Hart, Fuller and the Connection between Law and Justice

Hart, Fuller and the Connection between Law and Justice
Author(s): Jennifer Nadler

Source: Law and Philosophy , Jan., 2008, Vol. 27, No. 1 (Jan., 2008), pp. 1-34
Published by: Springer
Stable URL: https://www.jstor.org/stable/27652636
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and
Philosophy
This content downloaded from

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
All use subject to https://about.jstor.org/terms
Law and Philosophy (2007) 27:1-34 ? Springer 2007
DOI 10.1007/sl 0982-007-9010-x
JENNIFER NADLER
HART, FULLER AND THE CONNECTION BETWEEN

LAW AND JUSTICE*
(Accepted 15 March 2007)
In The Concept of Law, Hart writes that the history of legal

theory is a history of "oscillation between extremes."1 At one
extreme are those who treat law as a branch of morality, so
that a law's authority depends on its conformity with moral
principles. At the other extreme are those who espouse the
command and predictive theories of law, the first treating law
as the command of a legally unfettered sovereign, the second
viewing law as a prophecy of what courts will do. In The
Concept of Law, Hart tries to find a middle ground between
these extremes by offering a theory of law that is both positivist
and normative. It is normative in the sense that it tries to offer
an account of legal authority and obligation, but positivist in
the sense that it tries to explain law's normativity in terms of
something other than its substantive morality.
In "Positivism and Fidelity to Law," Fuller wrote that Hart's
recognition of law's normativity meant that the two had found
common ground. They seemed to agree that it is a characteristic
feature of law that it makes certain behaviour obligatory, that its
purpose is to authoritatively guide human conduct. Once we
recognize this, Fuller argued, we have to abandon the idea that
there is no necessary conceptual connection between law and
morality. Famously, Fuller distinguished between two kinds of
morality, one external and one internal to law's purpose. Law, he
said, can achieve its purpose of guiding human conduct whether
* I wish to thank David Dyzenhaus for his support and helpful com
ments on earlier drafts as well as the University of Toronto Faculty of Law
for awarding me a fellowship to develop this project.
1 H.L.A Hart, The Concept of Law (Oxford: Oxford University Press,
1994), p. 8.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
2 JENNIFER NADLER
or not it is substantively just, and so questions of substantive

justice do indeed comprise a morality that is external to law.
Law's internal morality, by contrast, consists of procedural
principles which the law-maker must follow if he hopes to pro
vide rules that can guide human conduct, that is, if he hopes to
provide anything that can be properly called "law." In failing to
recognize this distinction, Fuller argued, positivists had exag
gerated the divide between law and morality.
Accordingly, the disagreement between Hart and Fuller is not
as thoroughgoing as some have supposed, for both denied that a
law's validity depended on its being substantively just. In this
article, however, I want to argue that the so-called debate between
Hart and Fuller masks a deeper and more surprising agreement,
albeit one that emerges only implicitly, that is, from the logical
impetus of their explicit arguments. Implicit in the works of Hart
and Fuller, I will argue, is an agreement on a proposition that is
exactly the converse of the one on which they explicitly agree: that
there is a necessary conceptual connection between law and sub
stantive justice. I will draw out this agreement from the author's
own texts, from Hart's The Concept of Law and Fuller's The
Morality of Law. In particular, I'll try to show how each is logi
cally pushed to this position, and thus forced into equivocation,
by the need to distinguish his own theory of law from the one
from which he wishes to distance himself. In Hart's case, the
opposing theory is Austin's command theory of law; in Fuller's
case, the theory is legal positivism. I'll argue that neither can
maintain the distance from the opposing theory he desires with
out committing himself to a substantive morality of law.
I. THREAT-BACKED ORDER AND NORM
In "Positivism and the Separation of Law and Morals", Hart

argued that although John Austin's account of the nature of
law correctly recognized the independence of law from morals,
it tied this thesis (the separation thesis) to the command theory
of law, which Hart considered mistaken. Hart thought that
Austin's command theory articulated an impoverished
conception of law, and sought to rescue positivism from Aus
tin's error by disentangling the separation thesis from that

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE 3
theory. The Concept of Law thus begins with a now famous

critique of Austin, which runs basically as follows.
Austin, Hart argues, believed that at the foundation of any
legal system is a legally unfettered sovereign. Law is essentially
the sovereign's command - an order backed by a credible threat -
issued to a population who habitually obeys its commander.
Thus for Austin, the existence of a legal system depended on a
combination of the unfettered power of the sovereign and a habit
of obedience in the subject population. But, Hart argues, to
describe a group as having a particular habit is only to describe a
general convergence in the behaviour of its members. The exis
tence of a general habit does not require any person to think of the
behaviour of the group as a whole; each may act for his part
alone.2 But where there is a social rule that requires certain
behaviour, the relationship between the subjects and the rule is
not merely one of habitual obedience. To understand this rela
tionship, we must see that it has both an external and an internal
aspect. From the external point of view - the viewpoint of an
outside observer - the behaviour of the group may simply appear
convergent as in the statement "people have a habit of stopping at
red lights." The internal point of view, by contrast, refers to the
significance the rule has for the members of the group; it is
exemplified in the statement "the red light is a signal that we must
stop." The internal point of view illuminates the normative
character of rules; it shows that the members of the group accept
the rules as standards of behaviour for the group as a whole. They
treat the rules, and not merely the attached sanctions, as reasons
for action. This attitude of acceptance toward rules manifests
itself in criticism for deviation from them and in the acknowl
edged legitimacy of such criticism. It is reflected in normative
words such as "must" and "ought" that are associated with
rules.3 According to Hart, it is this normative aspect of rules that
distinguishes them from mere habits.
Now, in every society there are some rules that are viewed,
not merely as appropriate standards of behaviour, but
rather as obligatory ones. These rules Hart refers to as the
2 Ibid., p. 56.
3 Ibid., p. 57.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
4 JENNIFER NADLER
primary rules of obligation. In a primitive society united by ties

of "kinship, common sentiment, and belief", Hart argues, so
cial control may be effected through primary rules of obligation
alone.4 In a small, simple and tightly knit community, people
will know which rules are viewed by the group as standards of
behaviour for the community as a whole. In modern society,
however, social control requires something more than primary
rules of obligation; it requires a secondary rule - a rule of
recognition - that authoritatively identifies the primary rules as
obligatory rules of the legal system by specifying "some feature
or features possession of which by a suggested rule is taken as a
conclusive affirmative indication that it is a rule of the group to
be supported by the social pressure it exerts."5
Hart's discussion of the internal point of view paves the way
for his thesis that what lies at the foundation of every legal
system is not the sheer power of a legally unfettered sovereign
but rather a rule of recognition. This rule is the prior and
ultimate rule of the legal system in the sense that there is no
other rule that provides criteria for assessing its legal validity.
As the ultimate rule of the legal system, the rule of recognition
cannot derive its authority from its conformity with a prior rule
or from the power of the law-giver. The authority of the rule of
recognition must derive from its own normative force, that is,
from its being accepted as the authoritative rule for identifying
the primary rules of obligation.6 In other words, the rule of
recognition must be supported by the internal point of view.
II. TWO INTERPRETATIONS OF THE INTERNAL VIEWPOINT
Hart's expository clarity in The Concept of Law masks a con

ceptual confusion that I have so far glossed over - a confusion
regarding how the internal point of view is to be understood. In
his text, Hart equivocates between what I will call the empirical
interpretation and the conceptual interpretation of the internal
point of view. The reason for this equivocation, I will suggest, is
that while the conceptual understanding is needed to make
4 Ibid., p. 92.
5 Ibid., p. 94.
6 Hart, The Concept of Law, p. 90.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
sense of Hart's account of rule and obligation and his disagreement

