Philosophy, political morality, and history: Explaining the enduring resonance of the Hart-Fuller debate

New York University Law Review

Volumn 83, Issue 4, 2008, Pages 1059-1087

  Lacey, Nicola ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 56049119444     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (162)

1. Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958);
2. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).
3. This Article develops some of the arguments sketched in Nicola Lacey, H.L.A. Hart's Rule of Law: The Limits of Philosophy in Historical Perspective, 36 QUADERNI FIORENTINI 1203 (2007).
4. H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994).
5. PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965);
6. H.L.A. HART, LAW, LIBERTY AND MORALITY (1963).
7. LON L. FULLER, THE MORALITY OF LAW (1964).
8. Id.
9. See infra notes 30-32 and accompanying text (discussing debate's focus on Grudge Informer Case).
10. Hart, supra note 1, at 624.
11. Id. at 616.
12. HART, supra note 3.
13. By contrast, a number of Hart's other important papers were buried in relatively inaccessible sources until collected together in the 1980s. See, e.g., H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY (1983);
14. H.L.A. HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY (1982) [hereinafter HART, ESSAYS ON BENTHAM].
15. Hart, supra note 1, at 599.
16. On the moral and intellectual importance of clarity and of "plain speech" in Hart's argument, see Hart, supra note 1, at 594-601, 621-24.
17. See also Benjamin C. Zipursky, Practical Positivism Versus Practical Perfectionism: The Hart-Fuller Debate at Fifty, 83 N.Y.U. L. REV. 1170, 1177-84 (2008) (analyzing Hart's advocacy of veracity about law and clear understanding of meaning of law in tradition of Austin and Bentham).
18. For further discussion, see Nicola Lacey, Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 TEX. L. REV. 945, 960-63 (2006).
19. See HART, ESSAYS ON BENTHAM, supra note 10, at 53-104 (discussing effects of French and American Revolutions on Bentham's theory of positivism and his criticism of both revolutions' reliance on theories of natural rights);
20. Hart, supra note 1, at 597 ("Bentham was especially aware, as an anxious spectator of the French Revolution, that... the time might come in any society when the law's commands were so evil that the question of resistance had to be faced . . . .").
21. See Hart, supra note 1, at 594 n.4 (stating that little evidence exists as to whether analytical positivism or certain political conditions came first).
22. Id. at 601.
23. Id. at 594.
24. See generally Lacey, supra note 12 (examining relationship between analytical and sociological approaches to legal theory in light of Hart's work and arguing in favor of increased reliance on historical and sociological approaches to understanding nature of law).
25. JEREMY WALDRON, LAW AND DISAGREEMENT 33 & n.33 (1999) [hereinafter WALDRON, LAW AND DISAGREEMENT];
26. Jeremy Waldron, Normative (or Ethical) Positivism, in HART'S POSTSCRIPT 411, 411 (Jules L. Coleman ed., 2001) [hereinafter Waldron, Normative (or Ethical) Positivism].
27. See generally TOM D. CAMPBELL, THE LEGAL THEORY OF ETHICAL POSITIVISM (1996) (providing overview of "ethical positivism").
28. This phrase is borrowed from RONALD DWORKIN, LAW'S EMPIRE (1986).
29. See generally GERRY SIMPSON, LAW, WAR AND CRIME: WAR CRIMES TRIALS AND THE REINVENTION OF INTERNATIONAL LAW (2007) (exploring increasing emphasis on legality in international law).
30. Hart, supra note 1.
31. For an account of the history and aftermath of the debate - which, ironically, saw the inception of a warmer relationship between the two protagonists - see NICOLA LACEY, A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM 196-202 (2004).
32. HART, Bentham and Beccaria, in ESSAYS ON BENTHAM, supra note 10, at 41, 41 (sharing Bentham's admiration for this distinction, which in Beccaria's thought, accompanied refusal to "pretend[ ] that the reforms which he advocated were already, in some transcendental sense, law or 'really' law").
33. See, e.g., supra notes 13-15 and accompanying text (describing Hart's insistence upon division between conceptual and moral questions about law).
