation by stating, "The law is still a
valid law, but it's too evil to be obeyed"18. He argues that this position is more
intuitive than claiming that evil laws have no legal authority at all.
However, is it still reasonable when the people have to comply with the law which
is greatly too “evil” - what law is not applicable, illegitimate in the people’s mind?.
In my opinion, Hart’s statement will make readers feel confused as well as
contradicted.
Lon. L Fuller
With the previous question I posed, Fuller answered it through his critique of legal
systems. As a proponent of natural law, Fuller raises a significant question: why
concentrate only on specific laws while neglecting the overarching legal process?
He argues that a legitimate legal system requires what he calls "internal morality,"
which refers to the procedural morality inherent in how laws are created,
17
‘The Concept of Law”, HLA Hart. (n 1).
18
‘The Concept of Law”, HLA Hart. (n 1).
interpreted, and enforced19. Fuller asserts that internal morality is vital for a law to
be deemed legitimate and successful, including eight fundamental principles:
1. Generality: Laws should be universally applicable to all relevant
circumstances. For instance, if a statute stipulates that "whenever you go out,
you must pay a fee," then each instance of going out should invoke the same
requirement.
2. Publicity: Laws should be readily available and explicitly conveyed so that
individuals comprehend their responsibilities and may critically evaluate the
law.
3. Non-retroactivity: Laws should often govern future behavior rather than
past acts, unless in extraordinary circumstances when retroactivelaw may be
warranted.
4. Clarity: Laws must be clear and understandable. The use of illogical
symbols would compromise the public's capacity to adhere to and evaluate
legislation.
5. Non-contradiction: Laws should not conflict with one another.
Inconsistencies within the legal framework would undermine the law's
authority and fairness.
6. Possibility of compliance: Laws should only impose requirements that are
feasible for individuals to follow.
7. Constancy through time: Laws should be stable and predictable over time,
not subject to abrupt or arbitrary changes.
8. Congruence: There must be alignment between the law as written and the
actions of legal officials. The behavior of those who enforce the law should
be consistent with its written provisions.
This internal morality is absent from the Nazi legal system, as Fuller's assessment of
it demonstrates. During the Nazi dictatorship, legislation was not transparent nor
coherent, often including contradictions. Hitler's verbal directives might supersede
formal legal documents, rendering the legislation effectively "secret." This

19
‘The_Morality_of_Law_by_Lon_L_Fuller’.
inconsistency and lack of visibility exemplify Fuller's argument. Moreover, the
Nazis' reliance on the "sound perception of the people" further eroded the rule of
law. his clause enabled people, especially those classified as "pureblood" Germans,
to operate as if they were above the law, condemning others to death or jail based on
subjective conceptions of justice, irrespective of the established legal framework. In
Fuller's view, this absence of procedural morality in the Nazi legal system rendered
it fundamentally illegitimate. As Fuller notes in The Morality of Law (1964), a legal
system that disregards these principles lacks the internal coherence necessary to
guide and constrain legal actors, leading to injustice and arbitrary rule20. In Fuller's
focus on internal morality, rules are not enough; a system must be fair and
consistent.
IV. Cyberbully in Vietnam under perspective of Peter Cane about the
relationship between laws and morality
Cyberbullying has emerged as a widespread concern in the digital era, when people,
particularly teenagers, endure emotional, psychological, and even physical damage
via online platforms. It is becoming more difficult for legal systems all over the
globe to keep up with the fast rate of technological advancement and the attendant
threats to individuals' health and safety. Explicitly, in Vietnam, this issue is also a
big problem, struggling not only the state but also the people who day-by-day are in
the “potential” condition to be “prey” on social platforms.

Image: Screenshot of VOV2 posting on 20 July 2023 (captured on 12 May 2024)

In Vietnam, the governance of cyberbullying signifies an increasing recognition of
moral and legal obligations. The Vietnamese legal framework emphasizes the moral
duty of persons to behave respectfully and honestly in social platforms. In addition,
the Penal Code outlines the legal consequences of cyberbullying, which include