with Austin, this understanding of the internal point of view
undermines the positivist thesis concerning the separation of law
and morality. Conversely, although the empirical interpretation
coheres with Hart's positivism, it renders his account of law's
normativity (and so his critique of Austin) unintelligible.
On the empirical interpretation, Hart's discussion of the
internal point of view leads to the conclusion that, for a social
rule to exist, some people must, as a matter of fact, voluntarily
obey it. Threats alone will not secure obedience, for the law-giver
will need the voluntary co-operation of some members of the
population in order to make his threats credible to those who
will not comply voluntarily. Jeremy Waldron's presentation of
Hart's argument in "All We Like Sheep" is an example of what I
am calling the empirical interpretation. For Waldron, that there
is an internal aspect to the rule of recognition means only that a
legal system "will require the voluntary support and participa
tion of those whose action and energy make social coercion
possible."7 On the empirical interpretation, the rule of recogni
tion need not be accepted by all the members of the subject
population; it need only be accepted by the people necessary to
make it - as a matter of fact - the ultimate test of legal validity.
In other words, it need only be accepted by the officials of the
legal system - legislators, judges, prosecutors, and police.
Why do the officials voluntarily recognize the authority of
the rule of recognition? Waldron suggests that it must be
because they are the beneficiaries of the legal system. Indeed,
when he turns to a discussion of the separation of law and
morals, Hart argues that the voluntary supporters' acceptance
of the rule of recognition may be from any motive whatever:
Not only may vast numbers be coerced by laws which they do not regard as
morally binding, but it is not even true that those who do accept the system
voluntarily, must conceive of themselves as morally bound to do so, though
the system will be most stable when they do so. In fact, their allegiance to
the system may be based on many different considerations: calculations of
7 Jeremy Waldron, 'All We Like Sheep', Canadian Journal of Law and

Jurisprudence 12 (1999): p. 175.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
6 JENNIFER NADLER
long-term interest; disinterested interest in others; an unreflecting inherited

or traditional attitude; or the mere wish to do as others do.8
On the empirical interpretation, then, acceptance of a rule from

the internal point of view does not depend on recognizing the
justice of the rule; it means only that a person has some reason for
thinking that the rule ought to be followed.9 On this account,
Hart's discussion of the internal point of view can be summarized
as follows: a rule exists among a group if and only if the officials of
the system abide by the rule and have some reason for thinking the
rule ought to be obeyed. Therefore, the rule of recognition for the
group is whatever the officials happen to treat in this way. The
result is that the rule of recognition must be understood as a merely
conventional rule, a customary practice among officials, a con
clusion that Hart readily accepts in his Postscript.10
What of the subjects of the legal system? A legal system
requires the officials' voluntarily compliance, but the subjects'
compliance may be, as Waldron points out, "compliance through
fear, or compliance for the sake of some pathetic scrap of reward,
or compliance based on habit, prejudice, ideology or false con
sciousness."1 l In his chapter on law and morals, Hart argues that
coercive power, established through the voluntary support of
some, "may be used to subdue and maintain, in a position of
permanent inferiority, a subject group..."12 For the oppressed,
Hart argues, "there may be nothing in the system to command
their loyalty but only things to fear."13 Thus, on the empirical
account of the internal point of view, there is no reason to sup
pose that Hart's claim that the rule of recognition must be
"accepted" from the internal point of view means that its
8 Ibid., p. 203.
9 Kenneth Winston describes this as Hart's "thin" conception of the
internal point of view, to be contrasted with Fuller's "thick" conception
where acceptance rests on the justificatory power of the rules in Kenneth
I. Winston, Three Models for the Study of Law', in Witteveen and van der
Burg (eds.), Rediscovering Fuller: Essays on Implicit Law and Institutional
Design (Amsterdam: Amsterdam University Press, 1999), pp. 61-62.
11 Waldron, 'AH We Like Sheep', p. 176.
13 Ibid., p. 201.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE J
authority must be capable of justification to the population as a

whole; the rule of recognition may well become a tool of elite
domination.
There can be no doubt that Hart's text provides much support
for the empirical interpretation. Indeed, when he turns to a dis
cussion of the separation of law and morals in the second half of
his book, Hart unequivocally adopts this interpretation of his
earlier discussion of the internal point of view. But while the
empirical interpretation admittedly coheres with Hart's com
mitment to the positivist separation thesis, it also obliterates
every distinction Hart sought to establish when he claimed that
rules and laws - as distinct from habits and commands - have a
normative dimension.
Consider first the effect of the empirical interpretation on the
distinction between habits and rules. On the empirical under
standing of the internal point of view, that viewpoint refers to the
reasons individuals may separately have for voluntarily obeying
the law. But Hart earlier sought to distinguish between habits,
where each obeys for his part alone, and rules, which themselves
provide a common reason for action. On the empirical inter
pretation, it is not the rule that provides the reason for action but
rather the self-interest of those who obey. The empirical inter
pretation does not incorporate the reason-giving function of
rules and, in the absence of the idea that the rule itself creates a
reason for action, voluntary compliance becomes indistinguish
able from merely convergent behaviour, that is, from several
people behaving in a similar way for reasons of their own in
certain kinds of circumstances.14
Once voluntary compliance with a rule begins to look like
merely convergent behaviour, however, it becomes difficult to
understand how rules could possess a normativity that habits
do not. The rule of recognition is supposed to be a rule that the
legal officials are obligated to apply. But if the rule is consti
tuted by a convergent practice accompanied by an individual
attitude toward the rule, what is the source of this obligation? If
this is what rules are, Leslie Green has correctly pointed out, it
is hard to see how they could provide anyone with a reason for

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
8 JENNIFER NADLER
doing anything.15 Margaret Gilbert has pursued an argument

along similar lines: the mere fact that I may regard a particular
behaviour as a standard for all members of a group does not
produce the idea that the members of the group are obligated to
behave in that way.16 Matters do not change even if everyone
happens to agree, since normative authority (unlike power,
perhaps) cannot be a matter of numbers.17 Philip Soper
suggests that the authority of the rule of recognition may rest
on the force of the statement: "that's just the way we do things
around here."18 But what normative force can such a factual
statement have? It is true that the existence of a custom may
provide a person who does not wish to stand out from the
crowd with a reason for conforming, but it is not clear how
such a fact could generate an obligation to conform.19
Accordingly, Hart's introduction of the internal point of
view was meant to unlock the mysteries of the rule of recog
nition's authority, but on the empirical interpretation, that
authority remains inexplicable. Not only is it difficult to
understand why the officials of the legal system treat the rule of
recognition as authoritative; it is equally difficult to understand
why the subject population would treat it as authoritative, that
is, why they would acknowledge an obligation to obey the rules
that the rule of recognition identifies as obligatory. Thus, it is
not surprising that Waldron, whose only conception of the
15 Leslie Green, 'Positivism and Conventionalism', Canadian Journal of

