Hart v Fuller Debate (part 2)

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

Lon L. Fuller and Fidelity to Law

Lon L. Fuller (1902-1978)

Perplexed by Hart’s lecture, which Fuller says suffers from ‘a deep inner contradiction’, Fuller gives a response with another lecture entitled ‘Positivism and Fidelity to Law—A Reply to Professor Hart’. The lecture can be divided into the following steps. First, Fuller restates the definitions of law and morality as proposed by legal positivists and delivers his general critique of Hart’s article. Second, he accuses Hart of disregarding the internal morality of law, which is the source of all law and explains the obligation of fidelity to law. Third, he criticises Hart for focusing on the word level in terms of judicial interpretation; instead, he suggests that the whole objective of a provision should be the main attention.

The Definitions of Law and Morality

Fuller reminds the readers that Hart defends positivist views of such names as Bentham, Austin, Gray, and Holmes. Fuller recalls the definitions of law as proposed by Austin and Gray: (1) according to Austin, law is ‘the command of the highest legislative power’, which is the sovereign; (2) according to Gray, law is ‘rules laid down by judges’. A statute becomes law only if the court has interpreted and applied it. Moreover, Fuller points out the different views of Bentham and Austin on the constitutional limitations on the sovereign’s power: (1) Bentham said that the highest legislative power might be prevented by a constitution from making some kinds of laws; (2) Austin said that such limitation on the highest legislative power was absurd and impossible.

The definitions of law and the functions of the legislative body as offered by the said positivists are not sufficient, says Fuller. In times of crisis, he says, the obligation of fidelity to law cannot be explained by such positivist views. Therefore, he says that Hart has to seek first of all the definition of law that will ‘make meaningful the obligation of fidelity to law’.

According to Austin and Gray, Fuller says, morality refers to any standard ‘by which human conduct may be judged that is not itself law’. Law, then, excludes the idea of morality, which includes ‘the inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices’. 

Here Fuller turns to comment on Hart, who also appears to categorise as morality any extralegal notions about ‘what ought to be’. In the problem of interpretation, for example, Hart seems to consider ‘what ought to be’ significant only in the penumbral area, thereby leaving the umbra area sterile. Further, Fuller also raises six criticisms concerning Hart and legal positivism.

1. Hart assumes that ‘evil aims may have as much coherence and inner logic as good ones’. Fuller rejects this idea, saying, ‘[C]oherence and goodness have more affinity than coherence and evil.’ Is it not strange to imagine law that will work towards a realisation of iniquity?
2. Hart warns that infusion of morality into law may cause a danger, namely immoral morality: a situation in which standards of ‘what ought to be’ that actually cannot be called moral at all sneak into the judicial process. Fuller replies, ‘[W]hat is the most effective protection against this danger?’ He criticises legal positivists for giving simple-yet-misleading solutions by merely separating law from morals.
3. Fuller supposes that a judge is scheming to attain an evil purpose. Instead of invoking a ‘higher law’ (which is natural law, according to natural law theorists), is it not easier for the judge to take advantage of the maxim ‘law is law’ (which is the stance taken by legal positivists) so that his explanation will seem in line with the law itself?
4. Fuller says that it is natural for man to be reluctant to incorporate inhumane matters into law precisely because man indentifies law with moral demands. Anyone who finds a particular law might be secretly manipulated to disadvantage themselves will certainly appeal to a morality higher than law.
5. The real danger, Fuller says, is not the infusion or immoral morality into law, but rather the ‘law-is-law’ formalism. He claims that Hart, albeit rejecting formalism, proposes a theory that, ironically, leads to formalism.
6. Fuller reminds the readers of the mental reservation (arrière-pensée) when they read the dispute between law and morality as a conflict between two self-proclaimed authoritative pronouncements, which would render the discussion futile.

