Law and Force (Seminar Two)

● Authority - Concept

● Positivist Jurisprudence

● Meyerson, Denise, ‘Chapter 1 Law and Force’ + Hart, H.L.A, ‘The

Concept of Law’

○ John Austin

○ HLA Hart

■ Similarities with Austin

■ Hart’s critique of Austin

■ Law as a normative phenomenon - External vs Internal

point of view

■ Law as the union of primary and secondary rules

■ Why Hart’s account is superior to Austin’s

■ Criticism of Hart’s theory

Rival Accounts of Law, Morality and Legality (Seminar Three)

● Hart-Fuller Debate

● Is it a stretch to describe their discourse as a ‘debate’?

● The Debate - three positions

○ Gustav Radbruch

○ HLA Hart

■ Meyerson, Denise, ‘Introduction’

■ Hart, H. L. A., ‘Positivism and the Separation…

● Clarification of the distinction

● The problems of the penumbra

● Engagement with Radbruch - Positivism as the

cause of Nazism?

○ Lon Fuller

■ Meyerson, Denise, ‘Introduction’

■ Fuller, Lon, ‘Positivism and Fidelity to Law: A Reply…

● The Definition of Morality

● The Moral Foundations of a Legal Order + The

Morality of Law…

● On Nazi law and the grudge informer problem

■ Fuller, Lon, extracts from The Morality of Law in

Freeman…

● The three positions’ point of convergence - Retroactive statute

● Outcome of debate

Authority and the Rule of Law (Seminar Four)

● Joseph Raz

○ Raz, Joseph, ‘The Law’s Own Virtue’

■ The Rule of Law and its fundamental importance

■ Government as a Custodian

■ Identifying the Principles of the Rule of Law

■ Defending the Principle

■ Commentary and critique

● Brian Z Tamanaha, ‘Three Themes’

● Governor Davey’s Proclamation to the Aborigines

Plural Jurisprudences (Seminar Five)

● Lecture - frame and picture (Barr)

● Davies, Margaret, ‘The Ethos of Pluralism’

○ Core arguments

○ Singularity vs Pluralism

■ The Singular (Legal Monism)

■ The Plural (Legal Pluralism)

● Weak pluralism (Griffiths)

● Strong pluralism (Griffiths)

● Outward-looking pluralism (pluralism in fact)

● Inward or reflexive pluralism (pluralism as

inherent)

○ The 'Ethos of Pluralism'

● McMillan, Mark, ‘Koowarta and the Rival Indigenous International

○ On storytelling

○ Vignette 2 - Koowarta

■ Defects of the mainstream jurisprudence of Australian

courts

■ Poignant reflections of mainstream readings of Koowarta

■ The cracks in Australia’s settler jurisdiction - Koowarta as

a ray of…

■ McMillan’s jurisprudence of ‘walking in two worlds’

○ Vignette 3 - Professor Hilary Charlesworth

○ Vignette 4 - Indigenous transnationalism

● Black, C.F., The Land is the Source of…

○ Black’s jurisprudence

○ On book cover image

● Manderson, Desmond, ‘Desert Island Disks (Ten Reveries on

Interdisciplinary…

○ Words and texts

○ Before the law

○ Ngurrara Canvas II - significance of Indigenous art

○ Governor Davey’s Proclamation

○ Law, like love

● Uluru Statement from the Heart

Settler States and Indigenous Law (Seminar Six)

● Kirsty Gover, ‘Legal Pluralism and Indigenous Legal Traditions’

○ Sovereignty and recognition

○ Outward-looking pluralism - traditional approach (832)

○ Indigenous Legal Traditions per Legal Scholarship

■ Core features of Indigenous legal systems

■ Challenges of Indigenous legal theory and law to settler’s

■ Risks of writing about and ‘recognising’ Indigenous law

● Risks of being excessively cautious

■ ‘Just legal pluralism’ - what and how?

● Challenges of ‘just relational legal pluralism’

○ Where next for legal pluralism in settler societies?

● Ngurampaa Ltd v Balonne Shire Council & Anor

● Love v Commonwealth; Thoms v Commonwealth

○ Kiefel CJ (dissenting, 204-12)

○ Nettle J (majority, 241-57)

○ Gordon J (majority, 257-72)

■ Sovereignty and territory → Western concept

■ Sovereignty, recognition and the ‘people’ of Australia

International Law, Sovereignty and the State (Seminar Seven)

● Lecture (Sundhya Pahuja)

○ What disciplinary knowledge do we need to make sense of the

current…

■ Current world map

■ 1700 world map

○ The Hardening of European attitudes towards the Non-West

○ Savage Life

○ How does international law authorise imperialism

○ Anghie’s argument about the Peace of Westphalia

○ The myth of IL, international institutions and decolonisation

○ Self-determination and decolonisation

○ Standard of civilisation today - the development project

○ Statemaking - necessarily an ongoing project

● Anghie, Antony, ‘5. Towards a Postcolonial International Law’

○ Key arguments

○ The conventional narrative of sovereignty - Treaty of

Westphalia

○ Colonisation’s role in the making of international law

■ What does the conventional approach leave out?

○ 2 versions of sovereignty that must be accounted for

○ Imperialism, Globalism and International Law TODAY

● Gerry Simpson, ‘Mabo, International Law, Terra Nullius, and…

○ Tension underlying Brennan J’s judgment

○ Mabo and the redefinition of terra nullius

Law and Force (Seminar Two)

Authority - Concept

● The problem of authority constitutes an overarching concern of jurisprudential

debates, and figures at every point of the engagement of law.

● For many, authority is the broad organising theme of the modern state. It

addresses the conditions under which rulers can rule without direct resistance (and

inflictions of violence) and the conditions of subordination that a subject or citizen

should accept.

○ The relationship of authority is about sustaining or living with the hierarchies

of legal and social life.

○ For some, this is a matter of domination and subordination, addressed in

the language of obedience and obligation.

○ For others, authority is more a question of public reason and the conditions

of co-existence and co-ordination, addressed in the language of

legitimacy.

● Figures of Authority: Official or office holders (Hart), Sovereign (Austin)

● Modern state is underpinned by bureaucratic or legal rational authority

(Weber: Economy and Society,1922/1978: 215-216), whereby leadership and

government (comprising state officials) is held in place by rules. Rulership of

authority is exercised by officials, but authority is found in the rules rather than the

rulers.