Law and Jurisprudence 12 (1999): p. 38.
16 Margaret Gilbert, 'Social Rules: Some Problems for Hart's Account
and an Alternative Proposal', Law and Philosophy 18 (1999): p. 156.
17 Ibid., p. 158.
18 Philip Soper, Two Puzzles from the Postscript', Legal Theory 4 (1998):
p. 377.
19 In Positive Law and Objective Values (Oxford: Clarendon Press, 2001),
Andrei Marmor tries to salvage the obligatoriness of a conventional rule by
treating it as conditionally obligatory: if you want to be a judge, then you
have to apply the rule of recognition because that is what it means to be a
judge. The difficulty, I think, is that if the rule of recognition is to remain the
prior and ultimate rule of the legal system, the rule defining the judge's role
must derive its authority from the rule of recognition. We thus cannot
explain the force of even the conditional obligation unless we explain the
normative authority of the rule of recognition.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
internal point of view is the empirical one, would conclude: "To

put it bluntly, it is a consequence - and I think an obvious
consequence - of Hart's account that there is no general obli
gation to obey the law."20 Waldron is led to this conclusion
because his account of the internal point of view explains
obedience to law in terms of fear and rewards, and it is clear
that incentives cannot get us to the idea of obligation. Hart
himself distinguishes between having an obligation to do
something and being obliged to do something. When we say
that someone was obliged to do something - for example, that a
victim was obliged to hand over his money to a gunman - we
mean only that he thought unpleasant consequences would
result if he refused and so chose to hand over the money.21 We
mean something very different, however, when we say that
someone had an obligation to do something. Most importantly,
neither fear of consequences nor anticipation of reward play a
role in our assessment of obligation, whereas they are sufficient
for the statement that someone was obliged to do something.
On the empirical interpretation of the internal point of view, it
makes sense to say only that people are "obliged" to obey the
law; for both the victims and the beneficiaries of the legal
system obey the law because obedience coincides with their
self-interest.
All this turns Hart's internal point of view into a very minor
modification of Austin's command theory. Sovereign com
manders will require the voluntary support of some of their
subjects if their commands are to be effective. It is not at all
clear how this fact can account for the difference between laws
and orders backed by threats, for it just means that the orders
will have to be executed by a small army in order to be effective
and that the members of that army will have to benefit from the
legal system. From the subjects' point of view, the legal system
is nothing other than a coercive order22, the "gunman situation
writ large," the very thing Hart insisted a legal system was not.
The subjects who are oppressed by the laws may be "obliged"
20 Jeremy Waldron, 'All We Like Sheep', p. 184.
21 Ibid., p. 82.
22 Roger Shiner, Norm and Nature: The Movements of Legal Thought
(Oxford: Clarendon Press, 1992), p. 182.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
10 JENNIFER NADLER
to obey them, but only in the way we might say that the gun
man's victim is "obliged" to hand over the money; indeed, Hart
acknowledges that the law offers them nothing that can com
mand their loyalty. Yet in The Concept of Law, Hart is critical
of Austin chiefly for failing to account for the way in which law
gives rise to obligation. Indeed, Hart argues that "[t]he most
prominent general feature of law at all times and places is that
its existence means that certain kinds of human conduct are no
longer optional, but in some sense obligatory."23 Moreover,
Hart argues that "the internal point of view is required for the
analysis of the basic concepts of obligation and duty,"24 a
passage that suggests that any interpretation of the internal
point of view that renders the concept of obligation unintelli
gible has failed to illuminate fully Hart's own understanding of
what the internal viewpoint means for law.
Accordingly, I will now argue for a second interpretation of
the internal point of view, one that tries to make sense of Hart's
insistence that the internal point of view is not a mere feeling
and that legal rules have a normative character, providing
reasons for action and giving rise to obligations to obey them. I
do not want to suggest that this interpretation can adequately
account for every aspect of The Concept of Law either. My
argument is only that a careful reading of Hart's work shows
that, although he claims to present his readers with a single
articulation of the "concept of law", he actually vacillates
between two essentially different theories. Central to the
concept of law, argues Hart, is the internal point of view. But
this idea admits of two vastly different interpretations, one of
which, we have seen, effaces every distinction Hart sought to
maintain against Austin. Thus, although it is the one that Hart
ultimately seems to have adopted, it cannot be the one he in
tended, assuming he intended his theory of law to be non-triv
ially different from Austin's. What, then, is the other possibility?
It is that the internal point of view describes a conceptual rather
than an empirical relationship between law and subject, and
I will refer to the second interpretation of the internal point of

24 Ibid., p. 98.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE 1 1
view as the conceptual understanding. On this view, the internal

standpoint does not describe a feeling or subjective attitude of
the legal subject; it describes, rather, a feature of law.
The conceptual understanding is not only rationally imput
able to Hart given what he says against Austin. In at least two
places, he himself gives us reason to think that the internal
point of view is to be understood conceptually. First, Hart is
critical of Austin's terminology in referring to an order backed
by force alone as a "command." Implicit in the idea of a
command, Hart argues, is the concept of authority, and
authority appeals, not to fear of harm, but to respect. Hart
argues that in this sense - in the sense of an appeal to respect - a
command is much more akin to law than to the gunman's
coercive orders.25 The idea that law makes an appeal to the
respect of the legal subject and so concerns itself with what the
legal subject can respect is nowhere present in the empirical
understanding of law's internal dimension.
Second, while the empirical interpretation treats the internal
viewpoint as an individual feeling or attitude toward the rule in
question, Hart insists that the internal point of view is neither
"individual" nor a "feeling." Obligation, he argues, is some
thing more than "our own powerful 'feelings' of compulsion to
behave in accordance with the rule and to act against those who
do not."26 This insistence is the key to working out a second
interpretation of the internal viewpoint, one that does not treat
it as the personal viewpoint of any particular individual. What
can the internal point of view be if it is not a mere individual
"feeling of compulsion"? One possibility is suggested by Hart
when he describes the normativity of legal rules not only with
reference to the "internal point of view" but also with reference
to the "internal aspect of rules" and to the fact that rules have
an "internal dimension." This terminology suggests that the
normativity of legal rules does not reside entirely in the minds
of the legal subjects, that the internal point of view describes a
feature of the rules themselves.
25 Ibid., p. 20.
26 Ibid., p. 11.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
12 JENNIFER NADLER
Gerald Postema distinguishes between personal and logical

perspectives. A logical perspective, he argues, is shaped by the
idea of a rational free agent but is not the personal perspective
of any single agent.27 The conceptual interpretation of the
internal point of view treats that viewpoint as a logical
perspective rather than a personal one. The conceptual under
standing says that a rule, to be a rule, must be capable of being
embraced from the internal viewpoint; it must be acceptable as
an obligatory standard of behaviour. If the difference between a
rule and a threat-backed order is that a rule is supported by the
internal point of view, then rules, in order to be rules, must be
capable of being embraced from that viewpoint. Accordingly,
the shift from a personal to a logical perspective is important
because it reveals a ground where authority and normativity
become possible. Authority cannot emerge from the coinci
dental convergence of attitudes toward a particular rule.
Rather, it is an essential feature of legal rules that they claim to
be authoritative and so must be concerned with their accept
ability as authoritative to all those they purport to bind.
It might be objected, however, that if the conceptual
understanding demands that laws be acceptable as obligatory
to all those they purport to bind, then it makes irrelevant Hart's
distinction between officials and subjects and so cannot be the
interpretation Hart meant, even equivocally. After all, the key
to making the internal aspect of rules cohere with the positivist
separation thesis is Hart's admission that the internal point of
view may be limited to the officials of the legal system.
Positivists seize on this suggestion and show that while a legal
system's existence requires some to adopt the internal point of
view, this is perfectly compatible with the oppression of those
who need not share this viewpoint. Indeed, Hart's argument is
that "though a society to be viable must offer some of its
members a system of mutual forebearances, it need not,
unfortunately, offer them to all."28 It is clear, however, that on
the conceptual understanding of the internal standpoint, the
27 Gerald Postema, 'Jurisprudence as Practical Philosophy', Legal Theory

