Main points
We covered two basic points of disagreement between Hart and Fuller.
- Obligation. Fuller thinks that Hart’s rejection of Austin’s command theory (specifically, the gunman argument) makes sense only if legal obligation is a kind of moral obligation. Hart thinks that legal obligation is a matter of taking the “internal” point of view on legal rules. It is not necessarily the same thing as moral obligation.
- The internal morality of law. Fuller points out several ways that legal authorities (a.k.a. sovereigns) have to act in order to have a functioning legal system. Hart made a similar point about what he called the natural necessities of law and natural justice. The difference: Hart didn’t say “morality”.
Who is right?
While I think that Hart argued more effectively for his position, I don’t think he clearly won the exchange. Legal obligation might be a form of moral obligation. Hart himself pointed out that the two are at least very similar. Nor is it just obvious that his description of the second point is more accurate than Fuller’s. They’re very close to one another, after all.
I think that Will hit on the way to make up our minds about this.
First, describe morality. Be broad, be imaginative, don’t worry about theories. Just get the commonsensical things to say about morality out on the table.
Second, ask whether law is like the central cases of morality or not.
Will suggested that his attitude towards the law is not like his attitude towards morality. I said I was similar. Neither of us regards, say, traffic laws as like moral rules. That’s not to say that we don’t recognize moral reasons for obeying traffic laws: it’s unsafe to ignore them, after all, and that’s morally wrong. But we just don’t feel guilty when caught violating the law in the same way that we feel guilty when caught breaking the moral rules.
That doesn’t prove anything, of course. Maybe our feelings are leading us astray. But it’s evidence. Pile up enough of it and you might have something.
A response
Did we skew the results? We compared a fairly trivial legal wrong (traffic violation) with a fairly important moral wrong (treating someone close to me very badly). So of course we came up with that result. But that doesn’t prove anything about our attitudes towards law and morality in general.
Hmm. That’s a good point. I need to think about this more.
Adjudication
Hart has no theory of adjudication. That’s a fancy way of saying that his version of positivism doesn’t tell judges how to make hard decisions.
One example of a hard decision is one where the written or customary law is indeterminate.
Another example of a hard decision is one where the settled law seems to conflict with morality. People like Fuller regard this as a conflict within the law. If the settled law is immoral, it’s not really law. Positivists like Hart regard the conflict as happening between two different things: the law and morality.
Fuller has a theory for at least the second kind of hard decision. If the settled law is immoral, judges should decide it isn’t really the law. Those who “settled” it were mistaken. He also makes what appears to be a pretty good point. It would be strange for a judge to say that something was the law but should be discarded on moral grounds (p. 78, left column).
Of course, this method is only as good as our means for deciding what morality requires. As Stephanie and others noted last time, that can be extremely vague.
But as Victor pointed out, the vagueness infects the positivists’ position too. The issue for them isn’t what the law is but rather whether to obey the law.
It would be stupid to get rid of morality for the sake of intellectual tidiness. Values are vague, that’s just the way they are. But they’re still important, fer chrissakes.
The question about the separation of law and morality is: which way of regarding the relationship between law and morality best handles the social and intellectual problems that law and morality present us with?