Hart v. Fuller

The late opening today costs us a meeting. To limit the damage, I am posting parts of my notes on Fuller's criticisms of Hart and some general questions/comments about the Hart-Fuller debate that will propel us into discussing Hart's book The Concept of Law.

The Main Issues
Hart’s main aim is to defend the separation thesis and detach it from the command theory of law. Fuller’s main concern is to argue that the separation thesis undermines any notion of fidelity to law and to defend the notion of the “internal morality of law.” One might say that Fuller poses against Hart’s revised positivism a revised natural law theory.

Fuller’s criticisms in more detail:
Hart seems concerned to prevent smuggling of “immoral morality” into legal interpretation, but Fuller questions his understanding of morality
i. Fuller suggests that ideas of coherence and logic keep out a lot of immoral morality
ii. Evil judges would more likely take refuge in letter than appeal to higher law
iii. Eschewing what maybe Hart fears: the Pope, i.e., dogmatic natural law view.

The essential connection between law and morality is in the “morality that makes law possible,” the “inner morality of law.” Traditional NL is about external morality (that is, substantive committments on specific moral issues like abortion, torture or euthanasia; but not Fuller. Fuller's internal morality is about necessary qualities of any legal system.
i. Order implies a kind of morality, at least moral respectability
ii. So lawmaking as an attempt at order does too and that context is essential to understanding law as law and fidelity thereto.
iii. So the connection between law and morality is that the enterprise of law, making it, enforcing it, interpreting it, requires certain things, e.g., that laws be clear, publicly announced, thgat they cohere with one another, that they pe possible to follow. These are moral aspects of law intelligibly related to law's purpose: the imposition of order on human communities.

F responds to H’s treatment of the Nazi era informer cases
i. Hart’s view is a dodge and suggests existence of two separate normative systems, law and morality, that are unconnected to one another. This undermines any coherent notion of legal duty
ii. There is a link here that would expose the wickedness of Nazi law, etc., the inner morality of law.
iii. F also thinks positivism did encourage Nazis because it smoothed there rise to power and suggested detachment of legal from moral duty

H’s core/penumbra distinction relies on a false “pointer” theory of language. Really interpretation takes place at level of sentences, paragraphs, pages, etc., and not just words. This requires attention to overall structure that in turn is inevitable purposive and connected to internal morality.

So: once again:
Hart wants to allay fears of those who reject positivism by rejecting “command” theory and defending separation thesis against charges of moral relativism, etc.
Fuller wants to reject Hart’s separation thesis, but not by defending traditional natural law or “higher law” (the external morality of law), but by defending internal morality of law—this doesn’t require us to buy into dubious content of traditional natural law (=Catholic NL theory—cf. Hart, 623).
Modified and revised positivism v. modified and revised NL.

Some Questions
In re Hart:

• Hart admits the relevance of natural law understood in a certain way: the minimum content related to survival. Moreover, in place of the command theory he has a view of rules separate from command as such. What kinds of rules? What is the context of these rules and does that provide the necessary intelligibility for legal purposes? What is the root of them? Is there a connection with something else there?
• Does the minimal natural law provide enough intelligibility? Or does it by contrast admit too much?
• H denies that positivism is committed to moral relativism, but he also accepts the reality of a plurality of ultimately incommensurable moral values (e.g., justice v. the rule of law, in the Nazi informer cases). Is this coherent?

In re Fuller:

• Fidelity to law requires a connection between law and morality and F takes that to be the internal morality of law. Is the “internal morality” enough? F eschews more fulsome (traditional) account of natural law or higher law. Is this wise? Hart suggests that the norms necessary for the rule of law don’t necessarily need to be moral and a system that had the rule of law could be immoral in the larger sense (South Africa), so does F need more than the internal morality?
• Is his “purposive” view of law too vague? Does one need to say more about specific purposes or does this trespass into the “external” morality of law? If so, does it suggest that F’s theory is inadequate?
• Are Fuller’s criticisms of Hart’s theory of language accurate, adequate?

With respect to both

• Hart thinks natural law theory requires the counter intuitive thesis that an unjust law is no law at all; Fuller mostly ignores this issue. How important is it and is there a way to understand that slogan that makes sense?
• Both Hart and Fuller are nervous about traditional natural law because it seems to require too much moral agreement among people. Does it? Fuller in particular worries that natural law is often simply a rival system of positivism. Is this accurate? Is there a more traditional natural law view that answers these dilemmas and better explains the intelligibility of law and legal systems than either of these accounts?