4 (1998): p. 344.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE ] 3
rule of recognition must be capable of being recognized as

authoritative by all those it binds; there is no reason, on this
view, for limiting acceptability to officials. If the distinction
between law and threat-backed order, between authority and
brute power, is to be maintained, the rule of recognition must
be capable of acceptance by all who are subject to it; for if the
authority of the rule of recognition could not be accepted by the
subjects, then the law-giver would rule, not on the basis of an
acceptable claim to rule, but on the basis of threats alone. Laws
would then become indistinguishable from Austinian com
mands even if they are something else for the officials.
How, then, can the conceptual understanding of the internal
dimension be squared with Hart's statement that only the officials
of a legal system need accept the rule of recognition and that it is
sufficient if the subjects' relationship to the law is one of mere
obedience rather than acceptance? A reconciliation is possible so
long as we do not conflate Hart's discussion of the nature of rules
with his discussion of what it means for a rule to exist as a rule of a
particular system. On Hart's account, it suffices for the existence
of a legal rule that the officials treat it as a rule of the system. But
this criterion tells us nothing about the nature of legal rules; it
does not tell us what distinguishes a legal rule from a threat
backed order or what distinguishes a legal system from the
gunman who demands money from his victim. As Leslie Green
argues, the existence conditions for rules do not tell us everything
about the nature of rules "any more than a litmus test for the
presence of acid will tell us much about what acids are."29
The conceptual interpretation of the internal point of view
does not merely tell us what it means for a rule to exist as a rule
of a legal system; it also provides a way of understanding the
nature of legal rules. The idea of the conceptual interpretation
is that law must be such that it can give rise to an obligation to
obey it; it must be capable of acceptance by all those who are
bound by it. If it is not capable of acceptance, then it is a fiat of
power - a threat-backed command. If we distinguish the ques
tion of what it means for a rule to exist as a rule of a particular
29 Leslie Green, The Concept of Law Revisited', Michigan Law Review 94

(1996): p. 1694.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
14 JENNIFER NADLER
system from the question of what it means to be a rule, Hart may

be interpreted as saying that, while the rule of recognition must
be acceptable - that is, conceptually acceptable - to all those it
purports to bind in order to claim authority, it need only be
accepted - as a matter of empirical fact - by the officials in order
to exist as an authoritative rule of the legal system.
III. WHAT ACCEPTABILITY REQUIRES OF LAW
What makes a rule acceptable as an obligatory standard of

behaviour? In the Postscript to The Concept of Law, Hart
argues that acceptance of law's authority need not be based on
the law's moral justification, that acceptance may be "out of
deference to tradition or the wish to identify with others or the
belief that society knows best what is to the advantage of
individuals."30 The difficulty is that these reasons for accep
tance describe a merely personal relationship between a par
ticular legal subject and the rule in question, the very kind of
relationship Hart earlier rejected as explaining obligation. But
if, as I have argued, the internal point of view describes a fea
ture of rules rather than a personal attitude toward them, then
acceptance must refer to a conceptual rather than a personal
relationship between legal subject and legal rule. Moreover, the
result of treating acceptance as a purely personal matter is that
the rule's authority becomes a matter of coincidence, the chance
that various individual attitudes towards a rule will converge.
This, however, is inconsistent with the idea that legal rules
claim to be authoritative, that they purport to provide a
common reason for action for everyone.
Hart offers a different account of what makes a rule
acceptable, one that emerges implicitly from his discussion of
social obligation and the transition from pre-legal to legal
society. When he discusses social obligation, Hart argues that
the seriousness of the social pressure supporting the rules is the
primary factor for determining whether they are thought of as
giving rise to obligations.31 At first sight, this may seem difficult
to reconcile with Hart's distinction between being obliged and
31 Ibid., p. 87.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE 1 5
being obligated. After all, both social pressure and the com
mander's threats are external impositions on the individual that
threaten unpleasant consequences for disobedience, and so it is
hard to understand why social pressure can give rise to obli
gation where threats cannot. The source of obligation must be
found in the reason for the social pressure, which Hart also
mentions, although only briefly. "The rules supported by this
serious pressure are thought important," he writes, "because
they are believed to be necessary to the maintenance of social
life or some highly prized feature of it."32 Here we have a
suggestion that a law's acceptability - and so its giving rise to
obligation - must have something to do with its being necessary
for a life in common or for preserving commonly valued fea
tures of that life. This suggestion is developed further in Hart's
discussion of pre-legal society. There are, Hart argues, primitive
communities where social control is achieved only by a "general
attitude of the group towards its own standard modes of
behaviour."33 These primitive communities have only primary
rules of obligation, and the efficacy of such rules in controlling
the behaviour of the group is dependent on the fact that these
rules are accepted by the group as rules that ought to be obeyed
by everyone. In such a society, Hart argues, the requirements of
common life will shape the content of the primary rules. The ac
cepted rules will tend to be directed against violence, theft, and
deception and may impose duties on individuals requiring them to
contribute to the common life of the society.34 In other words, in a
society consisting only of primary rules, those rules will have to be
recognized by the community as serving common values because it
is their doing so that will give rise to the obligation to obey.
As Hart argues, only a small community united by "ties of
kinship, common sentiment, and belief could live by such a
regime of unofficial but commonly accepted rules.35 In the
absence of such ties, a rule of recognition is required, and the
introduction of such a rule marks the transition from a pre
32 Ibid., p. 187.
33 Ibid., p. 91.
34 Ibid., p. 91.
35 M, p. 92.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
16 JENNIFER NADLER
legal to a legal world. Once the rule of recognition is in place,

the term "validity," which had no meaning in pre-legal society,
takes on significance; we can say that a law is "valid" if it meets
the criteria of legality set out in the authoritative rule of rec
ognition.37 But if we want to make intelligible this transition
from pre-legal to legal society, we cannot allow the concept of
validity to replace service to common values in explaining
obligation, for the rule of recognition was meant only to sup
plement the pre-legal world by providing a way of recognizing
authoritative rules when common sentiments no longer serve.
In other words, it is not clear why, human beings remaining the
same, the conditions of acceptability should be significantly
transformed in the move from the pre-legal to the legal world.
Thus, we should not suppose that, while in the pre-legal world
service to common values was the condition of acceptance, that
idea no longer has a role to play once the rule of recognition is
introduced. The criteria of legal validity must incorporate the
criteria of acceptability. In the pre-legal society, the acceptance
of a rule as legitimately supported by social pressure depended
on the fact that the rule served a common good. There seems to
be no reason why things should be otherwise in a legal system.
What does it mean for a law to serve common values? This is
something about which reasonable people can disagree and so
we can expect that different societies will incorporate different
criteria into their rules of recognition. But service to common
values has a minimum content about which there can be no
disagreement because this content can be derived, not from a
morality external to law, but from law itself. Hart himself
recognized that the principle "treat like cases alike" was
required by the idea of law, since it seems to flow naturally from
the requirement that laws be general.38 But, Hart argued, "treat
like cases alike" is only a formal principle. Law, according to
Hart, cannot itself "determine what resemblances and differ
ences among individuals the law must recognize if its rules
are to treat like cases alike and so be just."39 But Hart's own
36 Ibid., p. 94.
37 Ibid., p. 95.
38 Ibid., p. 161.
39 Ibid., p. 161.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE \J
presentation of the concept of law suggests that this is not true.

Law itself presupposes an essential characteristic that human
beings share, namely, free agency - the capacity for incorpo
rating external directives into one's own practical reasoning and
thus for obeying those directives spontaneously. While the
notion of free agency and its implications for law is never taken
up in The Concept of Law, in my view it lies buried in the
following comment:
...no society could support the number of officials necessary to secure that
every member of the society was officially and separately informed of every
act which he was required to do. Instead such particularized forms of
control are either exceptional or are ancillary accompaniments or rein
forcements of general forms of direction which do not name, and are not
addressed to, particular individuals, and do not indicate a particular act to
be done.40
Hart argues that it would simply be impracticable to have an

official standing over each individual saying, "do this; don't do
that" for every circumstance that arises, and this is why "gen
eral forms of direction" are needed. But if human beings were
not capable of thought, deliberation, and judgment - if they did
not have a mind of their own - this kind of detailed oversight
would be necessary. The fact that the law-maker can accom
plish his purposes simply by providing a general rule and
allowing individuals to apply the general rule to the particu
larity of their own conduct shows that human beings are agents
rather than machines, for to apply the law to oneself is already
to obey spontaneously. Thus the generality of laws not only
respects free agency; it presupposes it. Law presupposes human
freedom and so too the dignity that flows from that freedom.
This, it would seem, is the essential sameness of human beings
that the law must recognize, not simply to be just, but also to be
law. Respect for human agency is thus required of any law that
claims to serve common values; this respect, we can say, is the
minimum content of any plausible conception of the "com
mon." The question now is whether the idea of spontaneous
obedience, already implicit in Hart's concept of law as requiring
40 Ibid., p. 21.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
18 JENNIFER NADLER
general directions, can lead us to a more robust conception of

what is common and so to a thicker set of requirements for
law's acceptability. For an answer we must turn to Fuller.
IV. FULLER AND THE INTERNAL MORALITY OF LAW
In "Positivism and Fidelity to Law - A Reply to Professor