34. For honorable exceptions, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 270-76 (1980), discussing the rule of law and its limits,
35. JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 210, 210-29 (1979),
36. analyzing the importance of the rule of law, WALDRON, LAW AND DISAGREEMENT, supra note 18, at 94-101,
37. evaluating various arguments regarding positivism and the rule of law, and Jeremy Waldron, Positivism and Legality: Hart's Equivocal Response to Fuller, 83 N.Y.U. L. REV. 1135, 1146,1156 (2008), claiming that Hart alluded to principles of legality rather infrequently in his work except for significant mentions in a few instances.
38. [1962] A.C. 220 (H.L.) (appeal taken from Eng.) (U.K.).
39. See HART, supra note 3, at 8-12 (claiming that judges in Shaw sacrificed principle of legality requiring clear definition of criminal offense);
40. H.L.A. HART, Punishment and the Elimination of Responsibility, in PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 158,181-82 (1968) (defending principle of legality in discussion of criminal liability);
41. see also Waldron, supra note 25, at 1137-38 (contending that while Hart acknowledged existence of principles of legality, he often equivocated with respect to their role in determining law).
42. For further discussion of these issues, see Lacey, supra note 12, at 960-63, 969-75.
43. See generally HART, supra note 2.
44. The ancient roots of the rule of law concept are discussed by Simon Chesterman: Plato held in the Republic that the best form of government was rule by a philosopher king, but allowed that rule by law was a second option warranted by the practical difficulties of locating an individual with the appropriate qualities to reign. Aristotle ... concluded] in The Politics that "the rule of law" was preferable to that of any individual, a position later quoted by John Adams on the eve of the American Revolution as the definition of a republic: that it is "a government of laws, and not of men." Simon Chesterman, An International Rule of Law?, 56 AM. J. COMP. L. 331, 333-34 (2008) (citations omitted).
45. Fuller, supra note 1, at 652-58;
46. Hart, supra note 1, at 618-20.
47. Hart, supra note 1, at 618-20.
48. For a more careful reading of the case, see H.O. Pappe, On the Validity of the Judicial Decisions in the Nazi Era, 23 MOD. L. REV. 260, 261-63 (1960).
49. See generally David Dyzenhaus, The Grudge Informer Case Revisited, 83 N.Y.U. L. REV. 1000 (2008) (analyzing Hart-Fuller debate on Grudge Informer Case).
50. See Hart, supra note 1, at 619-20 (arguing that explicitly retroactive law and punishment of woman would have merit of candor).
51. Id. at 620.
52. Id.
53. RAZ, supra note 25, at 213-14.
54. See Hart, supra note 1, at 619 (describing informer laws as "established" and characterizing support for German court's disregard of them as "hysteria").
55. FULLER, supra note 4, at 46.
56. See infra note 62 and accompanying text (discussing such constraints).
57. Hart, supra note 1, at 621-24.
58. HART, supra note 2, at 155-212.
59. Id. at 157-67, 206-07.
60. Hart made a more sympathetic incorporation of part of Fuller's conceptual apparatus in his later review of Fuller's book. H.L.A. Hart, Book Review, 78 HARV. L. REV. 1281, 1284-85 (1965) (reviewing LON L. FULLER, THE MORALITY OF LAW (1964)) (conceding that Fuller's discussion of principles of legality was valid and novel);
61. see also Waldron, supra note 25, at 1141-43 (describing importance of principles of legality to believers in natural law like Fuller).
62. LACEY, supra note 22, at 184.
63. See also CAMPBELL, supra note 18, at 1 ("[T]he belief in the amoralism ... of Legal Positivism is profoundly mistaken.");
64. Liam Murphy, The Political Question of the Concept of Law, in HART'S POSTSCRIPT, supra note 18, at 371 ("[I]t is somewhat misleading of Hart to say that his account is morally neutral.");
65. Liam Murphy, Better To See Law This Way, 83 N.Y.U. L. REV. 1088, 1096 (2008) (discussing Hart's recognition of moral value in clarifying distinction between what law is and what law ought to be);
66. Liam Murphy, The Concept of Law, 36 AUSTRALIAN J. LEGAL PHIL. 1, 10 (2005) (arguing that "a nonpositivist concept of law leads to quietism, a noncritical attitude to the state and its directives," and hence that positivism's moral value lies in preventing quietism);
67. Waldron, Normative (or Ethical) Positivism, supra note 18, at 411 (discussing normative positivism);
68. Waldron, supra note 25, at 1151 n.58 (arguing that Hart raises possibility that hard positivism is responsive to principles of legality such as principle of certainty).
