DOCSLIB.ORG

Legal Positivism and the Rule of Law: the Hartian Response to Fuller's

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Legal Positivism and the Rule of Law: the Hartian Response to Fuller's Legal Positivism and the Rule of Law: the Hartian Response to Fuller’s Challenge by Mark John Bennett A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Graduate Department of Law University of Toronto © Copyright by Mark John Bennett 2013 Legal Positivism and the Rule of Law: the Hartian Response to Fuller’s Challenge Doctor of Juridical Science Mark John Bennett Faculty of Law University of Toronto 2013 Abstract This study analyses the way that legal positivists from HLA Hart onwards have responded to Lon L Fuller’s challenge to positivism from the idea of the rule of law. The main thesis is that Hart and contemporary legal positivists working in the Hartian tradition have yet to adequately respond to Fuller’s Challenge. I argue that the reason for this is the approach they take to dealing with Fuller’s principles of the rule of law, which either (i) proceeds on the basis of the positivist perspective without engaging with Fuller’s wider anti-positivist arguments, or else (ii) accepts Fuller’s claim that the rule of law is part of our concept of law but does not acknowledge any effect of this on what determines legal validity (the content of legal norms). In both cases, I argue that tensions and problems result from a lack of engagement with Fuller’s anti-positivism. On the one hand, positivists have failed to show why their account of the nature of law better reflects our understanding of law than Fuller’s. On the other, the concessions that positivists have made to Fuller’s arguments are often detached from other elements in their theories, raising the question of whether the positivist response to Fuller is coherent. ii In addition, by closely analysing the major positivist accounts of the rule of law, this study challenges a number of orthodox interpretations that confuse our understanding of the positivist response to Fuller. I show that most positivists accept that there is something morally valuable about a legal system’s conformity to the principles of the rule of law, and that there is always some kind of at least minimal conformity to those principles in any legal system. By noticing what concessions positivists have made to Fuller’s understanding of the rule of law, I aim to both (i) shift the debate to the remaining disputes with the Hartian positivists, particularly on issues such as the ‘derivative approach’ and the ‘validity Social thesis’, and (ii) identify areas of fruitful engagement with Fuller, such as the question of judges’ moral obligations to law. iii Acknowledgements Thank you to: My supervisor David Dyzenhaus, who always demanded the best argument I could make. The members of my committee, Arthur Ripstein and Hamish Stewart, and to Simone Chambers who was previously on my committee. William Lucy, my external examiner, and Vincent Chiao, my internal examiner, for raising important further questions at the oral examination. Rayner Thwaites, for unwavering support and sage advice. Julia Hall, for solving many problems. The Connaught Fund at the University of Toronto, for financial assistance. Victoria University Faculty of Law, for travel assistance. Family, friends, and colleagues, in New Zealand and Canada, for many kinds of support and good cheer. Charley, for a new kind of joy amidst the toil. And most of all Sarah, who knows exactly what it took and what it means. iv Contents Abstract ................................................................................................................................................... ii Acknowledgements ................................................................................................................................ iv Contents .................................................................................................................................................. v Introduction ............................................................................................................................................ 1 Legal Positivism and the Rule of Law: the Hartian Response to Fuller’s Challenge ................................ 1 Chapter 1: The 1958 Hart–Fuller debate ................................................................................................ 8 1.1 Introduction ................................................................................................................................ 8 1.2 Hart’s Holmes lecture: the meaning of the separation of law and morals ................................. 9 1.2.1 Restating the positivist separation thesis ........................................................................... 9 1.2.2 The ‘utilitarian distinction’ ................................................................................................ 10 1.2.3 Legal positivism against natural law ................................................................................. 12 1.2.4 Positivism in practice: Nazi Germany and its aftermath ................................................... 18 1.3 Fuller’s response – the inner morality of law............................................................................ 21 1.3.1 Fidelity to law and the concept of law .............................................................................. 21 1.3.2 Fuller’s conceptual scheme ............................................................................................... 24 1.3.3 The morality of law itself ................................................................................................... 