Hart," Fuller argued that unlike a mere fiat of power or a
"pattern of behaviour discernible in the behaviour of state
officials," law gives rise to an obligation to obey it.41 He then
criticized Hart for failing to give a coherent account of that
obligation.42 In the Morality of Law Fuller offered a theory of
law that is meant to fill this gap.
Law-making, Fuller argued, is a purposive activity: it is the
enterprise of subjecting human conduct to the governance of
rules.43 Law is distinguished from fiats of power and predic
tions of official behaviour because it provides a guide to human
conduct. Law does not stand over the individual telling him
"do this; don't do that" in every circumstance that arises. Law's
purpose is to articulate general rules such that the citizen can
apply them to the particularity of his own conduct. But if law is
to be obeyed freely - freely in the sense that there is no one to
tell the individual what to do at each turn - it must be capable
of being freely obeyed. It must, in other words, be able to figure
in the practical reasoning of citizens. The citizens must be able
to take the law into account when they are shaping their lives.
Once we acknowledge that law in general has a purpose, we can
judge a particular law in light of this purpose by asking whether or
not it could act as a guide for human conduct. This means that law
cannot be made haphazardly; providing guidance for human
conduct is something for which law-makers must plan.44
According to Fuller, in order to produce something that can guide
human conduct and so properly be called law, law-makers must
41 Lon Fuller, 'Positivism and Fidelity to Law?A Reply to Professor

Hart', Harvard Law Review 71 (1958): p. 632.
42 Ibid., p. 632.
43 Lon Fuller, The Morality of Law (New Haven: Yale University Press,
1969), p. 106.
44 Fuller, 'Positivism and Fidelity to Law', p. 642.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE \g
respect eight principles pertaining to the form of enactment. These

principles comprise what Fuller calls law's internal morality. They
comprise a morality because they prescribe what a lawmaker must
do to enact valid law; they comprise an internal morality because
they are required by the purpose of lawmaking itself.
Fuller develops his principles in the form of a famous alle
gory in which a single ruler, Rex, tries to make rules for the
guidance of his subjects. In Fuller's story, Rex fails to make law
despite all his attempts at legislation, and does so in eight dif
ferent ways. First, he fails to make a general rule so that every
case is decided on an ad hoc basis. Rex also fails to make law by
failing to publicize the law, by legislating retroactively, by
failing to make the rules understandable, by enacting contra
dictory rules or rules that require the citizens to do things that
are impossible to do, by introducing a daily stream of amend
ments into the law, and by failing to apply the rules as
announced.45 After each failure, Rex's subjects complain, and
their various complaints amount to the same criticism: Rex has
failed to provide them with anything they can obey.
Fuller's internal morality of law may be interpreted as a
response to legal positivism in two different ways. First, as
T.R.S. Allan suggests, Fuller elaborates his internal morality of
law from the perspective of the law-giver, thus considering law
from the same perspective as the one adopted by the positivists,
particularly Austin.46 The point of the allegory of Rex is to
show positivists that even if we consider law from the per
spective of the law-giver, we will see that there are limits on
what the law-giver can do if he wants his subjects to be able to
obey his orders. Thus, the internal morality of law demon
strates that legislative power is not only legally "limitable" but
also necessarily limited. Accordingly, Fuller's eight principles
may be interpreted as a reply to Hart in the following way.
Whereas Hart (when he adopted the empirical understanding of
law's internal dimension) treated the rule of recognition as
being entirely open to any content whatsoever, Fuller shows
45 Fuller, The Morality of Law, pp. 33-38.

46 T.R.S. Allan, Constitutional Justice (Oxford: Oxford University Press,
2001), p. 53.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
20 JENNIFER NADLER
that this cannot be true. The rule of recognition cannot be, for
example, "whatever the Queen says is law." For if the Queen
fails to pay proper attention to law's internal morality, what she
decrees will not be law.
Second, Fuller's eight principles of legality may be under
stood as a response to positivists because they argue for a
connection between law and morality that is wholly internal
to law. In discovering a morality that is derivable from the
nature of law as a guiding activity, Fuller seemed to have
uncovered a connection between law and morality that is
immune from the positivist charge that such connections
destabilize law by making it the subject of moral controversy.
Disagreements about the nature of justice prompt doubts
about the legitimacy or wisdom of making law's validity turn
on controversial philosophic theories; but the internal moral
ity of law simply emerges from a careful consideration of what
is required in order to make anything that can be properly
called law.
V. THE POSITIVIST RESPONSE TO FULLER
Early in The Concept of Law, Hart himself recognized that the

idea of law constrains the form of legislative decrees; he noted
that Rex will have to pay attention to matters of legal formality if
he wants his subjects to be able to distinguish his private wishes
from orders having official status.47 Indeed, so much has been
made of the Hart/Fuller debate that a reader might be surprised
to discover that Hart does not object to Fuller's suggestion that
the criteria of legal validity are constrained by the eight principles
of legality:
If social control...is to function, the rules must satisfy certain conditions:
they must be intelligible and within the capacity of most to obey, and in
general they must not be retrospective... This means that, for the most part,
those who are eventually punished for breach of the rules will have had the
ability and opportunity to obey...if this is what the necessary connection of
law and morality means, we may accept it.48
47 Hart, The Concpet of Law, p. 68.

48 Ibid., p. 207.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
But, Hart adds, "[i]t is unfortunately compatible with very

great iniquity."49
Positivists, among them Hart and Joseph Raz, have treated
Fuller's internal morality of law as something that can be
readily absorbed by the positivist thesis. Their argument, stated
simply, is just that there is nothing intrinsically moral about the
internal "morality" of law. They argue that while Fuller has
successfully articulated the internal principles of law-making,
he has in no sense established a necessary connection between
law and morals. Hart makes this point with a provocative
example: "Poisoning is no doubt a purposive activity, and
reflections on its purpose may show that it has its internal
principles." Hart suggests "avoid poisons, however lethal, if
their shape, colour, or size is likely to attract notice."50 The
point, of course, is that internal principles are not necessarily
moral; their morality will depend on what these principles are
used to accomplish. Fuller, Hart argues, has confused purpo
sive activity with morality.51 Joseph Raz has developed this line
of argument further. The rule of law, Raz argues, is the "spe
cific excellence of the law."52 The virtue of the rule of law is the
virtue of efficiency in guiding human behaviour regardless of
the purposes of guidance, and efficiency is not a moral virtue.53
Raz's point is that Fuller's principles of legality are simply
principles of effective rule and are therefore only instrumentally
and contingently moral - moral only insofar as the law-makers
use them to pursue moral ends.
One of the ways in which Fuller and his defenders have
responded to this criticism is to deny that the eight principles of
legality can "just as easily" serve morally evil purposes as good
ones. Fuller argues that law is neutral among substantive aims,
but he insists that the procedural internal morality of law has
49 Ibid., p. 207.
50 Hart, 4Lon L. Fuller: The Morality of Law\ in Hart, Essays in
Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983), p. 350.
51 Ibid., p. 350.
52 Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1983),
p. 225.
53 Ibid., p. 226.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
22 JENNIFER NADLER
important consequences for substantive justice.54 There is,