69. See, e.g., Hart, supra note 1, at 619-20 ("[T]he thing to do with a moral quandary is not to hide it.").
70. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY app. at 326-27 (1978).
71. HART, Legal Duty and Obligation, in ESSAYS ON BENTHAM, supra note 10, at 127, 150-51.
72. Id.
73. Hart, supra note 1, at 593-600.
74. A key part of Hart's argument was that the early positivists' various analytic claims needed to be distinguished not only from one another, see id. at 601, but also from their political and moral utilitarianism. But Hart's own tendency in the lecture was to speak in terms of utilitarianism as much as positivism, and this confuses the issue he himself was trying to clarify.
75. On the moral case for the positivist disposition toward law's authority, see HART, supra note 2, at 207-12.
76. See Hart, supra note 1, at 618 (criticizing jurist Gustav Radbruch's argument for natural law as "only half digest[ing] the spiritual message of liberalism").
77. See id. at 596-97 (discussing utilitarian ethic).
78. See id. at 615-18 (discussing Radbruch's conversion from positivist to proponent of natural law).
79. Id. at 617.
80. Fuller, supra note 1, at 649-50;
81. see also supra notes 30-32 and accompanying text (describing woman who denounced her husband under Third Reich law).
82. FULLER, supra note 4, at 46.
83. Id. at 63-65.
84. Id. at 51-62;
85. Fuller, supra note 1, at 650-51.
86. FULLER, supra note 4, at 49-50.
87. Id. at 70-79.
88. Id. at 79-81.
89. Id. at 46-49.
90. See, e.g., Fuller, supra note 1, at 643 ("In so far as possible, substantive aims should be achieved procedurally, on the principle that if men are compelled to act in the right way, they will generally do the right things.").
91. See, e.g., Hart, supra note 1, at 621-24 (recognizing that developed legal systems contain certain fundamental principles);
92. HART, supra note 2, at 185 (acknowledging that law has generally been "profoundly influenced [by] . . . conventional morality").
93. For Hart's discussion of the connection between justice and law, and the relation between legal and moral rules, see HART, supra note 2, at 155-212.
94. Fuller, supra note 1, at 659-60.
95. Id. at 662.
96. Id. at 662-64.
97. For a persuasive discussion and refinement of this aspect of Fuller's critique, see Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. REV. 1109, 1124-29 (2008).
98. For an exhaustive consideration of the various ways in which law and morality are related, see generally Leslie Green, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. REV. 1035 (2008).
99. On the unfinished debate between Hart and Dworkin, see LACEY, supra note 22, at 330-38, 348-54. The debate has continued beyond Hart's death.
100. See generally Ronald Dworkin, Hart's Postscript and the Character of Political Philosophy, 24 OXFORD J. LEGAL STUD. 1 (2004) (responding to postscript of Hart's The Concept of Law, supra note 2);
101. H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969, 982-87 (1977) (discussing Dworkin's "noble dream").
102. On the analogies between Fuller's "inner morality" leading to a law worthy of fidelity and Dworkin's conception of "law as integrity," see LACEY, supra note 22, at 332-33.
103. See also ROBERT S. SUMMERS, LON L. FULLER 14 (Jurists: Profiles in Legal Theory, William Twining ed., Stanford Univ. Press 1984) (noting Fuller's influence on Dworkin).
104. LACEY, supra note 22, at 142-44.
105. For an illustration of the sort of approach I have in mind, see generally the examination of the connection between social conditions and the rule of law in ROBERTO MANOABEIRA UNGER, LAW IN MODERN SOCIETY (1976).
106. See supra note 29 (discussing ancient roots of rule-of-law concept).
107. See HART, supra note 2, at 4-6, 15-16 (analyzing central or standard cases of phenomenon of law);
108. see also id. at 212-37 (discussing same with regard to international law).
109. HART, supra note 2, at 50-78 (providing post-Austinian analysis of sovereignty).
110. See J.M. BEATTIE, POLICING AND PUNISHMENT IN LONDON, 1660-1750: URBAN CRIME AND THE LIMITS OF TERROR 51-57 (2001) (discussing contemporary lack of attention to and concern with way in which crime was fostered by social conditions);
111. PETER KINO, CRIME, JUSTICE AND DISCRETION IN ENGLAND 1740-1820, at 77-78, 184-87 (2000) (discussing enforcement of vagrancy laws).