○ Hart follows this tradition of legal thought.

Positivist Jurisprudence

● Schematic preoccupation with the posited law of the state

● Descriptive accounts of law based on law’s distinct qualities, social facts,

institutions, practices, or norms

● Relation between law and force

○ Q1: whether law is essentially a coercive practice (forcing us to act in

certain ways through threats of sanction; Austin) or a normative practice

(guiding conduct by means of standards of behaviour to which subjects

should conform; Hart). (2)

○ Q2: whether law and its nature can be understood from the outside (as

merely a matter of observable human behaviour; Austin) or whether they

should be understood internally (accounting for the beliefs and attitudes

of those participating in legal institutions; Hart). (2-3)

Meyerson, Denise, ‘Chapter 1 Law and Force’, Understanding

Jurisprudence (Routledge, 2007).

Cite this: Hart, H.L.A, ‘V. Law as the Union of Primary and Secondary

Rules’, The Concept of Law (Oxford University Press, 1961, 1994, 2012) (1st

or 2nd edition).

+

Hart, H.L.A, ‘The Concept of Law’ in Schauer, Frederick, and Sinnot-

Armstrong, Walter (eds.), The Philosophy of Law: Classic and

Contemporary Readings with Commentary (Harcourt Brace College

Publishers, 1996) pp. 44-48.

John Austin

● Context - developed theory of law at the time of creation of the modern nation-

state where power was unified with the sovereign and the erosion of feudal

relations where power was divided

● Task - to draw out a clear account of law that would be meaningful for the 19th

century

● Empirical and external account of law in terms of regularities in observable

occurrences, behaviour and patterns. (10, 15)

● Relationship between law and force

○ Command theory - Law is distinguished from other standards in being

the command meted out by the sovereign (the person or body of

persons which is habitually obeyed by the bulk of society and which does

not habitually obey anyone/anything else) and backed up by sanctions

for failure to comply. (10)

○ I.e. intertwines law and force (coercion), and emphasises that law only

exists because of the possibility of force, and individuals are ‘under a legal

obligation’ only because of an imminent threat of punishment.

● Relationship between law and morality

○ Law is a matter of social fact - argued that a morally neutral and

descriptive theory of law is both possible and desirable

○ Moral and political criticism was important - it was just not part of the

question about whether law exists

HLA Hart

● Type of society underpinning Hart’s project → Modern state societies

● Statist, socio-institutional account of legal authority.

● Where Austin focuses on the state’s sovereign, Hart deals with legal validity and

the role state institutions and officials play in the administration of law

Similarities with Austin

● Hart inherits the task of providing a positivist, descriptive account of what law

is and does, but focuses less on the sovereign and sanctions than on legal

officials and rules.

● Austin and Hart share a common assumption: that modern law is premised

on the singular, central authority of the state (Davies, 88, 92)

○ They presuppose the existence of a state and all its legal,

institutional and bureaucratic machinery.

● Similar to Austin, Hart ‘s theory is committed to the separation of religion and

morality from law.

Hart’s critique of Austin

● In Austin’s picture, force or coercion is the essence of law, while the state is a

gunman writ large (Hart, 1994, p 7). (11).

● Decentring the imperative of force from the concept of law, Hart critiqued Austin’s

account of law as conceptually and descriptively oversimplified, inadequate and

inaccurate vis-a-vis modern law, and used critique as a platform to build his

rules-based view of the concept of law.

○ First, Austin’s picture is ‘flatly descriptive’ and plainly ‘behaviourist’

(Hart, 1982, p 253). (15)

■ Thus, it cannot properly illuminate the concept of legal obligation,

legal authority and the normative dimension of the law (how law

guides our conduct by reference to normative standards of

behaviour). (11, 15)

■ It ignores individuals’ attitudes, mental states and beliefs, and

hence the way in which participants in legal institutions understand

their own conduct. (11, 15).

○ Obliged vs Obligation

■ In Austin’s account, sanction and legal obligation are inaccurately

conceptually linked, as threats backed up by sanctions do not

translate into legal obligations. (11)

■ Here, Hart distinguishes authority from force, and ‘obligation’ from

‘obliged’.

■ Force explains why one complies with the law, but does not

elucidate why one ought to comply, why those who demand

obedience have a right to it, and why it is justifiable to punish for

failure of compliance. (12)

■ By contrast, authority legitimately gives rise to (legal)

obligation, which makes distinct normative and evaluative

demands on legal subjects, entailing the duty to follow the law,

coupled with acceptance of being bound and of criticism for

disobedience. To have an obligation is to be obliged to do

something independently of feelings, beliefs and motivations. (19)

■ Austin’s account, then, obscures how instances of rule-deviation

justify sanctions, and are not merely ‘grounds for a prediction that

hostile reactions will follow’. (84)

○ Austin’s focus on command, subordination and the sovereign

imposes a ‘spurious uniformity’, as law does not always necessarily

operate on the basis of force/sanction/prohibition (Hart, 1994, p 49).

(12)

■ Laws can be used to confer power or establish civil relationships

such as contract or making wills. The legal obligations here do not

have their source in the lawmakers’ will.

■ Failure to observe the relevant requirements laid down by these

laws leads to legal invalidity, not a threatened harm. (12)

○ Austin’s concept of the sovereign is crude, as it lacks the resources

to explain the many typical features of legal systems. (13, 15)

■ For example, how authority is seamlessly transferred to the

successor law-maker, whereby the first law made by the new law-

maker is already law despite the fact that the new law-maker has

not yet received habitual obedience or been applied. (13)

■ Furthermore, laws made by an earlier legislator, now dead or now

defunct, can still be valid law even though that legislator is no

longer habitually obeyed. (13)

■ The lawmakers’ (officials’) powers are conferred and limited by law.

Therefore, sovereign is not legally illimitable, and sovereignty

cannot be the basis of law because it derives from law. (13, 15)

○ Authority need no longer rest with the sovereign and its sanctions,

but with legal officials, legal rules and the hierarchy of domination,

subordination and obedience.