Fuller argues, a "deep affinity between legality and justice."55
For example, acting by a known rule is a precondition for
meaningful assessment of the justice of the laws. The require
ments of legality require publication and clarity and so expose
to public scrutiny the rules of the legal order. This will con
strain the purposes pursued by governments. Law-makers,
Fuller suggests, are reluctant to be open about their injustice,
particularly when they are called upon to justify their actions.56
Colleen Murphy has defended the morality of Fuller's
principles on this basis.57 The rule of law, she argues, sits
uncomfortably with non-democratic rule.58 The fear and
uncertainty that authoritarian regimes rely upon is incompati
ble with the clarity and predictability of punishment that is
required by the rule of law.59 Moreover, the principles of
legality will require an unjust regime to be perfectly open and
candid about its injustice and this will undermine the govern
ment's perceived legitimacy, both in the eyes of its own citizens
and of the international community. Further, Murphy argues,
open declarations of injustice are inconsistent with individuals'
need to maintain their moral identity. Murphy's point is that
while it is logically possible that an evil regime may pursue
iniquitous ends while adhering to the rule of law, it is not a
practical possibility. An authoritarian government may pay
superficial respect to the rule of law, but it is indeed hard to
imagine such a government genuinely concerning itself with the
requirements of legality.
I have doubts about the adequacy of this response to the
positivist claim. After all, the affinity between law and justice
could be accepted by positivists without forcing them to give up
the essential positivist claim that there is no necessary conceptual
connection between law and morality. In response to Hart's
54 Fuller, The Morality of Law, p. 153.

55 Ibid., p. 157.
56 Ibid., pp. 155-159.
57 Murphy, 'Lon Fuller and the Moral Value of the Rule of Law', Law
and Philosophy 24 (2005): p. 239.
58 Ibid., p. 252.
59 Ibid., p. 253.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
contention that his eight principles of legality are compatible with

great injustice, Fuller wrote "...one could not wish for a more
explicit denial of any possible interaction between the internal
and external moralities of law than that contained in this last
sentence."60 But it is, I think, important to notice that Hart is not
denying the possibility of such interaction. He argues only that
such interactions are contingent. Fuller's suggestion that the
principles of legality will tend to pull law toward goodness does
not seem to suggest anything more than this. Fuller's arguments
do not show that law, as law, requires substantive justice; they
merely show that human beings tend to demand moral goodness of
themselves and their governments. Candid expressions of injustice
will often come at a political price. The constraints imposed by the
principles of legality may make substantive injustice less likely and
may therefore illustrate a correlation between law and morality;
but the positivist thesis that must be refuted is that there is no
conceptual connection between law and morality.
VI. LAW'S INTERNAL MORALITY AS RESPECT

FOR SELF-DETERMINATION
When Fuller first introduces the eight principles of law's

internal morality in The Morality of Law, he emphasizes that
legislative neglect of these principles will render the subjects'
attempts at obedience futile.61 But Fuller later develops an idea
that suggests that attention to law's internal morality is
required in order to make law for a much deeper reason. To
respect the internal morality of law, Fuller argues, is to respect
man's dignity as a free agent: "[T]o embark on the enterprise of
subjecting human conduct to the governance of rules/' he
writes, "involves of necessity a commitment to the view that
man is, or can become, a responsible agent, capable of under
standing and following rules, and answerable for his de
faults."62 Law, in other words, recognizes human beings as
agents capable of incorporating general and knowable rules
into their practical reasoning. Departures from the principles of

61 Ibid., p. 39.
62 Ibid., p. 162.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
24 JENNIFER NADLER
legality are affronts to human dignity, because to judge people

by laws that are incapable of figuring in their practical rea
soning is to demonstrate an indifference to their capacity for
spontaneous obedience.
Raz admitted that respect for the internal morality of law is
necessary if the law-giver is to respect human dignity.63 But the
extent of this respect for human dignity will vary depending on
the purposes of the law-giver. If the law-giver enacts laws that
flagrantly disrespect human dignity in their substance, Raz
suggests, it will be absurd to find any connection between law
and morality in his concern for procedure. Does this mean that
Raz is right to argue that Fuller's principles of internal morality
are actually mere principles of efficacy? I don't think so. Fuller,
to be sure, is not entirely unambiguous about this. As T.R.S.
Allan has argued, Fuller's internal morality of law can be
understood from two different perspectives because Fuller
provides two different accounts of the point of his principles of
legality.64 First, the internal morality of law may be understood
from the perspective of the law-giver. From this perspective,
the law's internal morality appeals "to the legislator's pride in
his craft."65 Under the subheading "Legality as a Condition
of Efficacy," for example, Fuller compares his natural laws
of legality to the natural laws of carpentry, the laws that a
carpenter would respect if he wants the house he builds to
remain standing and serve its purpose.66 Moreover, Fuller
writes, "[t]he term "procedural" is...broadly appropriate [to
describe the internal morality of law] as indicating that we are
concerned, not with the substantive aims of legal rules, but with
the ways in which a system of rules for governing human
conduct must be constructed and administered if it is to be
efficacious and at the same time remain what it purports to be
(emphasis added)."67 So Fuller does provide his critics with
some reason for thinking that he was concerned merely with the
63 Raz, The Authority of Law, p. 221.

64 T.R.S. Allan, Constitutional Justice, p. 54.
65 Waldron, 'Why Law?Efficacy, Freedom, or Fidelity?', Law and Phi
losophy 13 (1994): p. 267.
67 Ibid., p. 97.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
principles of effective law-making, an argument that can be

easily subsumed by the positivist thesis.
As I have already argued, adopting the perspective of the law
giver was a rhetorical strategy of Fuller's, for it was an attempt to
refute the positivist theory on its own terms. The problem,
however, was that in ceding the question of perspective, Fuller
seemed to cede the whole argument to the positivists because
perspective was the very issue in dispute. To understand the
nature of law, the question to be asked is not, how can the law
giver successfully control human conduct? Rather, the question
is: what grounds the legal subject's obligation to obey the law?
Fuller's internal morality of law may be viewed as an answer to
this second question. In order to see why the internal morality of
law is in fact a morality, we have to shift our perspective from that
of the law-giver to that of the legal subject.68
A close reading of The Morality of Law reveals that for
Fuller, the internal morality of law instantiates the ideal of
reciprocity and not merely that of efficacy.69 Indeed, to treat
Fuller's principles of legality as principles of efficacy is to ignore
his discussion of reciprocity and the way in which reciprocity
grounds the legal subject's obligation to obey the law. Reci
procity, Fuller argues, is implicit in the notion of duty and is the
principle that gives duty its moral force, thus creating obliga
tion.70 In a legal system, the duty owed by the citizen to the
government is matched by a reciprocal duty owed by the gov
ernment to the citizen. This relationship creates certain
"rightful expectations" on the part of the citizen that the gov
ernment cannot violate without at the same time threatening
the foundation of the citizen's obligation to obey its laws.71 If
the bond of reciprocity is broken, Fuller argues, nothing
remains to ground the citizen's duty to obey the law.72 Legal
obligation is therefore inconsistent with legally unlimited
power. If obligation emerges only from relationships of reci
procity, then reciprocity between law-giver and legal subject
68 T.R.S. Allan, Constitutional Justice, p. 55.
69 David Dyzenhaus, 'Fuller's Novelty', in Rediscovering Fuller, p. 94.
71 Ibid., p. 140.
72 Ibid., p. 40.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
26 JENNIFER NADLER
constrains what the law-giver can do and still make law. This is
why Fuller argues that reciprocity, and not simply efficacious
ness, is the idea that underlies all eight principles of legality.73
In respecting the internal morality of law, Fuller argues,
"[government says to the citizen in effect, These are the rules
we expect you to follow. If you follow them, you have our
assurance that they are the rules that will be applied to your
conduct'."74 The government thus fulfills its obligation to the
citizens by adhering to the principles of legality and in fulfilling
its obligation, grounds the citizens' reciprocal obligation of
obedience. Accordingly, legislative respect for law's internal
morality is properly viewed as a condition of obligation and not
merely a mechanism of effective control.
Once we see that the ideal of reciprocity underlies Fuller's
principles of legality, however, we must ask whether the prin
ciples of legality exhaust that ideal and so whether attention to
the principles of legality is sufficient to ground the citizen's
obligation to obey the law. As I noted in the paragraph above,
Fuller claims that the ideal of reciprocity can be expressed in
the following terms: "Government says to the citizen in effect,
These are the rules we expect you to follow. If you follow them,
you have our assurance that they are the rules that will be
applied to your conduct'."75 Yet Fuller's own understanding of
reciprocity is inadequately captured by this statement, which
seems reducible to "we will give you sufficient warning of what
conduct is to be avoided or performed so that you can avoid
punishment." The problem with this "fair warning" conception
of reciprocity is illuminated by the following example: If a
gunman says to me, 'Your money or your life,' I will of course
expect that if I give him my money, he will spare me. If the
gunman lives up to my expectation, could we conclude that
there is a reciprocal relationship between the gunman and me?
The implausibility of such a conclusion suggests that Fuller
must have a more robust conception of reciprocity than he
explicitly acknowledges in the "fair warning" articulation of the
73 Ibid., p. 61.
74 ft/rf., p. 40.
75 Ibid., p. 40.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
meaning of reciprocity; indeed, it suggests that reciprocity