24 1.3.4 Fidelity to law and injustice ............................................................................................... 26 1.3.5 Fidelity to law and the Nazi regime ................................................................................... 28 1.4 Does Hart offer an account of fidelity to law? .......................................................................... 33 1.4.1 Hart’s contradiction revisited ............................................................................................ 37 1.5 Conclusion: an exchange yet to become a debate on the rule of law ...................................... 39 Chapter 2: Legality in The Concept of Law and The Morality of Law .................................................... 43 2.1 Introduction .............................................................................................................................. 43 2.2 Hart’s The Concept of Law and Fuller’s Challenge .................................................................... 44 2.2.1 Hart on the concept of law................................................................................................ 45 2.2.2 Internal point of view as law’s moral foundation? ........................................................... 48 2.2.3 Classical natural law challenges to legal positivism .......................................................... 50 2.2.4 Modern natural law challenges ......................................................................................... 51 v 2.2.5 Revisiting the Nazi example .............................................................................................. 53 2.2.6 Hart’s discussion of Fuller’s internal morality of law ........................................................ 56 2.3 Fuller’s rejoinder – the morality of law ..................................................................................... 58 2.3.1 Law as a moral ideal .......................................................................................................... 59 2.3.2 The principles of the rule of law ........................................................................................ 63 2.3.3 The Principles Explained .................................................................................................... 65 2.3.4 The Internal Morality as Duty and as Aspiration ............................................................... 71 2.4 The Moral Value of Formal Legality .......................................................................................... 73 2.4.1 An internal morality of law? .............................................................................................. 73 2.4.2 The moral value of the rule of law .................................................................................... 76 2.5 Fuller’s Critique of Hart and his reply to critics ......................................................................... 77 2.5.1 The critique of Hart ........................................................................................................... 77 2.5.2 The reply to critics ............................................................................................................. 80 2.5.3 Managerial order and legal order ..................................................................................... 82 2.6 Conclusion ................................................................................................................................. 86 Chapter 3: The Rule of Law in Hart’s Review and Later Writings ......................................................... 88 3.1 Introduction .............................................................................................................................. 88 3.2 Hart on the moral value of the rule of law ................................................................................ 88 3.3 Hart’s review of The Morality of Law .......................................................................................
Load more

Recommended publications
  • Legal Positivism: an Analysis of Austin and Bentham
    INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES, VOLUME 1, ISSUE 6 LEGAL POSITIVISM: AN ANALYSIS OF AUSTIN AND BENTHAM Authors PRAGALBH BHARDWAJ National Law University, Odisha BH-1, National Law University, Odisha, Sector 13, CDA, Cuttack, Odisha. Country-India [email protected] RISHI RAJ National Law University, Odisha BH-1, National Law University, Odisha, Sector 13, CDA, Cuttack, Odisha. Country-India [email protected] 1 INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES, VOLUME 1, ISSUE 6 Abstract Key words- Austin, Bentham, Criticism of Positivist School, Indian Perspective of Positivist School, Legal Positivist School. The school of Legal Positivism developed over the period of 18th and 19th century through the works of influential jurists such as John Austin and Jeremey Bentham. The works of these two great jurists was mainly responsible for the Legal Positivist School to acquire such importance in the field of legal jurisprudence. Their work was taken forward by jurists such as H.L.A.Hart. Although not free from shortcomings, the Legal Positivist School is regarded as the most influential school of thought in jurisprudence. Judges have based their decisions on this school of thought across various countries, including India. Indian Judges have been greatly influenced by the thinking of legal positivists and have applied their jurisprudence while giving landmark judgements such as A.K.Gopalan v. State of Madras to name one of them. The basic idea behind legal positivists was that they considered law as it is and not what it ought to be. They separated moral principles from legal principles.
