Preface: It may be helpful to read legal positivism prior to this essay. All page numbers are references to the anthology Law and Morality, edited by David Dyzenhaus and Arthur Ripstein, and published by Univeristy of Toronto Press.
In 1969, Lon L. Fuller published The Morality of Law. In it, he attempted to provide a counterargument to H.L.A. Hart’s assertion, presented in Positivism and the Separation of Law and Morals and The Concept of Law, that there is no morality inherent to law (48). Fuller felt that the principles that are endemic to law, taken together, supercede the considerations of mere efficacy, and that their inclusion in the nature of law therefore points to a minimum standard of morality that is inherent in the law (90). He argued that the minimum standard of morality expresses itself in the form of reciprocity between government and governed (103). Therefore, Fuller set out to show that Hart misunderstood law as being a one-way projection of authority, in order to prove that there is indeed a connection between law and morality. However, as will be shown, this argument fails on three counts: firstly, Hart’s summary of the nature of law cannot be limited to a one-way projection of authority; secondly, laws that do not conform to the model of a one-way projection of authority do not have a necessary connection to morality; and that thirdly, as a general rule, it cannot be shown that there is a connection between any law and morality. Therefore, Fuller is not correct either in his assertion that Hart’s understanding of the nature of law amounts to a one-way projection of authority, or that there is no necessary connection between law and morality.
In arguing that legal positivism does not accurately describe law, Fuller points out two assumptions that he feels are inherent in the positivist philosophy. The second of these (being the more important of the two for the purposes of this essay) is the assumption that law is correctly perceived as a one-way projection of authority from the government onto the subjects of the law (95). Fuller describes law as being characteristically different than such a system, which he describes as one of “managerial direction.”(96) Fuller contends that, in such a system, the only principles that the government is obligated to take into consideration are those that ensure that the subjects of the law are capable of complying with the government’s orders (97).
Significantly, this leaves out two principles that Fuller feels are indispensable to a system of law: the principle of generality, and the principle of “congruence between official action and declared rule.”(102) A system of managerial direction that does not include these two principles is not capable of functioning as a system of law, because the subjects of the law have no guarantee that the law will be used in determining the government’s actions towards them (104). Conversely, entering into and maintaining a system of law requires at least a minimum level of reciprocity between government and governed; while Fuller hesitates to describe this arrangement as a contract, there is at least an expectation that the government will abide by the rules it sets out (Ibid.). Fuller understands this, not as a demand of efficacy in imposing order, but rather as a moral consideration with the purpose of moving from a managerial model to a system of law (103). This, claims Fuller, shows that the legal positivists, and H.L.A. Hart particularly, are wrong in their assumptions about law, and wrong in their conclusion that there is no necessary connection between law and morality (Ibid.).
In attempting to refute Hart’s description of law, Fuller first describes the distinction between law and the managerial model, and afterwards attempts to show that Hart’s understanding of law is based on the managerial model (102). To show this, Fuller cites portions of Hart’s work that deal with the principles of generality and “congruence between official action and declared rule.” (102) Fuller argues that, for Hart, the principle of generality is understood as nothing more than a method of imposing order (Ibid.). This is an aim of the government that requires compliance from those governed. In this sense, then Fuller argues that Hart understands generality only in terms of the managerial model (Ibid.). This argument also applies to Hart’s understanding of the principle of “congruence between official action and declared rule.” (103) Since these two principles are (in Fuller’s opinion) the only things that separate law from a system of managerial direction, Hart’s understanding of law is therefore based entirely on the managerial model (Ibid.). This means that Hart’s model is, in effect, a one-way projection of authority.
Hart sees the notion of law as a one-way projection of authority as being one of two main difficulties with the command model (47). Hart’s response to the concept of law as a one-way projection of authority is to define a distinction between command-like laws and “rules that confer rights.” (48) These rules, which allow people to enter into legal agreements with each other, cannot be understood as commands, since they demand nothing of the subjects of the law. Rather, they allow people to make use of law in going about their own business. Therefore, law in its entirety cannot be understood as the commands of an uncommanded commander. (Ibid.) This argument seems in many ways analogous to Fuller’s own argument in rejecting the one-way projection of authority, with the difference that Fuller does not distinguish between different types of laws (95). Instead, Fuller contends that all law is only properly understood as existing for the purpose of facilitating interaction between subjects of the law, rather than existing to effect the designs of the government. (Ibid.)
It is here than we see the conflict between the two arguments. Hart has not completely rejected the notion of laws that function in a manner similar to commands (48). Therefore, Fuller’s contention that Hart’s understanding of law stems from the managerial model is understandable when applied exclusively to sanction-based law. However, just as Hart argues that the command model cannot correctly describe all law, Fuller’s description of Hart’s argument does not correctly describe Hart’s understanding of all law. Specifically, this portion of Hart’s paper shows that, even if Hart’s understanding of sanction-based law could be understood as a one-way projection of authority, this is not the same as saying that his understanding of the nature of law in general is so restricted.
In his argument, Fuller attempted to show that the failure of the one-way projection of authority leads inevitably to what he calls the “inner morality of law” – in other words, it would be his contention that, if indeed it is the case that Hart’s argument incorporates the idea that laws (or at least, some types of law) exist to provide a legal framework for subjects of the law to conduct affairs with other subjects, then this means that Hart’s system of law has some minimum element of morality (94). This follows from the idea that, if a law is not a command, then the consideration of “efficacy” is meaningless, since there is no change in the behaviour of the populace that the government is trying to effect (97). Therefore, Fuller claims, the existence of these laws requires that the law have some minimal connection to morality.