Law as a normative phenomenon - External vs Internal point of view

● Law must be understood as a system of rules and ‘normative practice’ guiding

our conduct. (23)

● That is, law is to be found in the concept of legal obligation, which depends on

not only the external point of view on law (observing empirical behaviour/habits

and calculating the consequences of failure to obey), but also the internal point

of view (held by officials and the population in general as standards of

correct behaviour for the appraisal of their own and others’ conduct). (15-

6)

○ The internal standpoint is transformative, in that it allows Hart to

discuss what it means to follow a law, and to engage in the conduct of

relations of law.

○ My thoughts - contradicted in Ngurampaa

● But law’s normativity is of a special kind.

○ Moral rules, while functioning as practical guides to conduct, do so by

virtue of the character or content of the actions they prescribe or prohibit.

Their authority depends on their merit and rational underpinnings. (19)

○ Legal rules’ authority is content-independent, and the reasons for

action which they provide instead derive their normative force from

whatever conventions happen to be accepted by officials in a

particular legal system from the internal point of view (Hart, 1982, 254).

(20)

■ Legal authority, then, is a question of legal validity; for a law

to be binding, it must be valid.

■ Thus, a modern state’s legal authority is located in its secondary

rules, notably the ‘rule of recognition’, and the officials charged

with their application.

■ On this account, the law claims to be the supreme authority in

society, peremptorily displacing all other reasons or deliberations

(e.g. morality) (Hart, 1982, 253, 255).

■ There is no guarantee that legal rules are morally defensible, and

thus people can have legal rights and duties ‘which have no moral

justification or force whatever’ (Hart, 1994, p 268). (24)

■ Acceptance of rules is not tantamount to morally endorsing them.

(17)

■ My thoughts - As raised by natural law theorists (Fuller) and legal

pluralists (Davies, Gover, Manderson), law interacts in plural

social, ideological and political systems, all of which are products

of human construction. Though their theoretical frameworks are

different in content, they all call into question foundational tenets of

modern state law. Law, its institutions and rules are historically and

contextually contingent constructs. Natural law theorists and legal

pluralists exhibit a discursive understanding of law; they recognise

law’s inner contradictions, and the role that rival discourses (moral,

religious, Indigenous, Western, otherwise), forms of reasoning,

norms and subjects play in producing law. As a human construct,

law cannot be severed from what Davies calls ‘normative plurality.

The situatedness of law thus challenges Hart’s claim that the

authority of a legal rule is ‘content-independent’.

Law as the union of primary and secondary rules

● At the heart of Hart’s schemata is that the modern (state) law and legal system,

as distinct from other social standards/phenomena, is constituted by the union

of primary and secondary rules, wherein people generally obey the rules that

are valid as per the criteria of legal validity and legal officials accept the rules

defining validity as common public standards. (22)

○ Hart’s assumption - In a society where there are no rules created by

institutions, and no institution-creating rules accepted from the

internal point of view, there is no law (Coleman, 2001a, p 109).

● The union of primary and secondary rules, in more efficiently guiding

conduct, is itself transformative, moving us from the pre-legal/primitive to

legal/civilised world. (Hart, 1994, p 94). (21)

○ A society which has only primary rules of obligation will suffer from certain

‘defects’ of uncertainty, the static character of the rules and the

inefficiency of the diffuse social pressure by which they are maintained

(Hart, 1994, pp 92–3). (23)

○ See critique below!!!

● Primary rules - impose obligations or duties, directly govern our behaviour. (19)

● Secondary rules - rules for recognising, making, changing and interpreting

primary rules. (21)

○ ‘Rule of recognition’

■ Institutional arrangements that prescribe the authoritative criteria

used by legal officials to determine legal validity (and thus establish

authority) of primary rules. (Hart, ‘The Concept of Law’, 45-6)

● E.g. By reference to how a rule originates - law is valid if it

is an unrepealed enactment of parliament or if it is contained

in a judicial precedent

■ The rule of recognition is a conventional rule, i.e. it simply exists

as a contingent matter of assumed fact and social practice

whose binding force derives merely from the legal officials’

acceptance of it from the internal standpoint as an appropriate

standard of conduct. (20; Hart, ‘The Concept of Law’, 48)

● As such, there is no separate question about the validity of

a rule of recognition, even though its value or desirability is

open to challenge. (Hart, ‘The Concept of Law’, 48)

■ There is ‘no logical restriction on the content of the rule of

recognition’ (Hart, 1983, p 361). (21)

● In turn, this means that the primary legal rules valid under

a rule of recognition are not guaranteed to enjoy

rational/moral support. But, however unmeritorious the

primary legal rules may be, provided they conform to the

criteria laid down in the rule of recognition, they remain

legally valid and generate legal reasons to follow them. (21)

○ ‘Rule of change’

■ specify who or what body has the power to create new legal rules

and specify any procedures that must be followed by such a person

or body. (21)

○ ‘Rules of adjudication’

■ enable disputes about whether a primary rule has been broken to

be conclusively resolved - e.g. court system (21)

○ Internal element - For institutions to be possible, the secondary rules

must be acknowledged and accepted by officials from the internal

standpoint as authoritative and normative standards of correct official

behaviour. (22)

■ Otherwise, ‘the characteristic unity and continuity of a legal system

would have disappeared’ (Hart, 1994, p 116).

Why Hart’s account is superior to Austin’s

● Hart’s account of law, in terms of a system of rules – standards which are

perceived as providing reasons for action – explains the features of law which

Austin’s austerely external account of law, which merely describes or predicts

regularities of behaviour, could not explain. (24)

○ Austinian predictions of punishment are not normative – they are made

purely from the external point of view – and they therefore cannot explain

why punishment, following law-flouting, is appropriate or justified.

○ Austin’s theory fails to capture the distinctive way in which law purports to

govern our conduct, namely, by imposing duties to comply, not by

threatening us with harm. Austin thinks that rules are obligatory because

sanctions are attached to their breach, but it is exactly the other way

around: sanctions are used when rules are thought of as obligatory.