    [Show full text]
  • The Concept of Law Revisited [Book Review of the Concept of Law, Second Edition, by H
    Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1997 The Concept of Law Revisited [Book Review of The Concept of Law, Second Edition, by H. L. A. Hart] Leslie Green Osgoode Hall Law School of York University Source Publication: Michigan Law Review. Volume 94, Number 6 (1996), p. 1687-1757. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Green, Leslie. "The Concept of Law Revisited [Book Review of The Concept of Law, Second Edition, by H. L. A. Hart]." Michigan Law Review 94.6 (1996): 1687-1757. This Book Review is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. THE CONCEPT OF LAW REVISITED Leslie Green* THE CONCEPT OF LAW. Second Edition. By H.L.A. Hart. With a Postscript edited by Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon Press. 1994. Pp. xii, 315. $26. Law is a social construction. It is a historically contingent fea- ture of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and en- force the primary rules.
    [Show full text]
  • Do Children Have Rights?
    Do Children Have Rights? Five theoretical reflections on children's rights Mhairi Catherine Cowden A thesis submitted for the degree of Doctor of Philosophy of the Australian National University June 2012 Declaration This work is the result of original research carried out by the author. Where joint research was undertaken during the candidature and used in this thesis, it has been acknowledged as such in the body of the text. The applicable research is listed below, alongside the contribution from the author. Chapter Three: the paper 'Capacity' and 'Competence' in the Language of Children's Rights is co-authored with Joanne C Lau (Australian National University). The paper constitutes equal contribution between authors in conceiving the core argument and writing the text. Mhairi Catherine Cowden 29th June 2012 Acknowledgments The idea for this thesis first arose after I was asked several years ago to write a brief article for the UNICEF newsletter entitled, 'What are rights and why children have them'. After doing some preliminary reading I found that surprisingly there was a lack of consensus on either question. It struck me that without such foundational theory that rhetoric to secure and expand children's rights seemed fairly empty. A country built on shaky foundations. Bringing this project to fruition, however, was a lot harder than identifying the problem. I could not have done it without the help of many people. First thanks must go to my principal supervisor, Keith Dowding. Without his help and guidance I would never have read Hohfeld nor got past the first paper of this thesis.
    [Show full text]
  • Satirical Legal Studies: from the Legists to the Lizard
    Michigan Law Review Volume 103 Issue 3 2004 Satirical Legal Studies: From the Legists to the Lizard Peter Goodrich Benjamin N. Cardozo School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Law and Philosophy Commons, Law and Society Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation Peter Goodrich, Satirical Legal Studies: From the Legists to the Lizard, 103 MICH. L. REV. 397 (2004). Available at: https://repository.law.umich.edu/mlr/vol103/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. SATIRICAL LEGAL STUDIES: FROM THE LEGISTS TO THE LIZARD Peter Goodrich* ANALYTICAL TABLE OF CONTENTS INTRODUCTION .................... .............................................. ........ .... ..... ..... 399 I. FRAGMENTA ANTIQUITATIS (THE ENDURING TRADITION) .. 415 A. The Civilian Tradition .......................................................... 416 B. The Sermon on the Laws ......................... ............................. 419 C. Satirical Themes ....................... ............................................. 422 1. Personification .... ............................................................. 422 2. Novelty .......................................
    [Show full text]
  • The Concept of Law Revisited
    Michigan Law Review Volume 94 Issue 6 1996 The Concept of Law Revisited Leslie Green Osgoode Hall Law School, York University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Public Law and Legal Theory Commons Recommended Citation Leslie Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687 (1996). Available at: https://repository.law.umich.edu/mlr/vol94/iss6/15 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IBE CONCEPT OF LAW REVISITED Leslie Green* THE CONCEPT OF LAW. Second Edition. By H.L.A. Hart. With a Postscript edited by Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon Press. 1994. Pp. xii, 315. $26. Law is a social construction. It is a historically contingent fea­ ture of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and en­ force the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration.
    [Show full text]
  • Ross and Olivecrona on Rights
    Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2009 Ross and Olivecrona on Rights Brian H. Bix University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Brian H. Bix, Ross and Olivecrona on Rights, 34 AUSTL. J. LEG. PHIL. 103 (2009), available at https://scholarship.law.umn.edu/faculty_articles/211. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Ross and Olivecrona on Rights BRIAN H. BIX1 Introduction The Scandinavian legal realists, critically-inclined theorists from Denmark, Norway, and Sweden, who wrote in the early and middle decades of the 20t century,2 are not as widely read as they once were in Britain, and they seemed never to have received much attention in the United States. This is unfortunate, as the work of those theorists, at their best, is as sharp in its criticisms and as sophisticated philosophically as anything written by the better known (at least better known in Britain and the United States) American legal realists, who were writing at roughly the same time. The focus of the present article, Alf Ross and Karl Olivecrona, were arguably the most accessible of the Scandinavian legal realists, with their clear prose, straight- forward style of argumentation, and the availability of a number of works in English.