112. See generally Nicola Lacey, In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory, 64 MOD. L. REV. 350 (2001) (exploring changes in conception of responsibility within English criminal law since eighteenth century).
113. See, e.g., Fuller, supra note 1, at 651 ("The extent of the legislator's obligation to make his laws known to his subjects is, of course, a problem of legal morality that has been under active discussion at least since the Secession of the Plebs.").
114. Id. at 651-52 (discussing problem of administrative execution of published laws according to unpublished regulations).
115. See Lacey, supra note 77, at 363 (describing "the changing relations between individual citizens and the nation state and its institutions").
116. See generally NICOLA LACEY, WOMEN, CRIME AND CHARACTER: FROM MOLL FLANDERS TO TESS OF THE D'URBERVILLES 7-8, 12-23 (2008) (describing elements of England's eighteenth-century criminal justice system).
117. My sketch of eighteenth-century criminal justice here and in the next paragraph draws upon a range of sources. See PETER KING, CRIME AND LAW IN ENGLAND, 1750-1840: REMAKING JUSTICE FROM THE MARGINS 10-14 (2006) (describing transformation of English criminal procedure during era);
118. KING, supra note 76, at 1 (discussing judicial process for property crimes in England whereby "the administration of the eighteenth-century criminal justice system created several interconnected spheres of contested judicial space in each of which deeply discretionary choices were made");
119. JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 243 (2003) ("Lawyerization had the long-term effect of putting pressure on the bench to turn discretionary practice into rule ... because lawyers were a force for consistency in practice among the different judges before whom they appeared.");
120. J.M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 LAW & HIST. REV. 221, 221-26 (1991) (discussing era's lack of criminal trial procedure and impact of lawyers on criminal courts);
121. Nicola Lacey, Character, Capacity, Outcome: Toward a Framework for Assessing the Shifting Pattern of Criminal Responsibility in Modern English Law, in MODERN HISTORIES OF CRIME AND PUNISHMENT 14, 21 (Markus D. Dubber & Lindsay Farmer eds., 2007) ("[W]ith character evidence dominating both trial and pretrial processes, those with bad reputations were much more likely to be prosecuted and almost certain to be convicted ....");
122. Nicola Lacey, Responsibility and Modernity in Criminal Law, 9 J. POL. PHIL. 249, 256 (2001) ("English criminal law of the eighteenth century had neither a comprehensive Code nor even a systematic process of case reporting . . . .");
123. John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. CHI. L. REV. 263, 263-64 (1978) ("[P]rosecution and defense counsel cannot be called regular until the second half of the eighteenth century.");
124. John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1, 56 (1983) (describing "justice of the peace" as "an amateur, a citizen rendering part-time and largely uncompensated service in law enforcement and other matters of local government").
125. See sources cited supra note 81.
126. See KING, supra note 81, at 47-50 (discussing twelve assize judges drawn from Westminster courts);
127. Bruce Lenman & Geoffrey Parker, The State, the Community and the Criminal Law in Early Modern Europe, in CRIME AND THE LAW: THE SOCIAL HISTORY OF CRIME IN WESTERN EUROPE SINCE 1500, at 11, 32 (V.A.C. Gatrell et al. eds., 1980) (discussing estimated five thousand lay justices).
128. See Douglas Hay, Property, Authority and the Criminal Law, in ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 17, 40 (Douglas Hay et al. eds., 1975) ("The prerogative of mercy ran throughout the administration of the criminal law, from the lowest to the highest level.").
129. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT (1975).
130. Id. at 21-24 (discussing passage of Black Act and its harsh penalties, including capital punishment for many kinds of poaching).
131. Id. at 197.
132. Id. at 262-63.
133. John Brewer & John Styles, Introduction to AN UNGOVERNABLE PEOPLE: THE ENGLISH AND THEIR LAW IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES 11, 14 (John Brewer & John Styles eds., 1980).
