Hart v Fuller Debate (part 1)

(To go to the second part, click here.) 

This paper takes a plunge into the classic debate between prominent legal philosophers H.L.A. Hart and Lon L. Fuller, which now marks its 55th year of publication in Harvard Law Review. Published in 1958, Hart’s and Fuller’s lectures in the Review have been stimulating intellectual exchanges between legal positivist and natural law schools.

In the paragraphs that follow, I would like to demonstrate the development of arguments delivered by Hart and Fuller in their respective articles. The topics include the separation of law and morals, the imperative theory of law, legal interpretation, law under the Nazi regime, fidelity to law, etc. All these topics sum up in one question: How should one define the relationship between law and morals? These two schools of law take contrasting positions.

Hart and the Separation of Law and Morals

H.L.A. Hart (1907-1992)

Hart opens the lecture with a statement made by contemporary voices, that there exists a ‘point of intersection between law and morals’; in other words, ‘what is and what ought to be are somehow indissolubly fused or inseparable’. This is the subject of the lecture: to question such statements and demonstrate that they are either right or wrong.

In order to achieve this end, Hart takes the following steps. First, he clarifies the positivist understanding of law and morality as proposed by classic legal positivists. Second, he examines the imperative theory of law and demonstrates its weaknesses. Third, he criticises formalist interpretation of cases vis-à-vis legal realism by introducing the concepts of umbra and penumbra. Fourth, he tackles criticisms against legal positivism in the wake of the collapse of Nazi’s regime. All these steps are taken to show that there is no necessary relationship between law and morality.

Classic Legal Positivism

As a first step, Hart seeks the history of legal understanding. Here he introduces two most prominent philosophers in the English tradition of utilitarianism: Jeremy Bentham (1748–1832) and John Austin (1790–1859). He praised them for having criticised natural-law philosophers due to the latter’s reluctance in distinguishing law as it is from law as it ought to be—a simple but vital move that would simply assure maximum clarity in legal understanding.

However, Hart recognises as well that nowadays such separation has been no longer popular, perceived as ‘superficial and wrong’. It is accused of blinding ‘men to the nature of law and its roots in social life’, of intellectually misleading and practically corrupting. The term ‘Legal Positivism’ has then been understood pejoratively.

Even among these classic legal philosophers, Hart finds some differences. Austin, in spite of supporting the distinction between law as it is and law as it ought to be, still believed in God’s commands, which were thought to be the fundamental principles of morality. On the other hand, Bentham defined morality by making reference only to utilitarian principles.

Differences notwithstanding, they both wanted people to understand the consequences of morally bad laws and the character of a legal order’s authority. Otherwise, as Bentham described, the confusion between law and morals would result in two positions of error:

1. The anarchist, who does not acknowledge the law: ‘This ought not to be the law, therefore it is not and I am free to disregard it.’ This group of people may dissolve law and its authority in their conceptions of what law ought to be.
2. The reactionary, who equates the law with morality: ‘This is the law, therefore it is what it ought to be.’ This group of people may replace morality with the existing law and thus avoid any criticism, since such law is claimed to be in line with morality.

Hart further clarifies the stances taken by Bentham and Austin. Bentham and Austin did not deny the following statements:

1. There exists ‘the intersection of law and morals’. Law and morals have influenced one another over the course of history. Austin even called it ‘frequent coincidence’ of positive law and morality, which, he argued, explained the confusion between what law is and what law ought to be.
2. The legal system may explicitly include moral principles in its provisions and the law may bind courts to take account of what they think just or best prior to making judgement.

Conversely, Bentham and Austin did deny the following syllogisms:

1. If a rule violated morality, then it must not be a rule of law—a position otherwise taken by the anarchist.
2. If a rule was morally desirable, then it must be a rule of law—a position otherwise taken by the reactionary.

Tackling the First Criticism: Imperative Theory of Law

Hart now pays attention to criticisms of the separation of law and morals. He points out three different doctrines of which the utilitarian tradition in jurisprudence consists:

1. The separation of law and morals: there is no necessary relationship between law and morals
2. Analytical study of legal concepts: a study of the meaning of legal vocabulary
3. Imperative theory of law: law is essentially a command

These three doctrines, Hart argues, are distinct and thus cannot invalidate one another. Just because the third doctrine, for instance, is not tenable does not mean the first doctrine must be rejected altogether. Unfortunately, that is the case among many critics of legal positivism. Their indiscriminate use of the label ‘positivism’ has led to unnecessary confusion of understanding of legal positivism.

Hart now zeros in on the third doctrine, which has been frequently criticised. The imperative theory of law as proposed by Austin has three key ideas:

1. Command: ‘an expression by one person of the desire that another person should do or abstain from some action’, accompanied by
2. Sanction: ‘a threat of punishment, which is likely to follow disobedience’, and commanded by
3. Sovereign: ‘a person or a group of persons who are in receipt of habitual obedience from most of the society but pay no such obedience to others’.

In short, law is the command of the uncommanded commanders of society. The analogy of a gunman is frequently used to illustrate the definition; a gunman always forces the victim to surrender to it, saying, ‘Give me your money or your life.’ Given the definition, Hart himself admits that the imperative theory of law is inadequate. It misses some essential characteristics of law.