20
Ibid.
criminal penalties for individuals involved in detrimental online behavior, such as
harassment or defamation. Especially, in the context that these days, cyberbullying
can appear as anonymous, in the positive view this is a good chance to voice their
concern, express their opinions. But in the counter way, anonymity leads to the
aggressive tendency. This matter results in the hard question: Is it easy enough to
convict a crime and bring the perpetrator to trial or force them to hold the
wrongdoer accountable?
A good way to look at how law works against cyberbullying is to explore Peter
Cane's concepts of responsibility, as presented in his work Responsibility in Law
and Morality.
Peter Cane's theory of responsibility looks at how law and moral obligation connect,
offering a detailed view of both ideas. As Cane argues, "Responsibility involves
more than merely identifying blame; it requires a comprehensive understanding of
the agent's actions, intentions, and the consequences of those actions"21. He
highlights the concept of accountability, which, for Cane, is not limited to
punishment but extends to fostering self-reflection and a sense of duty among
individuals 22.This approach is really crucial in addressing complicated issues like
cyberbullying, which involves both individual and organizational responsibility.
In the case of cyberbullying, the perpetrators often engage with the purpose of
inflicting damage on others via digital media. Cane asserts that these persons have
moral accountability for their conduct, having deliberately chosen to do damage,
regardless of their inability to anticipate the whole ramifications. He notes that "the
moral responsibility of an agent must account for their intentions, awareness of
potential harm, and the circumstances in which the actions were taken"23. However,
Cane also acknowledges that factors like age, mental state, and the perpetrator’s
understanding of the harm they cause can influence the degree of responsibility
attributed to them24.Consequently, the moral accountability of a cyberbully must be
evaluated considering their individual circumstances. Cane emphasizes the essential

21
Cane (n 9) 35.
22
Cane (n 9).
23
Ibid 72.
24
Ibid 75.
function of institutions in fostering accountability, in addition to individual
responsibility. He argues that "Institutions that facilitate harmful behaviors must
bear some degree of responsibility for preventing or mitigating those harms" 25. This
includes internet platforms and service providers in the realm of cyberbullying.
Platforms such as Facebook, Instagram, and Twitter possess considerable authority
to govern material, oversee conduct, and enforce regulations designed to safeguard
users from harm. Cane would assert that these platforms have a moral responsibility
to take proactive measures to prevent cyberbullying, such as implementing content
moderation systems, penalizing repeat offenders, and developing educational
programs about online harassment26.
Cane's paradigm provides a method to address the intricacies of legal accountability
in cyberbullying incidents. Legal remedies may vary, including civil lawsuits for
defamation or emotional distress and criminal sanctions for harassment or stalking.
Cane helps clarify the scope of legal responsibility by distinguishing between cases
where criminal penalties may be appropriate (e.g., extreme harassment) and cases
better suited for civil remedies (e.g., reputational harm) 27. In doing so, he
emphasizes that legal responsibility should not solely focus on punishment but
should also promote rehabilitation and deterrence, particularly when addressing
young or first-time offenders28.
V. Conclusion
Law and morality are essential tools for preserving social order, yet different
ideological schools present diverse views on how they relate to each other. The
natural law view connects law and morality, with law enforcing moral values, while
the positivist view sees them as separate.To grasp their relationship, it’s integral to
appreciate the variances between them and the way they have an effect on society
overall. Rather than just calling laws unfair, we should really think comprehensively
about them to maintain order, progress and ensure people's well-being.

25
Ibid 132.
26
Ibid 138.
27
Ibid 155.
28
Ibid 162.
BIBLIOGRAPHY
1. Aquinas, Saint Thomas. (1920). Summa Theologica (Fathers of the English
Dominican Province, Trans.). New Advent. Available at: Christian Classics
Ethereal.
2. Austin, J. (1995). The province of jurisprudence determined. Cambridge University
Press.
https://www.cambridge.org/core/books/austin-the-province-of-jurisprudence-determ
ined/930093B7F0872F4CE799C6A5326DE724
3. Bastiat, F. (1850). The law. Project Gutenberg.
https://www.gutenberg.org/files/44800/44800-h/44800-h.htm
4. Cane, P. (2002). Responsibility in law and morality. Hart Publishing.
5. Dyzenhaus, D. (2008). The grudge informer case revisited.
https://nyulawreview.org/issues/volume-83-number-4/the-grudge-informer-case-revi
sited/
6. Fuller, L. L. (1969). The morality of law. Yale University Press.
7. Gustav Radbruch’s concept of law | Law's ideal dimension. (2021). Oxford
Academic.
https://academic.oup.com/book/41215/chapter-abstract/350682967?redirectedFrom
=fulltext&login=false
8. Hart, H. L. A. (1961). The concept of law.
9. Kelsen, H. (2002). Pure theory of law. Z-Library.
10. Law's empire. (1988). Harvard University Press.
https://www.hup.harvard.edu/books/978067451836
11. Pavčnik, M. (2023). Radbruch, Gustav: His formula and concept of law. In M.
Sellers & S. Kirste (Eds.), Encyclopedia of the philosophy of law and social
philosophy (p. 29,24). Springer Netherlands.
https://doi.org/10.1007/978-94-007-6519-1_218