● Hart is also able to account for the other features of legal systems for which

Austin cannot account: the continuity of the authority to make law, the

persistence of law and the exercise of sovereign power by the electorate. (25)

○ The reason why law-making power survives a change in individual law-

makers is because the authority to make law is conferred on persons by

virtue of their occupation of an ‘office’. The concept of ‘office’ cannot be

understood in terms of the sovereign’s will, for the concept of office

defines sovereignty, rather than the other way around. (25)

○ It is a secondary rule which accounts for the fact that laws made by an

earlier legislator, now dead or now defunct, can still be valid law. (25) We

have a rule of what is to count as law which embraces, as Hart says, ‘past

as well as present legislative operations’ (Hart, 1994, 65). (25)

○ Hart’s account has a more nuanced understanding of (state) sovereignty

- legal rules create sovereign status. It is not, as Austin mistakenly

supposed, the other way around – that all rules emanate from the

sovereign. (25)

Criticism of Hart’s theory

● Circular reasoning - until we know what the law is, we cannot really know what

a legal official is. There must be some point where law is not normatively

acknowledged by officials in a straightforward fashion.

● Hart’s conceptual scheme of primary and secondary rules relies on

schemes of thought and practice drawing on Imperial legal thought that

draws a distinction between primitive and civilised societies.

○ In the Concept of Law, Hart (79) placed international law and

Indigenous law into the ‘too hard’, conceptual outsider basket of ‘nearly-

but-not-quite law’ or ‘disputable and borderline examples of law’.

○ By extension, while Hart attempts to decentralise force from law (diverging

from Austin), he inherits a language and tradition where the exercise of

authority is also intimately connected to the application of force/violence.

○ In turn, Hart’s legal theory essentially conceals, if not justifies, the imperial

violence which lies at the heart of the state laws and praxis of both the

British Empire and Australia.

○ The casual adoption of imperial imagery (civilised vs barbaric) is ultimately

rejected by the HCA in Mabo (No 2).

● Hart’s categories seem problematically universalising and totalising

○ Hart offers his theory as a general theory about the institution of law – an

institution, which has, he claims, ‘in spite of many variations in

different cultures and in different times taken the same general form

and structure’ (Hart, 1994, p 240). (19)

○ However, given that Hart’s theory is framed through Anglo Western

European lens, the aforementioned claim denies the sufficiency of the

ways in which other cultures and legal systems are organised (e.g. non-

institutional forms).

○ Again, this presents problems for social equity and imperialism.

● Hart’s account of the internal perspective on law might be contrasted with

pluralist and Indigenous accounts.

○ For Hart, the internal aspect relates to a sense of obligation and duty, not

identical to either conscience or morality, but specific to the legal form.

○ By contrast, for certain Indigenous philosophers (Black’s commentary on

Bill Neidjie), the internal perspective is a different kind of feeling - a feeling

that allows a person to be placed and patterned in relation to land and to

feel that they come after the land. The spiritual attachment to land and its

law in turn engenders responsibility for law.

Rival Accounts of Law, Morality and Legality (Seminar Three)

Hart-Fuller Debate

● Key Question: Is there a necessary nexus between law (legal validity) and

morality (moral validity), or at best a contingent connection?

● The Hart-Fuller Nazi law ‘debate’ is a classic because it presents three different

theoretical ways in which the so-called law/morality distinction can be configured

to answer questions about authority, legal validity, the moral force of law, the

responsibility of jurists, and the obligations owed to enacted law.

● The debate exposes the consequences of adopting a particular theoretical frame,

challenging readers to interrogate the meanings of ‘law’ and ‘morality’, and what

such meanings canvas or leave out.

Is it a stretch to describe their discourse as a ‘debate’?

● First, it must be acknowledged that both theorists are not engaging with an agreed

subject matter (what is law and in what circumstances should we obey it?).

● Secondly, sometimes we go too far in setting the two schools of thoughts in

opposition.

○ There is nothing in the natural law tradition that refuses the idea of posited

law — in fact, that is part of the tradition itself.

■ The difference is that natural law accounts, focused on the ethical

form of law, assert that human-posited laws constitute an

institutional scaffolding that is answerable to some objective

external standard or goal (e.g. morality, justice) beyond the

conditions of their pedigree/authority (e.g. the rule of recognition).

○ Furthermore, the nature of polemics in legal philosophy is such as to give

rise to a tendency to polarise theoreticians in strictly antithetical positions,

when in reality it is sometimes necessary to overstate the extremity of one’s

own position in order to keep it distinct from the other side’s.

● Thirdly, the discourse was not meant to be a ‘debate’ — it was Hart spelling out

his agenda, but then became a ‘debate’ insofar as Fuller demanded a right of reply.

○ The key point to Fuller’s (non-)success in the ‘debate’ is that he did not set

the agenda - this was Hart’s agenda to both set questions and defend them

in a certain way, and Fuller entered in as respondent and tried to both

answer and dispute Hart’s arguments, while simultaneously building his

own agenda.

○ Despite their discussion on the law/morality relationship, Hart and Fuller are

to an extent at cross-purposes.

■ What legal positivism seeks to achieve is a theory and philosophy in

which law is disentangled from all conditions.

■ Meanwhile, Fuller explores ‘how we can best define and serve the

ideal of fidelity to law’ (Fuller, 632).

■ Therefore, although both jurists understand law as an instrument to

an end, in Fuller’s wider canvas of legal theory, legal inquiry should

not be limited to only identifying ‘what law is’, but should also attend

to conditions that generate attitudes of allegiance, since law cannot

be fruitfully explained in isolation.

■ Contrary to Fuller, then, perhaps explaining fidelity to law is not

‘explicitly acknowledged on both sides’ as the ‘chief issue’ (Fuller,

632).

● Fourthly, the notion of debate entails a ‘winner’ versus ‘loser’ situation,

diverting attention from the need to elucidate what is at stake in seeing

things in multiple different ways.

The Debate - three positions

Gustav Radbruch

● Legal philosophy is widely misunderstood, even by Hart

● Oversimplified as a theorist who ‘converted’ from positivism to natural law post-

Nazism. (Hart, 616)

● Actual legal philosophy is far more sophisticated, combining elements of both

legal positivism and natural law.

○ Law serves three goods: public benefit, equality and justice.

○ In every ordinary case, we should accept the precepts of legal positivism,

and give our obligation to laws that have been validly produced by the

legal system.

○ But in the extreme case where that value of legal certainty and clarity that

positivism upholds are in direct clash with other values that law must stand

for, including equality of treatment and justice, then those other values

and natural law should prevail.

