The Hart-Fuller Debate in the Tw nty-first C ntury. Peter Cane (ed.) Hart Publishing, 2010

Transcription

1 The Hart-Fuller Debate in the Tw nty-first C ntury Peter Cane (ed.) Hart Publishing, 2010 In 2008, the fiftieth anniversary of the debate between HLA Hart and Lon Fuller at Harvard Law School and in the Harvard Law Review1 prompted much discussion.* 2 Peter Cane writes in his preface to this excellent collection of essays that [t]he aim was to look forward rather than backward, using the debate as a point of departure and inspiration.3 Cane also tells us that many of the contributors to the book were sceptical of this aim, feeling that the debate should not be used as a springboard. This tension is very evident in the essays, some of which, while interesting, do not deal sufficiently with the relevance of the debate in the twenty-first century. But on the whole the book contains insightful and thoughtprovoking contributions. It is organised, in the spirit of debate, in the form of a series of exchanges on eight topics. The Hart-Fuller debate touched on (or, at least, is relevant to) a vast number of issues, as is evidenced by the vast number of issues canvassed in this volume; but it centred on Hart s defence of positivism and the separation of what the law is from what it ought to be. Notwithstanding Fuller s argument that law and moral values are inseparable, the differences between the Hart and Fuller are not actually that great. Both sought a position somewhere between the legal realism that had influenced Harvard Law School, on the one hand, and the legal formalism with which Hart s positivism had been associated, on the other. And both took issue with the jurisprudence of Gustav Radbruch, whose experience during the Nazi period had led him to confirm a substantive natural law theory. Maintaining See H. L. A. Hart, Positivism and the Separation of Law and Morals (1957-8) 71 Harvard Law Review 593; Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart (1957-8) 71 Harvard Law Review 630. In addition to the papers presented at a colloquium at the Australian National University in December 2008, which are collected in the volume under review, there was also a symposium at the New York University School of Law in February 2008, published in (2008) 53 New York University Law Review, Symposium: The Hart-Fuller Debate at Fifty, Peter Cane (ed.), The Hart-Fuller Debate in the Twenty-First Century (2010), v.

2 Book Reviews 169 a distinction between procedural and substantive morality, Fuller argued that only the former was internal to law, although he thought that the inner morality of law would be conducive to morality in general. Nicola Lacey opens the volume with a reinterpretation of the context and a reassessment of the significance of the Hart-Fuller debate.4 Her rewarding chapter argues that although Hart seems to have won the war in view of the greater attention (favourable and critical) that his ideas have received, Fuller was disadvantaged because the terms of the debate were set by Hart. By choosing at that moment to debate with Hart and to defend a natural law position, Fuller was risking an encounter in which his credentials as a legal philosopher were bound to be the primary focus, and in which he found little opportunity to draw on his broader expertise and interests.5 Fuller disliked being described as (in his words) stirring the witches caldron of irrational, metaphysical natural law theory.6 Lacey conveys Fuller mostly through insightful references to correspondence from the large archive at Harvard as insecure and exasperated at not being properly understood. It is not an especially flattering portrayal. In 1960, Fuller wrote to Boris Bittker: In my debate with H.L.A. Hart I don t think I presented any conclusion as a deduction from natural law premises, yet nine readers out of ten seem to read that exchange as if I were apologizing for natural law throughout. The result is that I am widely credited by intelligent readers with espousing a doctrine I never proposed, namely, that a law that is evil enough in its intention is not really law at all.7 Since Hart was setting the terms, Lacey argues, Fuller was unable to adequately discuss his interest in adjudication as an institutional form in the debate. Instead, Fuller s interest in institutional form was addressed in his contemporaneous article, The Form and Limits of Adjudication, which was first presented in a very early draft in 1957 but was only posthumously published in One cannot help feeling that Lacey s argument is a touch unfair to Fuller. For sure, he was constrained somewhat by the terms of the debate, but nonetheless a significant contribution to jurisprudence in its own right. Lacey concludes, however, with a defence of Fuller and a plea Nicola Lacey, Out of the Witches Cauldron? Reinterpreting the Context and Reassessing the Significance of the Hart-Fuller Debate, above n 3. Ibid 32. See Robert S. Summers, Lon L. Fuller (2004), 63, 162. Fuller to Boris I. Bittker, 4 April 1960, The Papers of Lon Fuller, Harvard Law School Library, box 14, folder 1. Lon L. Fuller, The Form and Limits of Adjudication (1978) 92 Harvard Law Review 353.

