The Hart Fuller Debate
Positivism and the Separation of Law and Morals
From Harvard Law Review, Vol. 71 (1958), pp.593-529
John Austin – “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”
Sir William Blackstone in his “Commentaries said,” that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original.”
The Nazi Experience
Many German thinkers who lived through the Nazi regime, reflected upon its evil manifestations in the legal system and converted to Natural Law.
One of these thinkers, Gustav Radbruch, had himself shared the “positivist” doctrine until the Nazi tyranny, but he was converted by this experience.
Before his conversion Radbruch held that resistance to law was a matter for the personal conscience, to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience.
Radbruch, however, had concluded from the ease with which the Nazi regime had exploited subservience to mere law-or expressed, as he thought, in the “positivist” slogan “law as law” (Gesetz als Gesetz)-and from the failure of the German legal profession to protest against the enormities which they were required to perpetrate in the name of law, that “positivism” (meaning here the insistence on the separation of law as it is from law as it ought to be) had powerfully contributed to the horrors.
His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality.
No positive enactment or statute, however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality.
However, this position contradicts the very basic assertions of positivists like John Austin, who in the Province of Jurisprudence Determined said,
“The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God. ..the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.”
The Grudge Informer Case
Judgment of July 27,1949, Oberlandesgericht, Bam berg, 5 Siiddeutsche Juristen-Zeitung 207 (Germany 1950)
In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people.
The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitsberaubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained i
The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime.n force continuously since its enactment.
The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, to quote the words of he court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.”
HLA Hart uses this case to make the following point:
This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the over throw of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective-that of punishing woman for an outrageously immoral act-but his was secured only by declaring a statute established since 1934 not to have the force of law, and at east the wisdom of this course must be doubted.
This reasoning Hart argue offends the very basic legal principle of Nulla Poena Sine Lege.
“No penalty without a law“, it refers to the legal principle that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of virtually all modern democracies.
There were, of course, two other choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way.
What about “Nullum crimen, nulla poena sine praevia lege poenali“?
Which means penal law cannot be enacted retroactively.
“Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour.”
It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems. Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are.
“The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort.” The Morality of Law
– Lon Luvois Fuller (1902 – 1978)
Lon Fuller develops and defends a modern version of Natural Law Legal Theory.
Like any NLLT, it holds that there is a conceptual connection between law and morality.
Fuller’s theory differs from Classical NLLT in at least two ways: nIt is not committed to Natural Law Ethical Theory
It applies at the level of the entire system, not of individual laws. (That is, it asserts a holistic connection, not an atomistic connection, between law and morality.)
Eight Ways to Fail to Make Law
Rex, the newly installed king, is determined to improve the legal system of his country.
He sets about to make reforms in the legal system only to make one blunder after another.
If Fuller is right, Rex fails on eight occasions to make law, and for eight different reasons.
Failure #1: No Generality
Because Rex finds it hard to draft general rules, he decides to take legal disputes on a “case-by-case” basis.
There are not general rules at all—only particular decisions in particular cases.
Failure #2: Secret Rules
When the “case-by-case” method failed, Rex made general rules, but refused to publish them.
Though he tried to apply the rules as he had written them, only he knew what the rules were.
Failure #3: Retroactivity
When the problems with the secret statute approach to law were apparent, Rex decided he would decide all cases at the end of the year and publish the rules of law he had used to decide them.
No rules of law were made before they were applied.
Failure #4: Unintelligibility
After complaints about the ex post facto approach to law, Rex finally published a legal code. It was, though, (like our tax code) completely unintelligible.
Though citizens had a published code in advance, they could not understand it.
Failure #5: Logical Inconsistency
Hurt by objections to his first attempt at publishing a code in advance, Rex worked to make the code intelligible. Unfortunately, the new code was highly contradictory
Not a single provision existed that was not contradicted by another provision.
Failure #6: Requiring Impossible Actions
When his subjects rejected his contradictory code, Rex was, frankly, irritated with them
He published a code that required of his subjects actions that it was impossible for them to perform.
Failure #7: Excessive Change
Rex worked hard to redraft the law—even enlisting the help of a group of experts.
No sooner had the new code gone into effect than it was completely replaced by another, and that by another, and another.
The law changed day-by-day, minute-by-minute.
Failure #8: Not Applied as Stated
Finally, Rex decided to solve the problems with the excessive changes in the code by deciding cases himself.
Sometimes he would decide them in accordance with the code, often not.
The statutes were no help in determining how a case would be decided.
8 Ways to Fail to Make Law
Fuller argues that the parable shows that law must, as a conceptual matter, in general be:
Prospective (non retroactive);
Such as to require only the possible;
Relatively constant over time; and,
Applied as stated.
These eight requirements are uncontroversial requirements on the existence of a legal system.
Complete failure in any of the eight respects entails the absence of a legal system—not merely the absence of a good legal system
Each of the eight requirements is, as well, a moral requirement.
To the degree that any system of social control falls short with respect to any of these, it is morally deficient.
These requirements constitute a sort of “procedural moral requirement” for legal systems.
Procedural Moral Requirement: They do not place a “content restriction” on legal systems.
Legal Systems: They do not place any restrictions on individual laws. Individual laws may have any of these eight features and still be valid in virtue of their place in an existing legal system
“It’s Already In There!” Positivists have always said that law is a system of social control through rules. That means that whatever is necessary for social control through rules is a requirement on a legal system. Fuller has just drawn out an implication of positivism.
The classical debate between positivism and NLLT has always been whether there are substantive limits on what can count as a law or a legal system.
Fuller’s “Inner Morality of Law” argument does not show that there are such limits.
Furthermore, NLLT has always argued that there is a connection between law and morality that is “special to law”. That is, it is something about a system’s being a legal system that establishes the connection.
Fuller’s “Inner Morality of Law” theory holds equally of all systems of social control through rules.