    [Show full text]
  • Moral Pluralism
    Moral Pluralism Time: Friday 3pm to 5:30pm Location: online (Zoom link will be available on Canvas) Instructor: Julia Netter julia [email protected] http://julianetter.de/pols0920e Moral pluralism is an unmistakable characteristic of modern liberal societies. Even though the dire conflicts of religion which fuelled wars and civil unrest appear to be a thing of the past, fundamental moral disagreements are still plentiful today. Now as then, these disagreements expose tensions among the core of ideas upon which liberal societies are built. This course explores moral pluralism through the lens of classic and contemporary works in political philosophy and engages with questions such as: should the state be neutral in relation to different religious and moral convictions? Are there some values which we can expect all citizens to share despite their deep disagreements? How should citizens engage with each other when they debate controversial moral questions in the public forum? Approach and Objectives This course explores the challenges of moral pluralism in liberal societies through the lens of analytical political philosophy. Over the course of the semester, we will engage with a range of key texts and debates relating to liberalism and pluralism. The aim of this course is to equip you with the knowledge and skills to delve deeper into these topics and connect them to each other, as well as to political debates beyond the classroom. More specifically, this course will help you learn to think philosophically about these topics. You will develop the skills necessary for constructing critical arguments in political philosophy, and will apply them both orally and in writing.
    [Show full text]
  • Public Law Liberty, the Archetype and Diversity: a Philosophy of Judging
    Page1 Public Law 2010 Liberty, the archetype and diversity: a philosophy of judging Terence Etherton Subject: Administration of justice Keywords: Human rights; Integrity; Judicial decision-making; Jurisprudence; Justice; Supreme Court Legislation: Human Rights Act 1998 *P.L. 727 A conscientious judge always wishes to reach the correct decision. It is important for us that the judge does so for we wish to live in a just society. It is usually said to be a critical feature of the advanced liberal democracy, which is Great Britain today, as of other such democracies, that it is governed by the rule of law. There is no fixed meaning to that term,1 but it would at the least carry for most people the idea of law that is ascertainable and consistently and fairly applied. How can we be certain, however, that the correct decision, that is to say, the best possible decision, or at least a legitimate one, has been reached in a case in which different judges of the highest ability, knowledge and sensitivity disagree on the outcome, and either outcome would be regarded by some other judges, lawyers and citizens as correct2 ? We are not so naive as to think that difficult and important legal decisions are merely the result of a process in the nature of an algorithm. Is there, then, an analytical and adjudicative approach that will enable the conscientious judge to be confident that the decision reached is the best possible decision, and certainly a legitimate one, even if judicial colleagues, politicians and other citizens disagree with it? These are not, of course, new questions.
    [Show full text]
  • Positivism and the Inseparability of Law and Morals
    \\server05\productn\N\NYU\83-4\NYU403.txt unknown Seq: 1 25-SEP-08 12:20 POSITIVISM AND THE INSEPARABILITY OF LAW AND MORALS LESLIE GREEN* H.L.A. Hart made a famous claim that legal positivism somehow involves a “sepa- ration of law and morals.” This Article seeks to clarify and assess this claim, con- tending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connec- tions between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually signif- icant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. INTRODUCTION H.L.A. Hart’s Holmes Lecture gave new expression to the old idea that legal systems comprise positive law only, a thesis usually labeled “legal positivism.” Hart did this in two ways. First, he disen- tangled the idea from the independent and distracting projects of the imperative theory of law, the analytic study of legal language, and non-cognitivist moral philosophies. Hart’s second move was to offer a fresh characterization of the thesis.