3 170 (2010) 35 Australian Journal of Legal Philosophy for Fuller s engagement with law s institutional forms, along with his interdisciplinary approach, to become more fully appreciated in the future.9 As well as law s institutional forms, another area that was notably lacking in the Hart-Fuller debate was the protection of human rights. Hilary Charlesworth points out in her chapter that it is striking that international human rights standards have no place in the debate, even though the 1948 Universal Declaration of Human Rights was by then ten years old To see the relevance of the Hart-Fuller debate for human rights, Charlesworth claims, we have to look at it through the lens of the rule of law the principles of legality as Hart preferred, or the inner morality of law as Fuller preferred. Noting the central importance of the language of the rule of law in post-conflict societies, Charlesworth objects that those wishing to export the rule of law share the premise that the legal sphere is distinct from and superior to politics a premise which is often challenged by the evidence.11 Too much focus, she objects, is placed on legal institutions, and instead more emphasis needs to be placed on the telos of the rule of law. Western models of legal institutions and the rule of law, closely associated with liberal legalism, are not going to be able to respond to the complexities of different situations. Although Charlesworth briefly notes Hart s and Fuller s different approaches to immoral laws with Hart maintaining their validity but suggesting civil disobedience, and with Fuller questioning their legality because they fail to meet the requirements of inner morality she dodges this central question of the Hart-Fuller debate by arguing for a teleological approach to the rule of law that concentrates on the question of which mechanisms can effectively restrain power in a particular society.12 Karen Knop is therefore right to object that, because it takes silence as silence, Charlesworth s chapter leaves us without a sense of the debate s more straightforward relevance for international human rights law.13 In her response to Charlesworth, Knop proposes a new perspective on the debate, a new reading for our time.14 She argues that, at the time, the Hart-Fuller debate contributed to the debate about whether international (human rights) law was law. Both Hart and Fuller viewed international law as underdeveloped. But while Hart s refutation of Austin s command theory Lacey, above n 3, Hilary Charlesworth, Human Rights and the Rule of Law After Conflict, above n 3, Ibid Ibid Karen Knop, The Hart-Fuller Debate s Silence on Human Rights, above n 3, Ibid 78.

4 Book Reviews 171 of law was compatible with international law, Fuller was opposed to international adjudication because he thought that adjudication was unsuitable for resolving the polycentric, socio-political questions that generally characterise international disputes. In the intervening fifty years since the debate, Knop claims that it has not been the concept of law but the discussion of morality that has been most relevant. Human rights, Knop claims, have now taken the role of morality in the debate. To explain this relevance, she takes the example of Oppenheimer v Cattermole.15 In that case, the English courts had to decide whether to apply an immoral German law from the Third Reich or make an exception based on public policy. The House of Lords made an exception, and Knop argues that therefore public policy, informed by international human rights law, reflects a morality internal to law.16 This, however, seems a forced and tenuous connection between human rights and the Hart- Fuller debate s discussion of morality after all, the English court s exception was based on external, substantive morality, not the procedural morality that informed Fuller s jurisprudence. Larry May, in his chapter on international criminal law, argues that international lawyers need to take seriously the procedural concerns of Hart and Fuller. May concentrates in particular on the right of habeas corpus. It is true that Hart and Fuller did not recognize the importance of the right of habeas corpus; however, according to May, both Hart and Fuller certainly supply the theoretical basis for supporting habeas corpus rights, especially at the international level.17 There is, May argues, a striking similarity in how they regarded the internal perspective of law,18 and Hart even accepted a minimal content of natural law, which he was prepared to call the inner morality of law though he doubted whether it should really be called morality because [i]t is unfortunately compatible with very great iniquity.19 Their recognition of the importance of a procedural natural law lends support, in May s view, to treating the right of habeas corpus as intrinsic to the concept of law itself. This argument does not seem entirely convincing. For, as Christopher Kutz rightly points out in his response to May, the right to judicial review of executive detention is not merely a matter of procedural justice but depends also on substantive values, notably those of liberty, non-arbitrariness and fairness.20 What is more, Kutz argues, Oppenheimer v Cattermole [1976] AC 249 (HL). 16 Knop, above n 3, 72 (emphasis in original). 17 Larry May, International Criminal Law and the Inner Morality of Law, above n 3, Ibid H.L.A. Hart, The Concept of Law ([1961] 1994), Christopher Kutz, On Visibility and Secrecy in International Criminal

