Hart versus Fuller

Imagine a referee who keeps the rules of the match secret, changes them at half-time, applies them to fouls committed before the change, and awards goals whether or not the ball crossed the line. Is this still football, only badly run? Or has it stopped being football at all? Hart says it is still a game with rules, and whether to keep playing is a separate question. Fuller says a game run like that is no longer governed by rules, and so is not really the game. Replace football with law and you have the Hart-Fuller debate. For the wider relation of law and morality, see Notes 20 and 55.

Figure: Fuller's eight principles of the inner morality of law, with Fuller's claim that they are a morality internal to law and Hart's reply that they are principles of efficacy, like a poisoner's craft

1. The Setting

Hart delivered 'Positivism and the Separation of Law and Morals' as the Holmes Lecture at Harvard and published it in 71 Harvard Law Review (1958). Fuller's reply, 'Positivism and Fidelity to Law: A Reply to Professor Hart', appeared in the same volume. Fuller developed his view in The Morality of Law (1964), which Hart reviewed in the Harvard Law Review in 1965; Fuller answered his critics in a revised edition (1969). Three topics ran through the exchange: the separation of law and morals, the Nazi legacy, and the interpretation of rules.

2. Hart's Case for Separation

Hart defended the positivist insistence, in Austin's words, that the existence of law is one thing and its merit or demerit another. He argued that keeping the two apart does not make positivists servile. On the contrary, it lets us say clearly: this is law, but it is too iniquitous to be obeyed. To say instead that an evil rule is not law blurs the moral question and may encourage the belief that whatever is law is good. In the same lecture Hart introduced the distinction between the core of settled meaning and the penumbra of doubt, with his example of a rule forbidding vehicles in the park: a car is plainly covered; bicycles, roller skates and toy cars are doubtful, and there the judge must choose. Fuller replied that meaning depends on purpose, not on words alone: would a truck used in the war, mounted on a pedestal as a war memorial by local patriots, be a 'vehicle' in the park? The words say yes; the purpose of the rule says no.

3. The Grudge Informer and Radbruch

Hart's real target was Gustav Radbruch, the German jurist who had been a positivist before the war and changed his view after it. In 1946 Radbruch argued that positivism had left German lawyers defenceless against Nazi statutes, and he proposed what is now called the Radbruch formula: statute should normally prevail even if unjust, but where its conflict with justice reaches so intolerable a degree, it must yield to justice as 'false law'. Hart replied that this was the wrong lesson. The honest options were either to let the woman go unpunished, or to punish her under a frankly retrospective statute, openly choosing the lesser of two evils, rather than pretending that the Nazi rule had never been law.

Fuller's position is often misstated. He did not simply say that punishing the informer broke no law. He argued that the perverted Nazi 'statutes', vague, secret, retroactive and applied at will by the regime, lacked the character of law. Therefore the informer could not shelter behind them, and her punishment under the ordinary criminal law that had remained in force was not truly retroactive. For Fuller, a regime that abandons the inner morality of law abandons law itself, so there was no genuine legal order to which she could appeal.

4. Fuller's Inner Morality of Law

Fuller begins The Morality of Law with the distinction between the morality of duty, the basic rules without which an ordered society is impossible (thou shalt not), and the morality of aspiration, the morality of excellence and the fullest realisation of human powers. The inner morality of law is, for the most part, a morality of aspiration: a legal system can meet its demands more or less well. He then tells the allegory of King Rex, a well-meaning monarch who fails to make law in eight different ways: he makes no general rules, keeps them secret, makes them retroactive, writes them obscurely, makes them contradict each other, demands the impossible, changes them constantly, and fails to apply them as announced. Each failure yields one principle of legality. A total failure in any one, said Fuller, does not produce a bad legal system; it produces something that is not a legal system at all. Fuller described his theory as a procedural natural law, concerned with the way rules must be made and administered, not with their substantive content.

5. Hart's Reply

In his 1965 review Hart argued that Fuller's eight principles are principles of efficacy, not of morality. They are the craft of making rules that can guide conduct, and they are compatible with very great iniquity: a regime can publish clear, prospective, general rules of racial persecution. To call them a morality confuses purposive skill with moral goodness. Poisoning, Hart said, also has its principles of good craftsmanship (for example, avoid poisons that make the victim vomit), but no one would call them the inner morality of poisoning. Fuller answered that the analogy fails: poisoning is not an enterprise of governing people through rules they can understand and follow, and respect for legality reflects respect for people as responsible agents. Hart had his own bridge to natural law in The Concept of Law (1961): the minimum content of natural law, rules protecting persons, property and promises that any viable system must have, given facts about human nature. But this is a factual necessity, not a moral test of validity.

6. The Two Compared

7. The Indian Perspective

Fuller's principles are recognisable parts of Indian constitutional law, which shows that his procedural natural law describes real requirements of legality.

8. Evaluation

Hart won the argument that the eight principles are not sufficient for a just legal order: a regime can comply with them and still pursue wicked ends. Joseph Raz, in 'The Rule of Law and its Virtue' (1977), put the point memorably by comparing the rule of law to a sharp knife, whose virtue is efficiency, not goodness. Fuller's defenders reply that the principles still carry moral weight: they treat people as responsible agents who can plan their lives, and a regime bent on terror tends in practice to abandon them, as the Nazi regime did with secret and retroactive decrees.

On the grudge informer, Hart's solution of an open retrospective statute is admired for candour, but critics note that it asks the new State to breach one of Fuller's own principles, non-retroactivity, in order to do justice. Fuller's solution avoids that, but only by denying the character of law to measures that were applied as law for years. Most examiners expect a balanced conclusion: Hart is right that law and morality are conceptually distinct, and Fuller is right that legality itself has a moral value that any decent legal order must respect.

9. Frequently Asked Questions

Q. What was the Hart-Fuller debate about?
A. Whether law and morality are necessarily separate. Hart held that a valid law can be morally wicked, and that clarity on this point helps resistance. Fuller held that law has an inner morality of eight principles, so that a regime that abandons them fails to make law at all.

Q. What did Fuller say about the grudge informer?
A. That the perverted Nazi statutes lacked the character of law, so the informer could not shelter behind them, and her conviction under the ordinary criminal law was not truly retroactive. Hart preferred an openly retrospective statute or no punishment.

Q. Why did Hart say Fuller's principles were not a morality?
A. Because they are conditions of efficacy that any purposive activity has, including poisoning. They are compatible with great iniquity, so meeting them does not make a legal system morally good.

Q. What is the difference between the morality of duty and the morality of aspiration?
A. The morality of duty lays down the basic rules without which an ordered society is impossible. The morality of aspiration concerns excellence and the fullest realisation of human powers. Fuller placed the inner morality of law largely in the morality of aspiration, since a legal system can meet its eight demands more or less well.

See also: Note 9 (natural law), Note 20 (law and morality), Note 55 (natural law versus positivism), Note 40 (rule of law), Note 66 (Hart versus Devlin).