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Fuller on Hart and Nazi law Notes for February 17

Main points
Fuller gave three reasons for rejecting Harts proposed separation of law
and morality. One built on a point about Harts theory: the rule of
recognition, according to Fuller, has to get its force from morality. Fullers
second argument maintains that there is what he calls an internal morality
to law. Finally, he disputes Harts analysis of the Nazi informer case. The
correct analysis, he claimed, relies on there being a connection between law
and morality.
Fuller on the rule of recognition
Fuller notes that the rule of recognition is not derived from any other rule
in Harts system. This is something that Hart acknowledged. Fuller believes
that this is inconsistent with the separation of law and morality. This is, of
course, not something that Hart accepted.
Fullers argument is that laws will only gain respect and deference if
they are thought to be good. Since the rule of recognition is the ultimate
source of law, according to Hart, it has to reflect the moral beliefs of the
society being governed. To put it another way, the rules cant be unfair if
you want people to think that breaking the rules would be unfair.
Hart can point out that there are many systems of rules that work
without any obvious connection with morality. The rules of various games
successfully govern the behavior of people playing those games even though
they do not think those rules are ultimately linked with morality in any way.
Theresa thought that Fuller has a point and that this is a case where
Harts frequent analogies between law and games falls short. People who
play games want to play them. But no one chooses to play belonging to
Elin was less impressed. Dont tyrannies have working legal systems?
They may be objectionable in various ways but they seem capable of
securing their citizens deference even in the face of their bad laws.
The internal morality of law
Fullers second argument is that there is what he calls an internal morality
of law. If hes right, any rules that fail to conform to this morality would fail
to be laws.
To make his point, Fuller asked us to consider a bad monarch who
issues inconsistent, retroactive, and secret rules. He makes the reasonable
point that no one can follow rules like this and concludes that genuine laws
must be consistent, prospective, and public. Thats the internal morality of
Hart, by contrast, would argue that what Fullers points show is that the
bad monarchs laws are stupid. Theres no need to invoke morality.
Its not easy to resolve this dispute because neither author says much
about what they mean by morality. Fuller seems to have a point in that
the bad laws he described are both ineffective and unfair. A state that
strives to make its laws consistent and so on would be more fair and more
effective than one that does not. But its not clear that this means that law
and morality are necessarily linked. Greater fairness may just be a
beneficial side effect of having effective laws.
Nazi laws
Fuller argued that the man wasnt guilty even by the Nazi statutes and that
the relevant statutes were too immoral to count as laws. I said that only the
second argument is interesting for his dispute with Hart since Hart took
issue with the courts reasoning in rejecting the law on moral grounds.
Harts position is that law and morality are different. If laws are
seriously immoral, they shouldnt be followed. Fullers most effective point
here, in my opinion, involves asking how the judges in this case should have
acted. Should they have said that the statute was the law but too immoral to
One thing this brings out is that all the difficulties with morality can
come in through the back door, even on the positivist view. Positivists dont
think that morality is relevant to determining what the law is. But they do
think its relevant to determining what should be done. Its reasonable to
ask exactly what is accomplished by separating law and morality if theres
no separating morality from what should be done.