134. See, e.g., LINDSAY FARMER, CRIMINAL LAW, TRADITION AND LEGAL ORDER: CRIME AND THE GENIUS OF SCOTS LAW, 1747 TO THE PRESENT 6 (1997) (discussing linkage between "principle of legality" and "the great penal codes of the Enlightenment").
135. See, e.g., FRANK R. STRONG, JUDICIAL FUNCTION IN CONSTITUTIONAL LIMITATION OF GOVERNMENTAL POWER 12 (1997) (noting that judiciary serves to limit governmental power through judicial review process).
136. For a discussion of the passage of the Human Rights Act of 1998, which provides the courts with a power to declare legislation incompatible with European Convention on Human Rights standards but not to invalidate it, and of its consequences for adjudication in Britain, see ANDREW ASHWORTH, HUMAN RIGHTS, SERIOUS CRIME AND CRIMINAL PROCEDURE 4 (2002).
137. See also CONOR GEARTY, CAN HUMAN RIGHTS SURVIVE? 93-98 (2006) (discussing rights guaranteed by Act and characterizing judicial declarations of incompatibility with Act as "courteous requests for a conversation, not pronouncements of truth from on high").
138. See Stephen C. Neff, A Short History of International Law, in INTERNATIONAL LAW 31, 50-51, 55 (Malcolm D. Evans ed., 2003) (discussing formation of League of Nations, movement to codify international law after World War I, and emphasis on human rights in late twentieth century).
139. See, e.g., HART, supra note 2, at 239-40 (claiming to provide theory of law that is not tied to any particular legal system or culture).
140. See id. at 81 (discussing secondary rules).
141. Id. at 91-99 (setting out fable of law's origins);
142. PETER FITZPATRICK, THE MYTHOLOGY OF MODERN LAW 183-210 (1992) (analyzing and criticizing Hart's fable of law's origins).
143. See FINNIS, supra note 25, at 14-18 (discussing normative nature of Hart's supposedly purely descriptive account of law). Hart's more elaborate statements are to be found in his explicitly normative works.
144. For another example of his inclination to maintain a distinction between conceptual and moral questions, see HART, supra note 3, at 1-4,
145. separating analytical questions from moral questions in determining the proper relationship between law and morality, and HART, Prolegomenon to the Principles of Punishment, in PUNISHMENT AND RESPONSIBILITY, supra note 27, at 4, stating that "the beginning of wisdom ... is to distinguish similar questions and confront them separately."
146. Hart, supra note 1, at 617-18.
147. Id. at 618.
148. Id.
149. Dyzenhaus, supra note 32;
150. see also Pappe, supra note 32, at 261-63 (analyzing Hart and Fuller's discussion of Grudge Informer Case).
151. See Hart, supra note 1, at 619 (discussing choice between punishing past wrong through retroactive legislation and leaving wrong unpunished).
152. See Antonio Cassese, International Criminal Law, in INTERNATIONAL LAW, supra note 93, at 721, 722 ("Statutes of the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East were adopted in 1945 and 1946 respectively, laying down new classes of international criminality, these being crimes against humanity and crimes against peace." (abbreviations omitted)).
153. For a discussion of these broad developments, see generally SIMPSON, supra note 20.
154. App. No. 20190/92, 335-C Eur. Ct. H.R. (ser. A) (1995);
155. see also S.W. v. United Kingdom, App. No. 20166/92 , 335-B Eur. Ct. H.R. (ser. A) (1995) (finding husband punishable for marital rape despite his claim that he had no notice of potential criminal liability).
156. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 76-90 (1978) (discussing manifest criminality in context of common law larceny).
157. For further discussion on the recent challenges to the marital rape exemption in English law, see generally Stephanie Palmer, Rape in Marriage and the European Convention on Human Rights: C.R. v. U.K. and S.W. v. U.K., 5 FEMINIST LEGAL STUD. 91 (1997).
158. For a discussion regarding domestic law on this issue, see generally Marianne Giles, Judicial Law-Making in the Criminal Courts: The Case of Marital Rape, 1992 CRIM. L. REV. 407.
159. HART, supra note 3, at 1-24.
160. FINNIS, supra note 25, at 270-76.
161. Id.
162. For further discussion, see Nicola Lacey, Feminist Legal Theory and the Rights of Women, in GENDER AND HUMAN RIGHTS 13, 53-55 (Karen Knop ed., 2004).