The Morality of Order and Law

In this part Fuller seeks explanation from Hart regarding the foundation of the legal system. Talking about the weaknesses of the imperative theory of law, Hart says in his lecture, ‘[N]othing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures.’ Precisely at this point, Fuller questions the nature of the fundamental rules within which the lawmaking process occurs. The main query is then, ‘[I]f law is made possible by “fundamental accepted rules” […] what are we to say of the rules that the lawmaking power enacts to regulate its own lawmaking?’ Hart, he criticises, has left this particular question untouched.

Fuller tries to figure out the characteristics of these fundamental rules. They are valid because of two aspects: (1) general acceptance, which is dependent on (2) general belief that the rules are necessary, right, and good. Further, he says that such rules seem to be rules of morality, in lieu of rules of law. These rules can impossibly be considered rules of law—in a sense of authoritative statement—because their function is precisely to determine when a public statement is authoritative. However, in the quotidian functioning of the legal system they are also treated in the same way as ordinary rules of law are. Therefore, Fuller concludes that there must be a merger, not just intersection, of law and morality. And that is why Hart never touches this issue, Fuller suggests, because he will lose the central tenet of legal postitivism, i.e. the sharp distinction between law and morality.

Fuller now goes further to restate the separation between law and morality as that between order and good order. Good order is defined as law complying with demands of ‘what ought to be’, of morality. Fuller then says law, taken as mere order, has its own internal morality.

The internal morality of law is shown in the illustration of an absolute monarch. Such a monarch, whose word (order) is the only source of law, must bear responsibilities in order for law to be effective and consistent. Therefore, the internal morality of law is related to ‘the procedure of making law’, or in other words the procedural/adjective law. Otherwise, the implementation of law will remain futile as he does not show correspondence between his words (orders) and his actions. Apart from that, there is the external morality of law which deals with the content of substantive law that the lawmaking authority (in this case, the monarch himself) applies to make a decision. These two sides of moralities influence each other—and Hart seems to ignore the idea of inner morality of law.

The Nazi Regime and Problems of Law and Morality

Responding to Hart, who criticises post-Nazi German courts for annulling certain Nazi statutes and thus accuses them of the abandonment of legal principles, Fuller stands by the side of the courts. For Fuller, the post-Nazi practice of retroactive law (or ex post facto law), in which curative statutes are enacted to fix past legal irregularities, indicates that in the past the state had a serious decline in legal morality. Specifically, Fuller highlights the secret statute that the Nazi regime enacted without public promulgation, in order to render massive killings in concentration camps ‘lawful’. Moreover, there are two important insults to the morality of law during Hitler’s rule: (1) the Nazis could entirely ignore any legal forms considered inconvenient and take a short cut via the party; and (2) Nazi courts could disregard any statute, even those enacted by the Nazis themselves, if it suited their convenience.

Fuller sees that Hart considers Gustav Radbruch and those living under the Nazi regime unaware of the moral dilemma they are being faced with—which for Hart is not supposed to be an obstacle to conclude, ‘When a statute is sufficiently evil, it ceases to be law.’ There are two duties to choose from, as Fuller tries to describe Hart’s position:

1. On the one hand, an amoral datum called law creates a moral duty to obey it.
2. On the other hand, one has a moral duty to do what he thinks is right and decent.

Fuller rejects the above description. According to him, the true problem is how to rebuild German legal institutions to become full of respect for law and justice. The dilemma is to meet both the demands of order and the demands of good order. Therefore, he sees the retroactive statute as a symbol of total clean-up of the legal system previously spoilt under Hitler, thereby ensuring the judiciary a more rapid recovery towards an ideal condition in which legal morality is given due respect and the proper meaning of fidelity to law is made possible.

The Problem of Interpretation: The Core and the Penumbra

The last counter-attack against legal positivism taken by Fuller is in the realm of judicial interpretation, i.e. Hart’s conception of the umbra and the penumbra. According to Fuller, Hart seems to formulate the tasks of interpretation as follows:

1. To determine the meaning of the individual words of a legal rule.
2. To determine the range of reference of such a word, or the aggregate of things to which it points. Words then must have a standard instance, a core of meaning that remains constant regardless of the context surrounding it. Without standard instances, effective communication would be impossible and thus a system of authoritative rules would not materialise.