between government and citizen must depend, at least in part,
on the content of the government's demands.
Such a conception of reciprocity can indeed be found in
Fuller's text. In the first chapter of The Morality of Law, Fuller
notes that "[w]henever an appeal to duty seeks to justify itself, it
does so always in terms of something like the principle of rec
iprocity."76 He then poses the following question: "under what
circumstances does a duty, legal or moral, become most
understandable and most acceptable to those affected by it?"77
Among the suggested circumstances is that "the reciprocal
performances of the parties must in some sense be equal in
value."78 Thus, the moral force of duty emerges not merely
from performances on either side, but from equal performances
on either side. The "element of equivalence," Fuller argues,
appeals to our sense of justice.79 If we consider why this must
be the case, it might be suggested that equal persons can rec
ognize the legitimacy or justice of reciprocal and equal obli
gations because it is in the equality of the exchange that they
are recognized as equals. Thus, if the idea of reciprocity
between ruler and subject grounds the subjects' obligation to
obey the law, we may expect that the idea of equality does so as
well.
This suggestion is confirmed by the distinction Fuller draws
in his "Reply to Critics" between law and managerial control.80
Fuller argues that his debate with the positivists revolves
around the concept of purpose: "to what end is law being so
defined that it cannot "exist" without some minimum respect
for the principles of legality?"81 On the positivist interpretation
of the principles of legality, law and the morality of law are
treated as if their purpose were to realize the goals of those who
hold power. But, according to Fuller, this understanding of
76 Ibid., p. 20.
77 Ibid., p. 23.
78 Ibid., p. 23.
79 Ibid., p. 23.
80 T.R.S. Allan draws our attention to the significance of this section in
Allan, Constitutional Justice, p. 55.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
28 JENNIFER NADLER
law's purpose confuses law with the managerial model of

direction. The two are essentially different even though both
involve the direction of human activity and the subordination
to authority.82 Fuller explains the difference in the following
way:
The directives issued in a managerial context are applied by the subordinate
in order to serve a purpose set by his superior. The law-abiding citizen, on
the other hand, does not apply legal rules to serve specific ends set by the
lawgiver, but rather follows them in the conduct of his own affairs, the
interests he is presumed to serve in following legal rules being those of
society generally.83
Thus, whereas the purpose of managerial direction is the

realization of the personal purposes of a superior, the purpose
of law is the realization of the citizens' goals in a manner
consistent with the interests of "society generally." The posi
tivists, in treating law as serving the purposes of the law-giver,
treat law as though it were an exercise of control by a superior
over an inferior. But, says Fuller, "law is not, like management,
a matter of directing other persons how to accomplish tasks set
by a superior, but is basically a matter of providing the citizenry
with a sound and stable framework for their interaction with
one another."84 The point of Fuller's distinction between law
and managerial control would seem to be that respect for
human freedom is not to be understood as an incidental con
sequence of legality, but rather as the very point of legality. In a
legal system, the subjects do not unilaterally serve the law-giver;
rather, the law-giver serves the legal subjects who, in turn,
recognize an obligation of fidelity to the law-giver. Ruler and
subject are equal; their relationship is fully reciprocal.
I have showed how, in order to distinguish his eight princi
ples of legality from principles of efficacy, Fuller had to
introduce the idea of reciprocity, which in turn implied an idea
of equality between ruler and ruled as opposed to the mana
gerial control of an inferior by a superior. I'll now try to show
how this idea of equality pushes us to an idea of respect for
82 Ibid., p. 207.
83 Ibid., p. 207.
84 Ibid., p. 210.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
autonomy or self-determination as the internal morality of law.

By "autonomy" and "self-determination" I mean, not only the
formal capacity for spontaneity presupposed by the generality
of rules, but also the capacity to act from ends that are them
selves self-chosen.
Fuller's elaboration of the distinction between managerial
direction and law illuminates the reason why the gunman who
gives "fair warning" of consequences does not thereby create a
relationship of reciprocity between himself and his victim. The
relationship between a manager and his subordinates is not
reciprocal because the manager provides his subordinates with
a set of directives for accomplishing his own purposes. The law
giver, on the other hand, fulfills the requirements of reciprocity
when he provides citizens with an intelligible framework within
which they can realize their purposes. We can see that the
gunman was not involved in a reciprocal relationship with his
victim, because although he provided warning of consequences,
his orders nevertheless unilaterally subordinated the victim to
his ends. The gunman's orders may respect the human capacity
to incorporate external directives into one's practical reasoning,
but the worth of this respect depends entirely upon respect for
the wider capacity for self-determination, the capacity to
formulate a conception of the good life and act upon it. Thus,
in order to explain why the relationship of gunman to victim is
not a relationship of reciprocity even if the gunman gives fair
warning, we need to reformulate Fuller's norm of reciprocity in
the following way. Government says to the citizens, "these are
the laws we expect you to obey. You have our word not only
that these are the laws that will be applied to your conduct, but
that these laws are consistent with your status as self-deter
mining human beings."
Reciprocity, Fuller realized, depends on equal performances
and thus characterizes relationships where both parties are
treated as equals. Thus, a relationship of reciprocity between
law and legal subject must be a relationship of mutual respect:
the legal subject respects the authority of law on condition that
the law respects the autonomy of the legal subject by facilitating
his or her pursuit of self-chosen goals. Accordingly, the law's

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
30 JENNIFER NADLER
respect for autonomy is what grounds the obligation of fidelity

to law. Respect for autonomy is, on Fuller's own account, the
real internal morality of law.
VII. TOWARD AN INTERNAL AND SUBSTANTIVE