5 172 (2010) 35 Australian Journal of Legal Philosophy the search for common values is difficult in view of the sharp differences between legal systems.* 21 In her plea to focus on the telos of the rule of law and to take into account the complexities of different situations, Charlesworth draws support from Martin Krygier.22 Krygier has also contributed to the volume under review and the two chapters Charlesworth5s and Krygier5s are remarkably similar. One of the main differences, however, is that Krygier is more attentive to the resonance of the Hart-Fuller debate, discussing in particular how the debate is relevant to the rule of law in transitional societies. While Krygier is more sympathetic to Fuller s ideas especially Fuller s concern not just for conceptual matters, like Hart, but also for the context and legal institutions necessary to achieve the purpose of law s enterprise, the enterprise of subjecting human conduct to the governance of rules 23 Krygier argues that Fuller, despite understanding the importance of context, was altogether richer in assumption and assertion than in evidence.24 The differences between transitional societies, differences perhaps unpalatable to Western legal philosophy, should matter to law and philosophy, Krygier believes, and Fuller is unable to offer any guidance. A theory is needed that will acknowledge that the rule of law is worth a great deal, but that is also attentive to the particular and exceptional circumstances of societies in transition. Krygier explains his own view: I prefer a view of the rule of law that seeks to capture both what is universal and what is particular in it. This view begins with teleology, as does Fuller s, but resists... his suggestion that the rule of law is to be found in legal rules with a particular set of formal characteristics. Instead, the starting point is a generally valuable state of affairs, in the light of which one can appraise particular institutional recommendations for achieving it. These, however, unlike the ideal itself, are likely to be subject to considerable variation.25 Krygier is surely right to note that the means are more contingent than the ends,26 but he does not fully appreciate that the telos of the rule of law will Law, above n 3, Ibid Ibid See Martin Krygier, The Rule of Law: Legality, Teleology, Sociology in Gianluigi Palombella and Neil Walker (eds), Relocating the Rule of Law (2008). 23 Lon L. Fuller, The Morality of Law (1964), Martin Krygier, The Hart-Fuller Debate, Transitional Societies and the Rule of Law, above n 3, Ibid Ibid 131.

6 Book Reviews 173 also be subject to considerable variation between different contexts that is, the purpose of rule of law cannot stand outside politics. Jeremy Waldron speculates about how Hart and Fuller might have responded to modem debates on legal pluralism a topic which was also not considered in the original exchange, though forgivably.27 Most theorists, Waldron argues, make the simplistic assumption that Hart s jurisprudence, unlike Fuller s, could not accommodate legal pluralism, in the sense of several legal systems within a single state. This assumption rests on the careless characterisation of Hart s jurisprudence as 'top-down and therefore unable to accommodate legal pluralism s premise of conflicting legal systems.28 Instead, because of Hart s focus on customary practice rather than sovereignty, Waldron claims that, 'with a bit of pushing and shoving... Hart s jurisprudence is reasonably accommodating to the blurrings and hesitations that modem legal pluralism involves.29 That said, customs will be subject to the legal system s rule of recognition, with the result that some customs notably those forming part of positive morality30 will not have legal status. But Hart did recognise, like the pluralists, the existence of multiple normative orderings. Fuller s jurisprudence, in Waldron s view, was less accommodating of legal pluralism, because it demanded a state to have a common legal order for all its citizens.31 The requirements of the inner morality of law generality, legal equality, non-contradiction were hostile to pluralism. Waldron s argument is persuasive, but one could criticise him for not going further in demonstrating the compatibility of positivism and legal pluralism. The possibility of legal pluralism is not just acknowledged in Hart s emphasis on customary practice, but also in Bentham s theory of sovereignty.32 The existence of legal pluralism, as Margaret Davies argues in her response to Waldron s chapter, is not a purely descriptive matter because it will depend on a definition of law and definitions of law always rely on normative considerations. 'An understanding of "law, she argues, 'that harnesses society to the state and operates exclusively over a geopolitical Jeremy Waldron, Legal Pluralism and the Contrast Between Hart s Jurisprudence and Fuller s, above n 3. See, e.g., Nick Barber, The Rechtsstaat and the Rule of Law (2003) 53 University of Toronto Law Journal 443. Waldron, above n 3, 141,43. Waldron is justified in finding irritating Hart s failure to adopt a pluralistic view of morality. Lon L. Fuller, The Law s Precarious Hold on Life ( ) 3 Georgia Law Review 530, 542. See Jeremy Bentham (J. H. Bums and H. L. A. Hart (eds.)), A Comment on the Commentaries and A Fragment on Government (1977), 432,489.