○ In this situation, statutory lawlessness arises - a law is to be rendered

lawless for want of just content despite its exterior appearance and

institutional pedigree of being valid.

● On Nazi law + the problem of grudge informers

○ The fundamental principles of humanitarian morality meant that a positive

enactment, however clearly it was expressed and however it conformed

with the formal criteria of validity of a given legal system, must be

invalidated as having no legal character if it has immoral/unjust content

(Hart, 617).

HLA Hart

Meyerson, Denise, ‘Introduction’, Understanding Jurisprudence (Routledge,

2007).

Legal positivism (Hart, Austin, Raz)

● The legal positivist project (particularly Hart’s) purports to be therapeutic, in that

it seeks to clear confusions about the relations of law and science, on the one

hand, vis-a-vis evaluative standards like morality, on the other.

● Legal positivists are concerned to render clear-cut and intelligible answers to

what law is as a matter of fact, as exemplified by the common refrain of a law

is that which is valid within a system humans have set up for its validity.

○ E.g. Austin’s view - law is the command of the sovereign habitually

obeyed backed by sanction

○ E.g. Hart’s view - law is that which emanates from the union of primary

and secondary rules and fits the official rules of recognition (e.g. whatever

the Nazi says is law is law)

● Tenet - There is no guaranteed nexus between law and morality and so laws are

not necessarily morally tenable. (3-4)

○ Questions of what law is (i.e. existence) must be divorced from moral

and political judgments of what law ought to be (i.e. merits/content).

(Hart 596)

● Strength - Legal positivism is useful in providing a neat, clear-cut and attractiver

formula of legal validity - e.g. Hart’s rule of recognition → laws of a system are

valid if they emanate from that which legal officials recognise as the legal

institutions that create authoritative law, e.g. parliaments and courts

● Mission - to defend and revive the core tenet of legal positivist philosophy, i.e.

that law and morality have no necessary connection, and the utilitarian distinction

(in the vein of Bentham and Austin) between the existence of law and its merits,

justice or righteousness.

● Structure - tackling in succession all key questions or competing claims against

legal positivism.

● Tone - defensive and argumentative

● Context - Dissatisfied with the way that German courts, following Radbruch’s

account, invalidated numerous nazi statutes owing to their unjust content.

Hart, H. L. A., ‘Positivism and the Separation of Law and Morals’ (1958) Harvard

Law Review 71, 593-629.

Clarification of the distinction

● Why did Bentham and Austin insist on analysing what law IS and what law

OUGHT to be as TWO separate things? (596)

○ Both thinkers' prime reason for this insistence was to enable clear

discernment of the precise issues posed by the existence of morally

bad laws, and to understand the specific character of the authority of a

legal order. (597)

○ There are two dangers this distinction will help us to steer: (598)

■ ‘Anarchic’ risk that law and its authority may be dissolved in

conceptions of what law ought to be

■ ‘Reactionary’ risk that the existing law may supplant morality as

a final test of conduct and so escape criticism.

● What the utilitarians did not mean by insisting on the separation of law and

morals? (598)

○ First, they never denied that the development of legal systems had been

powerfully influenced by moral principles (598)

○ Secondly, they never denied that moral principles might at different points

be brought into a legal system and form part of its rules, or that courts

might be legally bound to decide in accordance with what they thought

just or best. (599)

■ What both Bentham and Austin were anxious to assert were the

following two simple things: first, it could not follow from the mere

fact that a rule violated standards of morality that it was not a law;

and, conversely, it could not follow from the mere fact that a rule

was morally desirable that it was a legal rule. (599)

The problems of the penumbra

● Criticism by American realists: The problems of the penumbra

○ Distinction between law and morality is often stigmatised as the error of

‘formalism’ or ‘literalism’ (608), for it obscures the fact that there are

essential intersections between law and morality, such as when laws have

to be interpreted and applied to cases.

○ Judges must resort to something other than logical deduction to resolve

cases – e.g. considerations of what the law ‘ought’ to be (moral judgment).

● Hart’s counterargument

○ Austin was very much alive to the character of language, to its vagueness

or open character; he thought that in the penumbral situation judges must

necessarily legislate more forcefully in conformity with moral principles of

utility (609)

○ To soften the distinction, to assert mysteriously that there is some fused

identity between law as it is and as it ought to be, is to suggest that all

legal questions are fundamentally like those of the penumbra. It is to

assert that there is no central element of actual law (615)

■ My thoughts - this is only problematic if one espouses

wholeheartedly the positivist framework. Decentring any purported

central element of actual law may perhaps be the way forward to

open up possibilities of plural sources of law.

○ It does not follow that, because a decision is intelligently reached by

reference to some conception of what ought to be, we have a junction of

law and morals. (612)

■ Clarifies the use of ‘ought’ → The word "ought" merely reflects the

presence of some standard of criticism; one of these standards is

a moral standard but not all standards are moral. (613) The

intelligent decision of penumbral questions can be one made

not mechanically but in the light of aims, purposes, and

policies, though not necessarily in the light of anything we

would call moral principles (614)

● Under the Nazi regime men were sentenced by courts for

criticism of the regime. Here the choice of sentence might

be guided exclusively by consideration of what was needed

to maintain the state's tyranny effectively. (614)

● In contrast with a mechanical decision, decision on these

grounds would be intelligent and purposive, and from

one point of view the decision would be as it ought to

be. (614)

● The example warns that we cannot use the errors of

formalism as something which per se demonstrates the

falsity of the utilitarian distinction between law as it is and

law as morally it ought to be. (614)

■ My thoughts - Not convincing. The example of Nazi legal regime

pursuing tyranny or a so-called ‘arbitrary’ guide to criminal cases,

is underpinned by some value-based judgment that prioritises

certain values (white supremacy; terror; efficiency). These values

can plausibly be framed in moral terms in some way.

Engagement with Radbruch - Positivism as the cause of Nazism?

● Criticism by Radbruch

○ The positivist slogan of ‘law is law’ had powerfully contributed to the

horrors of nazism, being exploited by the Nazi regime (617)

○ My thoughts re: whether positivism contributed to the power of Nazi law

■ We must be careful to not overstate the perceived malign influence

of positivism — Hitler came to power democratically with

paramilitary backing, and so Nazism might still transpire even if the

natural law rather than positivist paradigm had been espoused.

