8/11/2019 Fuller on Hart and Nazi Law

1/2

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 ultimatesource 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

society.

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

8/11/2019 Fuller on Hart and Nazi Law

2/2

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

law.

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 thatstrives 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 thatthe 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

enforce?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.