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

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.

Untitled

“…495-502; Wagner, 1971, p. 45-etc). The material consulted here also included occasional commentaries on separate privacy cases from France and Belgium, though I have devoted a paper on the development of German right to privacy in the sphere of personality rights, professional secrecy, and breach of good morals in Prussian and German case law of the 19th and 20th centuries, which included the analysis of unique cases collected from historical jurisdictions, like the Kingdom of Bavaria and the Free City of Lübeck(Lytvynenko, 2021c).12 For instance, here are a few outstanding cases from France and Belgium: Judgment Dumas c. Liebert 1867, pp. 41-42; Judgment Société Liébig's extract of Meat Company et héritiersLiebig c. Houlekiet et Ànderson, 1884; Judgment Peltzer c. Castan, 1888, pp.…”

“…At this point, no discussion of similar German precedents of the given time era will be made. See the recent paper(Lytvynenko, 2021c) about the Hart-Fuller Debate and the origination of German right to privacy in this model is dedicated.…”