• Legislature, or even electorate, whose membership changes periodically, can impossibly be considered a group of persons habitually obeyed by society; only a long-lived monarch can receive such obedience.
• Law-making procedures, with which legislators must comply in order to make law, can impossibly be expressed as commands habitually obeyed. These procedures are ‘fundamental accepted rules’ that lie at the root of a legal system, whose social and official acceptance is the ‘key to the science of jurisprudence’.

Therefore, not all rules are commands.

• The criminal law is certainly a command since it requires individuals to do something or to refrain from doing something regardless of their will. This law says, ‘Do this whether you wish it or not.’
• But contracts, wills, trusts, and similar rules are not a command since they are more of enabling individuals to create structures of rights and duties within a certain legal framework. This type of law says, ‘If you wish to do this, here is the way to do it.’

A further weakness of the imperative theory of law is shown by Hart: It does not confer rights stipulated in the second type of law (contracts, wills, trusts, etc.), thereby not providing sufficient explanations for them. But Hart rejects suggestions proposed by English-born jurist Sir John William Salmond and Swedish jurist Axel Hägerström, that law must incorporate notions of morals or justice in order for it to confer rights. Hart argues that rules conferring rights need not be moral or just, because rights can be found in rules regulating human activities which are not pertinent to the idea of justice and morality, e.g. ceremonies and games. And, again, this argument does not demonstrate that the doctrine of the separation of law and morals is wrong.

Tackling the Second Criticism

Legal interpretation in the judicial process is now the subject of attention. Hart calls it the problems of the penumbra, which take place in debatable cases, in contrast to settled meaning. An example is given as follows: No vehicles may enter public parks. While an automobile is what the term ‘vehicle’ refers to, a wide range of other objects may cause doubts; does the rule apply to bicycles, roller skates, toy automobiles, or even aeroplanes? Here the standard instance (e.g. automobile) causing no doubt is called a core of settled meaning, whereas those which cannot be taken in certainty are called ‘penumbra’.

If the penumbra of uncertainty must include all rules of law, then mere logical deduction can impossibly apply to specific cases in the penumbral area. This is then a point of, as some people claim, ‘intersection between law and morals’; moral judgement is thought to be the factor enabling an individual to make sound judgement in a specific case, a domain in which deductive reasoning alone is not enough. However, Hart denies such an easy resort.

Hart admits that formalism is often accused of ignoring the problems of penumbra. At the level of legal theorist, critics argue that s/he has mistakenly seen legal decision as an act relying solely on deduction from premises, thereby not involving the judges’ practical choices at all. Judges are then merely robots who ‘find’, never ‘make’, law.

However, Hart argues that a judge does have to apply a rule to a concrete case—a position in line with realism. Why? Because logic can only give a hypothetical conclusion from a certain interpretation of a certain term; it does not prescribe the interpretation. It says nothing about how to classify particular things, which is precisely the very core of a judicial decision. And such decision in the penumbral area, Hart says further, should take account of social values and consequences arising therefrom.

Therefore, can one draw a conclusion that the utilitarian insistence on the separation between law and morals is wrong, because deciding cases in an automatic way is wrong whereas deciding cases by reference to social purposes is right? No, says Hart. He argues that a drastic restatement must be made: The aims, the social policies, and purposes, of which the judges should take account in order for their decisions to be rational, are themselves part of the law. This way, a legal decision in the penumbral area, albeit unnecessarily guided by moral considerations, is always made in the light of social aims. Therefore, the error of formalism does not automatically falsify the utilitarian insistence on the separation between law and morals.

Furthermore, Hart believes that such separation should not be dropped because of two reasons.

1. Laws are always incomplete. General proposition can never decide concrete cases. That is why penumbral cases must be decided rationally by reference to social aims—or, in a word, discretion.
2. The hard core of settled meaning is always important, however fine its borderline is with penumbral cases. If one softens the distinction between law and morals, then, they are suggesting that all legal questions are simply in the penumbral area, with no central element of law—a condition that is obviously not true.

Tackling the Third Criticism: Legal Positivism and Tyranny

Hart tells a story of Gustav Radbruch, a German thinker who previously supported the positivist doctrine until the advent of Nazi regime, after which he renounced the doctrine of the separation of law and morals and insisted on joining these two aspects.

In the wake of the war, Geman courts changed drastically, applying Radbruch’s conception of law as containing in itself moral principles. As a result, numerous people were charged of committing crimes previously not illegal under the Nazi law. The latter was also declared invalid in the name of the principle of morality. He also recounts a case in 1949, in which a wife was prosecuted for an offence of depriving his husband of his freedom. The wife made use of the Nazi regime to bring her husband, who had made insulting remarks about Hitler, to the Nazi court. After the war, the wife was brought to trial under the new Criminal Code enacted in 1871. The court declared that the wife was guilty and the Nazi statute that she had used to defend herself was annulled because it was considered against the sense of justice of all human beings.

Responding to the aforementioned cases, Hart argues that the Utilitarians would say that ‘the Nazi law may be law but too evil to be obeyed’.