Nature Of Law Debate Between Hart And Fuller Law Essay

Is there a genuine disagreement between Hart and Fuller? If so, what exactly, is it about and how might it be resolved? For centuries, legal philosophers have sought to obtain a deeper understanding of the nature of law and in pursuit of this have led to many debates. The most famous of them was the debate between Professor H.L.A Hart and Professor Lon Fuller. The debate was sparked by an article in the Harvard Law Review by Hart in 1958 [1] and Fuller responded in an article in the same journal [2] ; which led to Hart writing “The Concept of Law [3] ” in 1961 and fuller in response writing the “The Morality of Law” [4] in 1963.

Both Hart and Fuller’s starting points and interest in jurisprudence were very different. Hart spent much of his time evaluating and understanding the concept of law, while Fuller on the other hand was concerned with the rule of law. However, despite their interest in Jurisprudence being very different, Hart and Fuller were engaged in heated discussions amongst each other for years. Part of this as Professor William Lucy [5] stated was Fuller’s apparent denial of the ‘separation thesis.’ This idea, the separation thesis, stimulates from the positivist [6] school of thought in which Hart associated himself with. The theory entails that while decisions of law and morality do occasionally overlap, a moral component is not necessary for determining whether something is law. However, Fuller a natural law theorist [7] stated that there is an essential and innate overlap between law and morality and without a unified morality that underlies most of the laws there is no coherence within a legal system.

Within this essay, I will discuss what seemed to be the specific points of differences between Hart and Fuller; that being the Foundation of a legal order, the Inner Morality of Law, the Nazi Law and the Interpretation of law. In discussing these differences, I will assess whether these disputes between Hart and Fuller were in fact genuine and if so how it may be resolved.

Foundation of a Legal Order

Hart presented his approach to law as an alternative view to previous attempts by legal positivist at explaining the nature of law; but ultimately he remained committed to constructing a positivist theory that distinguished between law and morality. Prior to Harts account of law, legal positivist treated law as, ‘a body of commands laid down by a supreme legislative body.’ [8] However, Hart claimed that a legal system based on power, coercion and sanctions, painted a misguided picture of the law. As Hart famously put it, ‘law is surely not the gunman situation’ and “legal order is surely not to be identified with compulsion.” [9] Ultimately Hart conceded that law is based on “fundamental accepted rules specifying the essential lawmaking procedures.” [10] Following this further Hart claimed that legal order is the product of a combination of primary rules and secondary rules; primary rules of obligation, imposing duties and secondary rules conferring powers; in particular the rule of recognition, adjudication and change, however the most important of these is the rule of recognition, the rule that determines legal validity. [11]

Harts rejection to the ‘command theory’ and commitment to the notion of ‘accepted rules,’ led Fuller to believe that there was some common ground between Harts account of the foundation of law and his own. From Fullers perspective, he believed that rules that make law possible must have some moral character because they ‘derive their efficacy from general acceptance, which in turn rests ultimately on a perception that they are right and necessary.’ [12] Ultimately Fuller argued that these rules created a challenge to the positivist claim that there is no connection between law and morality at the foundation of a legal order. In light of this, Fuller posed the question to Hart, to explain the nature of these rules that furnish the framework within which the making of law takes place. [13]

In responds to Fuller, Hart stated what appeared to be a compromise between himself and Fuller, when he said there must be some minimum natural content to any legal system. [14] This content according to Hart is necessary to secure the aim of ‘survival in close proximity to our fellows. [15] Following this further, Hart stated that this very thin conception of the minimum moral content of a legal system is the right one because ‘the purposes men have for living in a society are too conflicting.’ [16] However, despite what seemed to be a concession between Hart and Fuller; Hart remained committed to the notion that there is no connection between law and morality in the foundation of a legal system. Furthermore, he supported this by explaining that such a system that consists of general rules, cannot guarantee the ‘substantive moral quality of the ends of the law.’ [17] In addition, Hart stated that such a minimum requirement cannot remove the possibility that the laws in such a system may be used for evil.

The Inner Morality of Law

In the ‘Morality of Law,’ Fuller saw a necessary connection between law and morality through what he regarded as a ‘reason’ in legal ordering. In light of this, Fuller argued that law making is a purposive activity and the basic idea underlying and justifying the creation of a legal system is the ‘purposive enterprise of subjecting human conduct to the governance of rules.’ [18] Law, as Fuller argued, is distinguished from ‘fiat of power or a repetitive pattern discernable in the behavior of state officials,’ [19] because it provides a guide to human conduct. According to Fuller, in order to produce something that can guide human conduct and properly be called law, law makers must adhere to these eight specific principles. [20] These principles he regarded as the ‘inner morality of law.’