● Hart’s counterargument

○ The legal validity of the Nazi laws remain unaffected by its unjust content

and should be preserved.

○ The criticism of the separation of law from morality is less an intellectual

argument, than a ‘passionate appeal supported not by detailed reasoning

or clarity but by reminders of a terrible experience’ (616-7), which diverts

attention away from the good sense legal positivism and brings legal

theory/praxis into intellectual disrepute.

○ Invalidating Nazi statutes on the ground of contravening fundamental

principles of morality is a ‘hysterical’ response that must be challenged.

(619)

■ The vice of the principle that what is utterly immoral cannot be law

or lawful is that it will serve to cloak the true nature of the

problems with which we are faced and will encourage the

romantic optimism that all the values we cherish ultimately

will fit into a single system, that no one of them has to be

sacrificed or compromised to accommodate another. This is

surely untrue and there is an insincerity in any formulation of our

problem which allows us to describe the treatment of the dilemma

as if it were the disposition of the ordinary case. (620)

■ Whereas the distinction makes it easier to pinpoint moral

ambiguity, the blurring of legality and morality disables

morality as an independent external lens of critique. (620)

■ My thoughts - Granted that seeing morality as an external

evaluative lens is desirable, horrors akin to Nazism can still occur

if the lens has no power or if there is no procedural implementation

of that lens.

Lon Fuller

Meyerson, Denise, ‘Introduction’, Understanding Jurisprudence (Routledge,

2007).

Natural law

● Tenet - There is a necessary connection between law and morality, whereby

moral validity is necessarily a condition of legal validity: extremely unjust rules

cannot be law or are not ‘true’ laws. (3)

● Lon Fuller

○ Unlike Hart, Fuller is more concerned with the purposes and aspirations

of law and the question of why we should obey.

○ Law is conceived as an ‘activity’ with the purpose of subjecting human

conduct to the governance of rules and achieving good order.

○ Argues that there are certain procedural ‘virtues’ (8 principles of

legality) constituting the inner morality of law to which a system of

rules has to adhere in order to be regarded as a legal system. (3)

■ It is such adherence that explains why we should remain fidel and

obedient to law.

■ Here, it is evident that for Fuller, the external standard to which law

is answerable is to be extracted from what is immanent to the

practice of law itself, rather than some metaphysical source. For

this reason, Fuller is a ‘reluctant’ natural law theorist.

● My thoughts - the ‘practice of law’ is contextually contingent

and culturally specific → only Western practice?

● Strength - Natural law theory is more persuasive and coherent in answering

questions as to obligations and why we would obey law, because of its

consideration to some other standards to which law is answerable.

● Mission - to dispute that the positivist project was too narrow, and that its

descriptive methods and distinctions left too much out of legal inquiry.

● Structure - answers Hart’s points in a different order

● Tone - critical and challenging

Fuller, Lon, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958)

Harvard Law Review 71, 630-672.

The Definition of Morality

● Those sharing the view of Hart have generally sought a precise definition of law,

but have not adequately defined ‘morality’, which appears to stand

indiscriminately for almost every conceivable extra-legal standard, regardless of

their sources, pretensions or intrinsic worth. (635)

● However, Hart propounds an idea of immoral morality, which means that in

infusing morality into the law, morality might be used as a political weapon to

realise iniquitous goals. (636)

● Fuller’s counterargument:

○ First, Hart seems to assume that evil aims may have as much coherence

and inner logic as good ones. (636)

■ Coherence and goodness have more affinity than coherence and

evil. It follows that when humans are compelled to explain and

justify their decisions, the effect will generally be to pull those

decisions toward goodness, by whatever standards of ultimate

goodness there are. In turn, there is considerable incongruity in

any conception that envisages a possible future in which the

common law would ‘work itself pure’ toward a more perfect

realization of iniquity. (636)

○ Second, even if there is a serious danger in our society that a weakening

of the partition between law and morality would permit an infusion of

‘immoral morality’, the positivist position espoused by Austin and Hart

would not be the most effective protection against this danger. (636)

○ Third, a judge bent on realizing through his decisions an evil objective

would be more likely to take refuge behind the maxim that ‘law is law’ and

explain his decision in such a way that it would appear to be demanded

by the law itself, than to suspend the letter of the statute by openly

invoking a ‘higher law’ like morality (637)

The Moral Foundations of a Legal Order + The Morality of Law Itself + The

Dilemma

● After the collapse of the Nazi regime the German courts were faced with a truly

frightful predicament in seeking to rebuild Germany’s shattered legal

institutions. (648)

○ On the one hand, the wholesale outlawing of all Nazi laws over a span of

twelve years would result in intolerable dislocations, upholding (respect

for) order at the expense of (respect for) law.

○ On the other hand, keeping intact the effects of Nazi violence perpetrated

in the name of the law would have tarnished Germany’s uncertain future

with the poisons of Nazism, upholding (respect for) law at the expense of

(respect) order.

○ Neither law and order could be restored without the other, but

complications were encountered in attempting to restore both at once.

● The true problem dividing Hart and Radbruch/Fuller is the way that the

nature of the dilemma is framed (656)

○ Hart’s positivist view of the dilemma as Fuller sees it: when confronted

with a thoroughly evil statute, we need to choose between two duties:

obey the amoral datum called law, OR do what we deem right and

decent. (656)

■ The tenet of positivism — that law must be strictly severed from

morality — seems to deny the possibility of any mediating bridge

between the obligation to obey law and other moral obligations,

and their respective demands on conscience. (656)

○ Radbruch’s and Fuller’s view of the dilemma: The dilemma is between

meeting the demands of ‘order simpliciter’ (i.e. bare law), on the one

hand, and those of ‘good order’ (i.e. where law corresponds to the

imperatives of morality or justice), on the other. (644, 657)

■ Unlike legal positivism, this framing does not present us with

opposing demands that have no living contact with one another,

and that simply shout their contradictions across a vacuum. As we

seek order, we can meaningfully remind ourselves that order

itself will do us no good unless it is good for something. As

we seek to make our order good, we can remind ourselves that

justice itself is impossible without order/law, and that we must

not lose order itself in the attempt to make it good. (657)

● The problem with Hart’s theory is that it bypasses the nature of the fundamental

rules that make law itself possible. (639) Law cannot be self-executing (645),

and becomes possible only by dint of rules that are not law (642).