    [Show full text]
  • Hart, Austin, and the Concept of Legal Sanctions
    Hart, Austin, and the Concept of a Legal System: The Primacy of Sanctions In 1961, H. L. A. Hart published The Concept of Law, his most extensive and systematic essay in general jurisprudence.' Hart's book immediately received widespread critical attention.2 Today, The Con- cept of Law is generally regarded as an original and important work. Indeed, this is too cautious a claim: The Concept of Law has become an established classic. The core of Hart's argument is addressed to three related questions: What is a legal rule? What are the points of difference and similarity between law and morality? What is a legal system?3 This Note is concerned with Hart's answer to the last of these three questions, with his attempt, in The Concept of Law, to build up a coherent and satisfying picture of what a municipal 4 legal system is. In the opening chapter of The Concept of Law, Hart states that the purpose of his book is "to advance legal theory by providing an im- proved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences be- tween law, coercion, and morality as types of social phenomena."' Whether Hart's "improved analysis" yields anything as precise and unequivocal as a definition of what a legal system is-indeed, whether such a definition is possible at all-have been much-disputed questions., Hart himself appears to have been somewhat skeptical in this regard. At one point, he even offers several reasons for believing that "nothing 1.
    [Show full text]
  • Nasty Women and the Rule of Law
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of San Francisco Nasty Women and the Rule of Law By ALICE WOOLLEY and ELYSA DARLING* “Such a nasty woman.”1 “There’s just something about her that feels castrating, overbear- ing, and scary.”2 “She undoubtedly suffered in the trial . but she was not likable.”3 “Marie Henein is a successful female lawyer at the top of her pro- fession. Total bitch.”4 “Not a feminist.”5 Introduction NO ONE ENTERS THE LEGAL PROFESSION expecting social pop- ularity—or, at least, no one should.6 But recent events create the im- * Alice Woolley is Professor of Law at the Faculty of Law, University of Calgary, and President of the International Association of Legal Ethics. Elysa Darling graduated from the University of Calgary in 2016, and currently practices law in Calgary. The authors would like to thank Amy Salyzyn and Alex Darling for their helpful comments and feedback, and Joshua Davis and the University of San Francisco School of Law for including this paper in the 2017 Workshop on Jurisprudence and Legal Ethics. 1. Daniella Diaz, Trump calls Clinton ‘a nasty woman’, CNN (Oct. 20, 2016), http:// www.cnn.com/2016/10/19/politics/donald-trump-hillary-clinton-nasty-woman [https:// perma.cc/U94K-H8L3]. 2. Yvonne A. Tamayo, Rhymes with Rich: Power, Law and the Bitch, 21 ST. THOMAS L. REV. 281, 286 (2009) (quoting Tucker Carlson on Hillary Clinton during her 2007-2008 run for the Democratic presidential nomination). 3.
    [Show full text]
  • The Rule of Law in European Jurisprudence
    Strasbourg, 29 May 2009 CDL-DEM(2009)006* Study 512/2009 Eng.Only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) THE RULE OF LAW IN EUROPEAN JURISPRUDENCE by Mr Martin LOUGHLIN (Expert, United Kingdom) *This document has been classified restricted on the date of issue. Unless the Venice Commission decides otherwise, it will be declassified a year after its issue according to the rules set up in Resolution CM/Res(2001)6 on access to Council of Europe documents. This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-DEM(2009)006 - 2 - Modern constitutional development is driven by a dynamic between power and liberty: since the powers of government in the modern era are invariably extensive, it is accepted that, if the key political value of liberty is to be maintained, these powers must be confined, channelled and checked. This is the basic purpose underpinning modern written constitutions. Written constitutions exist to maintain a balance between the grant and institutionalization of governmental power and the preservation of the liberties of the individual. For this critical function of modern constitutions to be realized, three basic principles must be accepted. The first is that the constitution must be recognized to be the medium through which all governmental power is to be exercised; this is the principle of constitutional supremacy. The second principle is that the law of the constitution must be acknowledged as the fundamental law of the land. And the third is that, with the acceptance of constitutional law as fundamental law, the judiciary – as interpreters of constitutional law – must be accepted as being the institution that acts as the ultimate guardian of the constitution.
    [Show full text]