To illustrate his point, Fuller told us in the ‘Morality of Law’ [21] a parable about a King by the name of Rex who wanted to make his name as a great law-giver. Unfortunately because he continuously ignored the eight principles of morality he never succeeded in making any law at all. [22] Ultimately Fuller stated that ‘a total failure in any one of these eight directions does not result in a bad system of law; it results in something that is not properly called a legal system at all.’ [23]

Hart, when analyzing Fullers conception of the law, agreed with fuller that the principles are needed in the process of lawmaking, but quickly stated that they were not moral in content and in no sense establish a necessary connection between law and morals. Ultimately, Hart conceded that the principles were merely ‘principles of good craftsmanship’ [24] and stated that calling the principles as moral “created a confusion between two notions that is vital to hold apart; the notion of purposive activity and morality.” [25]

In light of Hart’s response, Fuller stated that this line of argument was ‘bizarre and even perverse, as not to deserve an answer.’ [26] However, Fuller stated that calling the internal morality of law ‘a basic confusion of efficiency and morality’ [27] was obscured. Furthermore, Fuller argued that Hart’s idea of efficiency was misunderstood [28] since the principles, as Hart needed to understand, are not just used for lawmaking, but ultimately for ‘the creation and administration of a thing as complex as a whole legal system.’ [29] Fuller further stated that the reason for Hart’s refusal to regard the principles as moral was his commitment to the notion ‘that the existence or non-existence of law is, from a moral point of view, a matter of indifference.’ [30] In addition Fuller argued that Hart defending a concept of law as managerial control [31] and rejection to idea of reciprocity between the lawmaker and citizens within the society was also a reason for him rejecting the inner morality of law.

Nazi Law

The question of whether flagrantly unjust law deserves recognition as valid law was most famously addressed in the debate between Hart and Fuller that began in the 1958 Harvard Law Review and dealt explicitly with the example of Nazi law. [32]

Hart recounted in his 1958 essay [33] a postwar Germany case concerning a woman who denounced her husband after he had made remarks on the Nazi Regime; as a result of his actions being against Nazi law he was imprisoned. This case led the court to question whether the Nazi law can be deemed valid, however, the courts found that the Nazi law was ‘contrary to the sound conscience and sense of justice of all human beings’ [34] and for this reason Nazi law was not valid and the women was found guilty for her actions. In light of this, Hart argued that the decisions of the courts were wrong as the Nazi Law’s were valid laws since it fulfilled the necessary requirements for the ‘rule of recognition.’ [35] Furthermore Hart believed a more suitable approach would have been to condemn the valid laws as being to evil to be obeyed [36] rather than presenting ‘the moral criticism of institutions as propositions of a disputable philosophy.’ [37]

In response to Harts account of the Nazi Law, Fuller argued that Harts analysis of it disregarded the degree in which the Nazi’s law deviated from the inner morality of law which made it fail to qualify as law. Fuller argued that this neglect was reflected in Harts apparent assumption that “the only difference between Nazi law and, say, English law is that the

Nazis used their laws to achieve ends that are odious to an Englishman” [38] As a result of this, Fuller argued that Hart having overlooked the derogation from the internal morality of law in a society would lead to “the tacit restraints of legal decency” which occurred in light of the Nazi Regime. [39] Upon studying the Grudge informer case further, Fuller was led to conclusion that the relevant statutes and their applications that Hart claimed to be valid law must be questioned. [40] Fuller remained critical of Hart’s position because “surely moral confusion reaches its height when a court refuses to apply something that it admits to be law.” [41]

Interpretation of Law

According to Hart, when judges are interpreting and applying a disputed rule there is a tendency for judges to refer to what law ‘ought to be,’ which therefore collapses the distinction between law and morality. [42] Hart developed that in light of all general rules; there will be a ‘core of certainty’ central to cases where the application is clear and a ‘penumbra of doubt’ where the application is uncertain. [43] He illustrated this by introducing the example of a legal rule which forbid taking a vehicle into a public park. [44] Hart suggested that in most cases such a rule would be interpreted by reference to a core settled meaning as to what constitutes a vehicle; however there will be ‘a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.’ [45] In light of this, Hart stated that judges must sometimes use their discretion and exercise ‘creative choice’ [46] to create new law. However, Hart made it clear that any moral considerations within the exercise of discretion only occur in the penumbra where there is no law; thus not affecting his insistence on the necessary separation of law and morality. Ultimately, Hart conceded that what the law ‘ought’ to be, may arise, but this should not implicate morality in a judgment; [47] as the ‘ought’ may merely suggest a reflection of a standard of criticism that may or may not have any connection to moral standards. [48]

Is there a genuine disagreement?

In light of this discussion between Hart and Fuller it is quite evident that both approached the debate with different motivations. Hart was concern with the immorality that makes law impossible, while Fuller remained focused on the morality that makes law possible. Hart himself observed this and stated that their starting points and interests were so different that they may never understand each other. [55]

In any case it is somewhat undisputable that there is a genuine disagreement between Hart and Fuller, in light of the separation thesis. Hart remains committed to the idea that law and morality are separate. While Fuller on the other hand opposes this and is certain that there is not distinction between law and morality.

Conclusion

In conclusion, the distinction between both Hart and Fuller across these topics as discussed are consistently apparent; neither one is prepared to concede much to the other’s standpoint and remains committed in defending their own positions in the face of constant attacks and accusations from the other. As a result of this, since the arguments of each professor depends ultimately on his definition of law and his view of the meaning of morality in relation to the nature of man and the world in which man lives, their philosophical differences seem irreconcilable. [56]

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