○ First, the efficacy, authority or indeed legitimacy of law must be supported

by external moral attitudes/ethos of respectful deference, general

acceptance and loyal commitments from subjects and officials (at least

provisionally) that accord to it the competency it claims. (642)

○ Secondly and crucially, there is no law until the lawmaker is ready to

accept the internal morality of law itself, which can be translated into

8 principles of legality that have come to be associated with the basic

(procedural or formal) features of the rule of law. (645)

○ It is these considerations that justify the idea(l) of fidelity to law on the

part of legal subjects and officials, and reveal the essential incapacity of

the positivist view to serve that idea(l) effectively. (642)

■ Indeed, the duty of fidelity to law must be considered in a context

which also embraces the responsibility for making law what it ought

to be. (646)

■ In its concern to assign the right labels to the things humans posit,

legal positivism appears to lose all interest in asking whether

humans are doing the right things. (643)

○ Contrary to Hart’s thought, law is not a datum simply imposed or

projected onto human experience from a vacuum, but a purposive

object of human striving. (646)

○ My thoughts - For Fuller, there are not just rival accounts of the

law/morality relationship, but also rival views of what law is at stake.

■ Fuller directs attention to the nature of the conditions that underlie

the possibility and practicability of legal ordering in the first place,

and raises larger questions about our commitment to law.

■ Of course, it would appear that in contemporary (Western)

societies legal positivism squarely dictates the rules of the game of

validity.

■ But by picturing law as a purposeful enterprise of human

achievement rather than just of human positing, Fuller rejects the

notion that the existence of law can be switched ‘on’ and ‘off’

instantaneously. Fuller challenges us to interrogate whether what

positivists call ‘law’ actually deserves the title of legal system —

is the rule of recognition sufficient per se, or must there be a striving

towards justice and decency?

■ In this sense, Radbruch’s approach of ‘extremely iniquitous laws

are no laws’ can be rephrased as ‘this rule is the fruit of a regime

so oblivious from the morality of law that it is not entitled to

constitute a law’. (661)

■ Fuller raises the problem of what does Hart’s account mean when

morality is sought to be excluded from law — is Hart also excluding

all of the conditions that go into constituting a legal system and

making law and attitudes of fidelity possible? What exactly are the

terms of Hart’s project?

■ Fuller claims that Hart’s theory neglects these questions, and

challenges Hart to explain where these questions fit within the

positivist frame, and why do/should we obey the legal system that

he has identified.

■ The key message is that law (in practice) is not just black letters on

a page or an empty vessel where good or bad content can be

poured into, but a structure of relationships.

● KEY - When legal order is considered as something that must be worked

for, it becomes evident that the existence of a legal system, even an evil

one, is always a matter of degree. (646)

○ Realising this should preclude the description of evil laws (e.g. the Nazi

regime) simply as ‘bad but valid/actual laws’, and would instead prompt

the question of how much of a legal system remained following the

wide corruption/debasement of social order, and what moral

implications such mutilated system has for the conscientious citizen

forced to live under it. (646)

○ Mere deference for constituted authority and rules of an evil or inept

regime must not be confused with fidelity to ‘law’, for such a regime never

made any. (Fuller 2015, 141)

○ My thoughts - While Fuller’s idea is very compelling, it is unclear per

Fuller’s account under what exact circumstances (i.e. the extent of

immorality/injustice) would a law/legal system exist or cease to be as

such. Nazism constitutes a scenario in extremis where the resources and

answers yielded by legal theory are in their starkest, most ‘obvious’ form.

But in contemporary (Western) societies law operates in a more nuanced

manner. Virtually all laws raise issues of (im)morality, so does this mean

their existence is all a matter of degree as opposed to hard fact? Fuller

would argue that law exists when the 8 principles of legality are

substantially satisfied under normal circumstances. However, it is

arguable that the 8 principles of legality and their compliance do not offer

a satisfactory answer to prevent a totally relativistic perspective on law,

which Fuller’s contention appears to entail.

■ First, Fuller himself acknowledges that their achievement is overall

aspirational and a matter of degree as well.

■ Secondly, adherence to them may still produce morally iniquitous

laws → see Fuller’s counterarguments → still begs the question of

whether ‘evil’ laws that substantially fulfil the internal demands are

laws. If yes, does this not defeat Fuller’s and natural law accounts’

whole point and argument that extremely unjust laws are no laws?

■ Thirdly, Fuller’s 8 principles of legality plainly do not apply to every

form of law, but only to institutional and state-centred laws. In this

sense, Fuller’s conception of law, like Hart’s, seems to necessarily

preclude and deny the existence of Indigenous laws as ‘law’

properly so-called → internal morality is immanent to a specific,

culturally contingent type of practice of law → draw analogy to Raz

○ From this vantage, is Fuller’s theory marooned in the realm of

discourse/rhetoric or can it actually work in practice? Is Fuller

discussing law/morality in a way that leaves a lot more unanswered

questions?

On Nazi law and the grudge informer problem

● Legal positivist philosophy does not have the right resources or approach to

confront the legal problems of post-Nazi Germany.

● The Nazi legal regime serially made secret/unpublished statutes and retroactive

statutes, disregarded its own enactments (e.g. inconsistent or nonsensical

interpretation and application), authorised uncontrolled administrative discretion

that stood as an invitation to arbitrary exercise of power, and actively endorsed

violence. (652)

○ Fuller challenges Hart to answer where do considerations of retroactivity,

uncontrolled discretion and secret statutes belong in legal positivist

philosophy.

● Fuller thinks that Radbruch’s position, even as Hart understood it, is defensible

(652).

○ Unlike Professor Hart, the German courts and Gustav Radbruch were

living participants in a situation of drastic emergency. The informer

problem was so pressing that people would begin taking the law into their

own hands while the courts were waiting for a statute. (655)

○ So far as the courts are concerned, matters certainly would not have been

helped if, instead of saying, ‘This is not law’, they had said, ‘This is valid

law but it is so evil we will refuse to apply it’. (655)

● But Fuller adopts a different solution — the quandaries of legal status of Nazi

law can be settled not through reference to their unjust content, but to the

considerations of the ‘inner morality of law’, which places demands on law in

terms of form.