7 174 (2010) 35 Australian Journal of Legal Philosophy terrain, forecloses the possibility of legal pluralism.33 This is not a persuasive argument against Waldron. After all, it is surely possible to look at a society and ask: what actually happens? If the state does in fact step in to enforce the law of the state against the law of, say, a religious community, then it is clear that the society does not in fact have legal pluralism, and vice versa. The question is then whether a particular legal philosophy can accommodate such pluralism, the question which Waldron addresses. In his chapter, Leslie Green defends an instrumentalist thesis about law,34 according to which, in Hans Kelsen s words, Taw is a means, a specific social means, not an end.35 This thesis was accepted by Hart and was viewed by Fuller to be at the heart of their disagreement. As well as the opportunity to revisit the Hart-Fuller debate, another impetus for Green s defence is Brian Tamanaha s recent criticisms of the instrumentalist thesis. Legal instrumentalists, Tamanaha writes, view law as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends.36 This, Green replies, is an incorrect description of the instrumentalist thesis and confuses it with selfishness. The basic question is this: what makes law distinctive its means or its ends? According to the instrumentalist thesis, Taw can only be identified by focusing on its (species-typical) means rather than on its ends.37 This thesis is distinctive from positivism because it does not entail the requirement that the means must be an artefact. Green refutes what he sees as five fallacies about the instrumentalist thesis: that, being an instrument, law can have no noninstrumental value; that law always has instrumental value; that there is a generic end that law necessarily serves; that law is a neutral instrument; and that law is subject only to instrumental evaluation, that is, that the ends justifies the means. All of these are erroneous understandings of the instrumentalist thesis, Green claims, and while his chapter is not offered as a proof, he hopes that his refutations of the fallacies will make it easier to accept the thesis. One of the difficulties with Fuller s view of law, however, is that he sometimes treats as the end of law what everyone else counts as its species-typical means: ie the guidance of human action by norms, rules or principles of a particular sort.38 Margaret Davies, The Politics of Defining Law, above n 3, 159. Leslie Green, Law as Means, above n 3, 170. Hans Kelsen (A Wedberg tr.), General Theory of Law and State (1949), 20. Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006), 1. Green, above n 3, 173. Ibid 183.

8 Book Reviews 175 By taking an approach to legal interpretation that draws heavily on literary theory, Desmond Manderson uses Henry James s novel The Turn of the Screw as a metaphor through which to argue that the visions of law presented in the Hart-Fuller debate are incommensurable.39 His chapter is an interesting one, if not always compelling. In reading the Hart-Fuller debate, Manderson claims, we experience an oscillation from one incommensurable language and approach to the other.40 This corresponds with law s requirement to oscillate between textual and ethical fidelity. The debate s oscillation is summarised like this: Hart s positivism fails to establish the reality of law which is its sole goal, while Fuller s morality constantly falls back on positivism to establish the ethics of law which it its sole goal.41 Manderson insists that there is equally a reversal of positions in Hart s attempt to protect the core of certainty from the moral, extra-legal reasoning of the penumbra. At this point Hart and Fuller begin to swap positions before our eyes. Hart looks like the prophet of uncertainty, conceding that in these grey areas judges might be guided by the morality of law, or by something (anything) else. On the other hand, it is Fuller who attempts to bring legality back to every part of law, insisting that interpretation in core and penumbra alike are guided by knowable practices of legal reasoning.42 This seems to be less an explanation of Hart and Fuller swapping positions and more a simple statement of their respective positions. Far from being incommensurable, Ngaire Naffine responds to Manderson, Hart and Fuller are actually very similar, sharing as they did the assumption that there is a commonly understood notion of what morality is.43 Hart and Fuller, she argues, [b]oth have difficulty envisaging truly alien ways of thinking, the truly incommensurable,44 largely because of their shared backgrounds. Naffine, however, does not adequately address Fuller s remark which she mentions, but quickly brushes aside that he thought Hart used the term morality to stand indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law.45 Clearly, Fuller recognised that there was not a common notion of morality. Desmond Manderson, Two Turns of the Screw, above n Ibid Ibid Ibid 204 (emphasis in original) Ngaire Naffine, The Common Discourse of Hart and Fuller, above n 3. Ibid Fuller, above n 1, 635.