Hart claims that laws that grant rights are no more necessarily moral than any other law (49). As an example, he cites a law that gives some subjects the right to own slaves (Ibid.). However, this example deals with the content of the law; Fuller’s argument deals with the form. Nevertheless, in order for Fuller’s argument to hold, it must be shown that it is somehow more moral to have a law with immoral content than to have no law, if the law conforms to the principles of generality and congruence between official action and declared rule.
The assumption made by Fuller is that, since the government is capable of imposing its will on the populace through a system of managerial direction, without incorporating the principles of generality and congruence between official action and declared rule into its edicts (which, he argues, actually impede efforts on the part of the government to control the populace,) the decision to institute a system of laws incorporating these principles is an inherently moral one (98). This system has some inner morality, according to Fuller, since it institutes a reciprocal relationship between government and governed, which acts to the benefit of those governed by giving them some assurance that the government will abide by the existing rules when dealing with them (Ibid.).
However, this is not necessarily an actual benefit in cases where the law does not function as a command. Where the law exists to prohibit certain actions, with the threat of sanctions if the law is violated, it is certainly to the citizens’ benefit if they are assured that they will not incur sanctions if they comply with the law. Moreover, giving due regard to the principles of generality and congruence between official action and declared rule could be considered to be a moral action, since it involves the government voluntarily limiting its own power to benefit the populace. However, in cases where the law deals with interactions between citizens, the government is merely specifying under what circumstances the government will support one or more of the parties involved. This does not necessarily confer any moral benefit. In the example of the law that grants certain subjects the right to own slaves, the principles of generality and congruence between official action and declared rule merely ensure that the government will always rule in favour of the slave owner. There is no benefit to the slave in knowing the law, and, while the slave owner may be said to benefit, the government cannot be considered to be engaging in a moral act when they confer this benefit.
This shows that there exist laws in Hart’s vision of law that are neither compatible with a one-way projection of authority nor possessed of any minimum moral content. However, in order to fully defend the separation thesis advanced by Hart, it is necessary to show that there is no necessary connection between any law and morality. Therefore, it is necessary to determine whether sanction-based laws have any necessary minimum connection to morality.
According to Fuller, Hart characterizes of the principles of generality and congruence between official actions and declared rule as a means of maintaining social order (102). The argument described above, which states that this leads to a one-way projection of authority, should still apply to Hart’s concept of sanction-based laws.
Hart does make an argument that these laws cannot be considered to be the commands of an uncommanded commander, since it is not the commander that people in fact obey. Instead, people acknowledge the validity of the process by which law is created and maintained, which in turn confers authority on whatever body is mandated by this process (47). Hart believes that the ultimate legal authority is the Rule of Recognition, which sets out a clear standard by which a law may recognized as being authoritative or not (71). Hart feels that this is not the same as authority being vested in a specific body, since the actions of this body are made authoritative by the Rule of Recognition (72). That is, there may be a convention that the laws passed by the government are authoritative, but this only shows that the government’s power stems from this convention.
However, this may still result in a one-way projection of authority. According to Fuller, a one-way projection of authority is present so long as there is no obligation on the part of the government to engage in a reciprocal relationship with those governed by the law (102). Hart imposes no such conditions on the Rule of Recognition; the Rule may declare a given body to be authoritative, but there is no requirement that this body conform with any considerations beyond those of mere efficacy. In other words, a government constituted under the Rule of Recognition should be able to govern by use of the managerial model alone (since it not obliged to create laws that confer rights,) in which case, if Fuller is right, it would indeed be operating under a one-way projection of authority. This cannot describe law in and of itself, contends Fuller; there must be some inclusion of a minimum standard of morality (95).
However, there is a crucial element of this argument that does not stand up to scrutiny. Fuller’s argument hinges on the assertion that the inclusion of the principles of generality and congruence between official action and declared rule in law is not morally neutral (98). The reason for this, as argued by Fuller, is that in incorporating these principles, the government is limiting its own power over those governed by the law, to the benefit of those governed (101). According to Fuller, this goes beyond the demands of mere efficacy, and indeed is sometimes counterproductive as far as efficacy is concerned (Ibid.). This means that the government has no self-interested motivation in including these principles.
However, a refutation of this notion is provided by Fuller himself:
“…if the citizen knew in advance that in dealing with him government would pay no attention to its own declared rules, he would have little incentive himself to abide by them.” (104)
Under such circumstances, it would seem that the government had not succeeded in creating an efficacious system of law. Fuller seems to be aware that this conclusion may be drawn, and states that this merely diminishes the distinction between efficacy and morality (94). However, what Fuller attempted to show in differentiating between the system of managerial direction and the system of law was that a system of managerial direction is at least as effective in imposing order in society as a system of law (100). This would mean that there is no conceivable selfish motivation for the government to include the principles of generality and congruence between official action and declared rule in its laws. However, Fuller’s own statement quite convincingly demonstrates that just such a motivation exists. In fact, Fuller seems to have met with failure on two counts. The second point was the stipulation that co-operation from the populace is a necessary prerequisite to a system of managerial direction (footnote, 105). The above quote seems to state that the citizen it fact has little reason to provide such co-operation.
In conclusion, then, it would seem that each of Fuller’s arguments against Hart has a corresponding refutation. Firstly, there exist laws that cannot be said to stem from a one-way projection of authority. Secondly, these laws cannot be shown to have a necessary connection to morality. Thirdly, in the general case, it cannot be shown that a system of law, even one in which reciprocity holds, has some minimal moral content. Therefore, it would seem that, not only has Fuller not been successful in proving that his own thesis statement is correct, but he has also failed in detracting from Hart’s thesis. In short, Hart’s account of the nature of law does not amount to a one-way projection of authority, and Hart’s assertion that there is no necessary connection between law and morality remains valid.