Fuller, Lon, extracts from The Morality of Law in Freeman, Michael D.A. (ed.),

Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, 2015 edition) pp. 138-

151

● The inner morality of law comprises 8 principles of legality by which excellence

in legality may be tested and to which a system of rules may strive (140-1)

○ (1) Generality - Rejection of deciding on an ad hoc basis.

○ (2) Publicity of rules;

○ (3) Prospectivity - Rejection of retroactivity;

○ (4) Clarity and intelligibility of rules;

○ (5) Consistency of rules

○ (6) Capable of being obeyed;

○ (7) Stability without frequent changes;

○ (8) Congruence between declared rules and their actual administration

○ A total failure in any one of these eight directions does not simply result

in a bad system of law; it results in something that is not properly called a

legal system at all

● The internal morality of law is in this sense a procedural/institutional version

of natural law. (143)

○ While law’s internal morality appears indifferent toward substantive aims

of law and ready to serve an array of aims (good or evil) with equal efficacy

(147), procedural fairness in practice limits the possibility of morally

repugnant laws. (149)

○ E.g. laws attempting to make legal rights depend on race may be commonly

thought of as combining a strict observance of legality with the enactment of a

body of law that is brutal and inhuman. But this view could only arise from an

inveterate confusion between deference for constituted authority and

fidelity to law. An examination of the legislation by which racial discrimination

is maintained in South Africa reveals a gross departure from the demands of the

internal morality of law. (148)

● The inner morality of law is condemned to remain largely a morality of

aspiration and not of duty. (142) A recognition that the internal morality of law

may support and give efficacy to a virtuous substantive aims should not

mislead us into believing that any substantive aim may be adopted without

compromise of legality. (147-8)

○ E.g. if a legislator is attempting to remove some evil and cannot plainly

identify the target at which his statute is directed, it is obvious he will have

difficulty in expressing his laws in clear and intelligible terms. (148)

● Legality as a Condition of Efficacy (148)

○ The internal morality of the law is not something added to, or imposed on,

the power of law, but an essential condition of the existence and

power of law itself.

○ It follows that law is a precondition of good law.

■ My thought - counterargument to Hart’s idea of the morality of

poisoning?

○ Carpenter analogy

■ A conscientious carpenter, who has learned his trade well and

keeps his tools sharp, might, we may suppose, as well devote

himself to building a hangout for thieves (evil purposes) as to

building an orphans' asylum (virtuous purposes).

■ But it still remains true that it takes a carpenter, or the help of a

carpenter, to build an orphans' asylum, and that it will be a better

asylum if he is a skillful craftsman equipped with tools that have

been used with care and kept in proper condition.

■ If we had no carpenters at all it would be plain that our first need

would be, not to draft blueprints for hospitals and asylums or to

argue about the principles of good design, but to recruit and train

carpenters.

■ It is in this sense that much of the world today needs law more than

it does good law.

● Important to note about Fuller

○ Fuller’s idea about the inner morality of law does NOT claim an objective

standard of morality.

○ Fuller NEVER claimed that complying with the internal moral

demands of law will necessarily produce moral laws.

○ It is that in substantially abiding by the 8 principles of legality, there is a

possibility of producing law, a legal system with

structural/procedural integrity and coherence, and of operating a

legal system.

○ Morality places demands on not so much the content of laws as the

lawmakers’/officials’ role, capacity, action and practice.

The three positions’ point of convergence - Retroactive statute

● Curiously, if given the choice, the three jurists would have solved the dilemmas of

the grudge informer cases through a retroactive statute.

● They all accept that there is a profound dilemma at stake here - any system that is

trying to rebuild respectful law and justice does not want to start by changing the

law and the meaning of the law by putting retroactive statutes, which means that

people can only discover the consequences of their actions ex post facto. (e.g.

Fuller, 651)

● Retroactive statutes are one of the great villains against a rule of law order,

‘robbing every law of some of its significance’. (Fuller, 651)

● But the three characters would have preferred that be the solution, because of the

urgent situation and because it would have created a clear political and

moral statement by the German Parliament to break with the past.

○ For Hart, odious as retrospective criminal legislation and punishment may

be, to have pursued it openly would at least have had the merits of

candour, making plain that a choice had to be made between two evils,

that of leaving grudge informers unpunished and that of sacrificing a very

precious principle of morality endorsed by most legal systems. (Hart, 619)

○ For Fuller, retroactive statutes must be passed in the name of legal order.

In the Nazi context, a retroactive statute marks a sharp break with the

past, and enables the judiciary to return more rapidly to a condition

wherein the demands of legal morality could be given proper respect,

and fidelity to law could be regained. (Fuller, 661)

● Fuller’ rebuff to Hart was that the legislature was not doing that, and the courts

instead had to deal with this problem. The judges had to have a philosophical

position to do so.

Outcome of debate

● Hart later postulates the idea of the ‘morality of poisoning’, contending that

Fuller’s 8 principles of legality simply sharpens the edge of the law's knife,

rendering law more effective in executing its instrumental work, irrespective of

whether the end is good or evil.

● Raz then took up the elements of the Hart-Fuller debate, recognised them as a

conceptual debate about law and the rule of law, and put the final nail on behalf of

legal positivism in Fuller’s law and morality coffin.

● My thoughts - the positions threw up by the ‘debate’ are inherently circular,

depending on a particular framing of law. This demonstrates the importance of not

pigeonholing oneself to a particular school of thought when thinking about how law

and a legal system should be organised.

○ Hart and Fuller also do not answer why do/should we have a legal system

in the first place, and why should law be politically organised in a particular

form to the exclusion of others. They merely acknowledge that law is an

instrument to effect some end.

○ Will Fuller’s approach/account generate better solutions to current laws that

raise issues of morality?

■ E.g. Immigration law vis-a-vis asylum seekers → strong language that

excludes most people with disabilities from immigrating into Australia

■ E.g. Foreign relations bill → power to retrospectively invalidate legal

instruments in Australia on the basis of inconsistency with Australian

foreign policies