9 176 (2010) 35 Australian Journal of Legal Philosophy The issue of standards for behaviour is addressed in Philip Pettit s chapter. More particularly, Pettit addresses the question of the normnormative gap : how do some norms, which have arisen on a naturalistic, prudential basis, assume a normative, more-than-prudential status? Focusing on the particular norm of honesty, Pettit argues (not very convincingly) that the norm will become normative when there is a practice of commitment and censure: once people begin to think of being committed to honest communication, and being subject to censure for dishonesty, the norm assumes a normative status for them.46 Although Richard McAdams, in his response to Pettit, suggests an alternative way to bridge the norm-normative gap, he nevertheless believes that Pettit has identified an important problem, although he believes the gap is narrower than Pettit thinks. However, perhaps there is really no problem here at all. For, according to Pettit, what makes a norm a norm as distinct from a mere behavioural regularity is that [pjeople give acceptance or approval to those who conform with the regularities and/or reject or disapprove of those who deviate.47 The normative element of the norm the ought, the standard for behaviour seems to be intrinsic to the definition of a norm as something giving rise to approval or disapproval. McAdams turns Pettit s question around and asks not how the norm-normative gap is bridged, but how we explain the exceptional cases where the gap persists.48 Can we not go further and doubt whether there is really any gap at all, whether there are any purely prudential, non-normative norms? Perhaps it is better to view prudence as one ground of normativity: we ought to do such and such because it is prudent. But there will be other grounds of normativity ethical and moral, for example that compete with prudence. The outcome of this competition between the various grounds of normativity is not something that is conducive to a general and abstract theory and is the subject of often acute disagreement. As Gerald Postema reminds us in his contribution, Hart s main concern in his Holmes lecture was to answer the challenge from the American legal realists.49 In particular, Hart sought to protect the settled core of law from the kind of reasoning characteristic of the penumbra. The failure of legal realists to draw a distinction between the core and the penumbra, thus treating all cases as penumbral, had led them to a deeply sceptical attitude towards legal determinacy and to the conclusion that judicial reasoning is unavoidably arbitrary. Postema agrees with Hart s 46 Philip Pettit, How Norms Become Normative, above n 3, Ibid Richard H. McAdams, Resentment, Excuse and Norms, above n 3, Gerald J. Postema, Positivism and the Separation of Realists from their Scepticism: Normative Guidance, the Rule of Law and Legal Reasoning, above n 3.

10 Book Reviews 177 dismissal of the realist s scepticism, but he thinks that Hart concedes too much to the realists by agreeing that reasoning (at least in the penumbra) entails a choice. Of course, unlike the realists, he did not regard that choice as arbitrary, because any choice is constrained by precedent-based reasoning. Hart s reasons for protecting the settled core namely, clarity and the separation thesis are derived from what Postema calls his settled-meaning positivism,50 according to which only the settled core of law s norms can be included within the definition of law. Postema regards this definition of law as untenable. Given that, for Hart (and Fuller), law s distinctive task is to provide effective guidance for human conduct, Postema claims that it is wrong to think that individuals do not take guidance from judicial reasoning as a whole. Thus, the penumbra should also be described as law. Postema s critique here is persuasive. But Postema then claims that Hart s assumptions about the role of law that it provides normative guidance are closer to the common-law tradition of his challengers than to the positivist tradition of his intellectual forbears and disciples. However, because he viewed law as an authoritative direction, Hart failed to appreciate three ways in which law can fulfil its task of providing normative guidance through publicity, reciprocity, and a practice of public practical reasoning. This jump from Hart s jurisprudence to common-law jurisprudence is problematic, for, as Brian Bix argues, it is far from clear that this critique can then ground a theory of the nature of law.51 Hart s concept of law seems neither to depend on a theory of legal reasoning nor to entail one.52 Nevertheless, Postema makes the leap and attempts to show how Hart s assumptions can lead to a view congenial to the likes of Fuller. Of considerable importance for normative guidance, he argues, is the determination of law publicly and by argument in a framework and forum dedicated to deliberative assessment in public of competing understandings of the law.53 By contrast to rule with law, the (ideal of the) rule of law requires constraints on arbitrary (that is, unaccountable) power and depends on a commitment to the rule of law described as fidelity to law by Fuller and as a culture of legality by David Dyzenhaus. This commitment, Postema argues, is not a matter of holding oneself to some course of action, but rather a matter of being held to some standard of behaviour.54 Those who preserve the rule of law the judges are, he insists, subject to 50 Ibid Brian Bix, Legal Reasoning, the Rule of Law and Legal Theory, above n 3, Ibid Postema, above n 3, Ibid 277 (emphasis in original).

11 178 (2010) 35 Australian Journal of Legal Philosophy accountability in the wider community.55 But political accountability and democracy are left in the background and one is reminded of Robert Unger s remark that a discomfort with democracy is one of the dirty little secrets of contemporary jurisprudence.56 James A. Grant (Faculty of Law, Cambridge University) Ibid 278. Robert Unger, What Should Legal Analysis Become? (1996), 72.