MORALITY OF LAW
In her defense of Fuller against the objection that his principles

of legality ought to incorporate the requirement of substantive
justice, Colleen Murphy argues that "[Respecting rights is not a
precondition for guiding behaviour. Thus, it is not appropriately
part of the ideal of the rule of law."85 It may be true that
respect for substantive morality is not necessary in order to
simply "guide conduct." But Fuller's reply to the positivist
understanding of his principles as principles of efficacy, par
ticularly his emphasis on the principle of reciprocity and the
distinction between law and managerial control, suggests that a
reformulation of law's purpose is required if Fuller's principles
of legality are to be rescued from the positivist critique. Law's
purpose is not merely to guide human conduct; its purpose is to
guide conduct in a manner that fulfills and respects the human
capacity for self-determination. In seeking to rescue his internal
morality of law from the positivist interpretation, Fuller must
recognize that law's function of guidance is not open-ended but
is rather constrained by a substantive requirement to respect
autonomy.
However, Fuller's final position, it seems, is that substantive
ends can be accomplished procedurally. For example, Fuller
argues that homosexuality should not be criminalized because
"any such law simply cannot be enforced and its existence on
the books would constitute an open invitation to blackmail, so
that there would be a gaping discrepancy between the law as
written and its enforcement in practice."86 Moreover, Fuller
approves of a decision of the Supreme Court of California
where a statute forbidding marriage between a white person
and a person who is "a Negro, mulatto, Mongolian or member
of the Malay race" was held unconstitutional on the grounds
85 Murphy, 'Lon Fuller and the Moral Value of the Rule of Law', p. 262.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE 3 ]
that it did not meet the constitutional requirement that law "be
definite and its meaning ascertainable by those whose rights
and duties are governed thereby."87 The difficulty, however,
with fighting substantively unjust laws with procedural weap
ons alone is that they imply that, in the face of gross injustice,
all judges can legitimately do is instruct the legislature to "try
again" - try, in other words, to accomplish their unjust aims
while adhering to the principles of legality.88
As laws become clearer and more candid about their injus
tice, the less Fuller's principles of legality can accomplish in
realizing law's substantive aims. It is certainly possible to
conceive of laws that conform to Fuller's principles of legality
but that nevertheless violate human autonomy in their sub
stance. It is possible to show respect for the human capacity to
apply general rules to one's own conduct while disdaining the
more general human capacity for self-determination. But in his
distinction between law and managerial control, Fuller
demonstrated that mere respect for the human capacity to obey
rules spontaneously - that is, without having someone stand
over one's shoulder - was not enough to satisfy the purpose of
law. Fuller argued that if law is to remain something other than
a one-way projection of power originating with the law-giver
and imposing itself on the subject, it must be respectful, not
only of the human capacity to incorporate external directives
into practical reasoning, but more importantly, of the capacity
to form life plans of one's own and to execute them in the
world. Thus, law is not a co-operative effort between law-giver
and legal subject for the purpose of realizing the law-giver's
87 Ibid., p. 161.
88 David Dyzenhaus has argued that when confronted with a law that
violates the rule of law, the proper thing for judges to do on Fuller's account
is to declare that legality is compromised. On the procedural conception, the
rule of law triumphs where legislators are forced to make explicit their
intention to operate outside the rule of law. See, for example, Dyzenhaus,
"Aspiring to the Rule of Law', in Campbell, Goldsworthy and Stone (eds.),
Protecting Human Rights: Instruments and Institutions (Oxford: Oxford
University Press, 2003), p. 195. It is my view that if respect for the rule of
law is required to ground the citizens' obligation to obey the law, the leg
islature's violation of the rule of law must be grounds for a declaration of
invalidity.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
32 JENNIFER NADLER
ends; it is a co-operative effort for the purpose of providing a

framework within which citizens can realize their own ends.
This means, however, that orders can violate law's internal
morality in their substance - if they are directed only to the
lawgiver's ends. If law is to remain distinct from a one-way
projection of power, it is clear, first of all, that the law cannot
be set in accordance with the purposes of a single law-maker.
But it is just as clear that the law cannot be set in accordance
with the purposes of a few or even with the purposes of a
majority since these would simply be versions of managerial
control. The number of managers cannot matter: if a majority
injects its purposes into law and imposes its directives on the
minority, we still have a one-way projection of power. Thus, if
law is to be distinguished from managerial control, it seems that
the legal framework must be set in accordance with public
purposes. If a law cannot be justified in terms of a public
purpose, it can be properly criticized as deficient from the
perspective of law.
Fuller would no doubt have been reluctant to draw this
conclusion. The question of what constitutes a legitimate public
purpose is something about which reasonable people might
disagree; and Fuller, like Hart, did not want to make law's
authority vulnerable to moral controversy. But in his first
chapter of The Morality of Law, Fuller rejected the claim that
knowledge of injustice requires perfect knowledge of justice; he
argued that we can know "what is plainly unjust without
committing ourselves to declare with finality what perfect jus
tice would be like."89 The same might be said about the concept
of a public purpose. While there may be differing conceptions
of what constitutes a truly public purpose, we can say with
certainty what any plausible conception of a public purpose
must include.
At least one such requirement is suggested by the idea of law
as developed by Fuller in his response to the positivist's denial
that his principles are moral. Law, Fuller recognized, gives rise
to an obligation to obey it, an obligation that is grounded upon
the law's fulfillment of the principle of reciprocity. I have tried

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
to show (from Fuller's own distinction between law and man

agerial control) that relationships of reciprocity are relation
ships of equality and that relationships of equality are those
which respect autonomy. Thus, if the citizens are to have an
obligation to respect the law, the law must have a corre
sponding obligation to respect their status as self-determining
beings by giving them laws consistent with that status - laws
they could thus recognize as legitimately binding them.
Now there may be many competing views about what
respecting human autonomy means, but if there are some
things on which all such views would agree, then these princi
ples would form a substantive morality that is internal to law.
This could be called a minimum content of respect for auton
omy that is beyond moral controversy. Such a content would
include, for example, a prohibition against laws that allow for
arbitrary deprivations of liberty by officials and laws that imply
the subordinate status of some persons despite their capacity
for autonomy. Respect for liberty and equality thus emerges as
a substantive constraint on law derivable from the very idea of
law.90 They must, in my view, be added to Fuller's principles
comprising law's internal morality.
VIII. CONCLUSION
The Hart/Fuller debate has often been treated as an irrecon

cilable conflict between the positivist camp on the one hand
and the natural law camp on the other. Hart argued that law's
validity in no way depends on its moral content, whereas
Fuller argued that law, to be law, must adhere to certain
moral principles. A close reading of the authors' texts, how
ever, reveals that this gulf is not as great as it first appears.
Indeed, there is much about which Hart and Fuller explicitly
agree. Hart argued only for a separation between law and
substantive morality and did not deny that a successful law
giver would have to be constrained by principles of legal form.
Fuller never argued for a necessary connection between law
90 Of course, much more needs to be said about what constitutes a public
purpose and so about the content of law's substantive internal morality, but
that is beyond the scope of this paper.

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC
34 JENNIFER NADLER
and substantive morality, but only for a set of procedural

principles that could be derived from the activity of law
making. This agreement about the separation of law and
substantive justice appears on the surface of their texts. But
implicit in their works, I have argued, is a deeper agreement.
Hart, in order to distance himself from Austin's command
theory of law, must recognize that law possesses a certain kind
of normativity, that its authority is not to be found in the
sheer power of the law-giver or even in the empirical accep
tance of the law-giver's commands for whatever reason. The
logic of Hart's arguments suggests that law's authority derives
from its acceptability as authoritative. This prompts the
question: on what condition will laws be acceptable as
authoritative to the free persons that law's generality pre
supposes? The germ of the connection between law and
substantive justice can be found in the answer: laws will
be acceptable to free persons only if they respect free agency -
the capacity for incorporating external directives into one's
practical reasoning. Fuller, in order to defend his principles of
legality as principles of morality rather than efficacy, had to
recognize that law's purpose is to serve the subject's pursuit of
self-chosen ends. In facilitating individual enterprise, law
respects individual freedom, not only in its formal aspect of
free agency, but also in its substance as self-determination.
Thus, although much has been made of the disagreement
between Hart and Fuller, implicit in their work is a funda
mental agreement on an idea the reverse of the one they
thought they were affirming: the idea of a necessary connec
tion between law and substantive justice.
Faculty of Law
University of Toronto, Toronto, Canada
E-mail: nadler.jb^gmail.com

103.248.123.65 on Wed, 29 Mar 2023 13:09:15 UTC

Hart, Fuller and the Connection between Law and Justice

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Hart, Fuller and the Connection between Law and Justice

Uploaded by

Copyright:

Available Formats

Hart, Fuller and the Connection between Law and Justice

Author(s): Jennifer Nadler

Stable URL: https://www.jstor.org/stable/27652636

This content downloaded from