Further, in the case of umbra, a judge does not play a creative role because the word has already had the standard instance. Only in the case of penumbra does the judge make an interpretation of the word in the light of its social aims. This is, in general, what Hart means by judicial interpretation.

Fuller rejects the above description. He argues that interpretation of statutes draws its meaning in a broader sense: a sentence, paragraph, page, or the whole text. In other words, one has to take a holistic approach when it comes to interpretation, instead of working in narrow space of the core and the penumbra. At this point Fuller illustrates his argument.

Suppose there is a rule: Whoever sleeps in any railway station will be punished by a fine of five dollars. Now, there are two persons arrested. The first is a passenger who, albeit sitting properly while waiting for a delayed train, was arrested because he was heard gently snoring. The second is a man who was arrested because he had shown an obvious intention to spend the night at the station by bringing a blanket and pillow, even though at the time of arrest he had not yet had a chance to sleep. If we follow Hart’s word-level interpretation and comply with the standard instance of the word ‘sleep’—where one’s mind and body are inactive temporarily, shown by closed eyes—, we may have to fine the first man and set free the second man (!). Obviously, then, an interpretation of individual words alone does not suffice.

Therefore, Fuller argues that the purpose of the statute should be the ultimate attention of legal interpretation. ‘We must, in other words, be sufficiently capable of putting ourselves in the position of those who drafted the rule to know what they thought “ought to be”. It is in the light of this “ought” that we must decide what the rule “is”.’ In every effort to interpret a statute, we have to ask ourselves: ‘What can this rule be for? What evil does it seek to avert? What good is it intended to promote?’ When a judge looks beyond individual words, hypothesising cases in this way becomes a great help in the interpretative process. Trying to figure out the purpose of a statute, the raison d’être, will enable us to grasp the whole ‘fabric of thought’.

This purposive interpretation allows one to figure out the end of a statute either (1) in a sly and indirect way, or (2) in an honest, explicit, and uninhibited way. This possibility is, Fuller suggests, what fears legal positivists because they believe that, if carried out in the second fashion, the purposive interpretation may threaten human freedom and dignity.

Conclusion

Both Hart and Fuller have demonstrated their arguments which are in opposition to one another. Hart believes that the separation of law and morals is a doctrine to be upheld in legal philosophy while rejecting the imperative theory of law, and that legal realism applied in the penumbral cases is more tenable than formalism in terms of judicial interpretation. On the other hand, Fuller believes the law is founded on internal morality, without which law cannot exist, and that the judicial interpretation should be purposive rather than based on the so-called standard instances of individual words. Fuller says that both legal positivism and natural law theory aspire to the fidelity to law, but the former ironically does not give sufficient arguments to attain it.

Further, these two philosophers’ explanations on some particular issues are not satisfying, at least in their respective articles. I am inclined to agree with Fuller that Hart seems to take a short cut when he gives a remark that the law under Hitler was too evil to be obeyed. Fuller, on the other hand, does not give a clear elaboration on the definitions of and differences between the internal and external moralities of law. Nor does Fuller seem to say anything about the other kind of law which Hart says does not belong to a command, i.e. rules of contracts. Throughout the article Fuller takes the definition of law merely as an order, simplifying law to order and morality to good order.

Bibliography

• Fuller, Lon L. 1958. ‘Positivism and Fidelity to Law’, Harvard Law Review, Vol. 71, No. 4, pp. 630–672.
• —————. 1964. The Morality of Law. New Haven, CT: Yale University Press. 
• Hart, H.L.A. 1958. ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, Vol. 71, No. 4, pp. 593–629.
• —————. 1997 (2nd edition). The Concept of Law. Oxford: Clarendon Press. Tucker, Edwin W. 1965. ‘The Morality of Law, by Lon L. Fuller’, Indiana Law Journal, Vol. 40, No. 2, pp. 270–279, http://www.repository.law.indiana.edu/ilj/vol40/iss2/5.