.\" ( The American Philosophical Association NelNsletter on Philosophy and LalN Richard Nunan, Editor Issue No. 96:1 Fall1996 focuses on the charge, made by Stanley Fish and others, that FROM THE EDITOR Hart's conception of primary rules is inherently defective because they cannot regulate social conduct without supplementation by secondary rules. Landers defends the contrary view by attributing a Wittgensteinian conception of After a long and productive life, Herbert Hart died on rules to Hart. December 19, 1992, at the age of 84. Two years later a The last two essays, Dan Wueste's "Hart-Fuller Debate second edition of his most influential work, The Concept of Revisited" and my own contribution, "Legal Moralism", move Law, appeared with his long awaited "Postscript", back from a focus on The Concept of Law posthumously edited by Penelope Bullock and Joseph Raz. to other aspects of Hart's legal philosophy. Wueste Tliis issue of the Newsletter on Philosophy and Law is examines one of the central questions of the dispute between devoted to a review of some of Hart's major contributions, Hart and Fuller: how it is that the law succesfully commands focusing particularly on the intellectual debates between Hart normative respect from the citizens it governs? Wueste and Ronald Dworkin, his student and successor to the Chair contends that Fuller, like Hart (and despite what Hart says of Jurisprudence at Oxford, between Hart and Lon Fuller of about Fuller's views), provides an account of how law Harvard University over the respective merits of a natural law regulates its own creation. Moreover, this account theory and Hart's brand of legal positivism, and between Hart incorporates a reliance on social or conventional morality and British jurist Patrick Devlin over the possibility and exhibited by most citizens. Wueste goes on to suggest that wisdom of legislating morality. Hart, somewhat inadvisedly, moves away from this social rule In "Hart's Legacy", this issue's opening article, Charles conception of rules of recognition to embrace a theory under Kelbley reviews Hart's attempt to separate descriptive and which only government officials need accept rules of normative questions we might ask about the law, and recognition. Wueste concludes with some speculation as to Dworkin's critique of that enterprise. Kelbley uses the why Hart chose this divergent path, and how it is Significant Supreme Court's 1986 decision to uphold Georgia's sodomy for understanding the Hart-Fuller debate today. law (Bowers v. Hardwick), together with the current legislative My contribution on the issue of legal moralism is a brief race to ban same-sex marriages, to illustrate the traditional literature survey with an eye towards the challenges of understanding of the difference between Hart's reliance on teaching that topiC given the scarcity of current material in rules and Dworkin's appeal to principles. print. There are, however, two especially good and relatively Where Kelbley focuses primarily on the original text of recent contributions, one on each side of this debate, to The Concept of Law and Dworkin's response to it, Wil which I devote some more extensive remarks: Joel WaJuchow argues thin Hart's 1994 "Postscript" confirms his Feinberg's Harmless Wrongdoing, and Robert George's own previous analysis of Hart's conception of secondary Making Men Moral. rules of recognition (in Inclusive Legal Positivism, Clarendon now to future Newsletter projects, topics and Press, 1994), according to which moral principles and values topic editors for the next three issues are as follows: may be included in the range of criteria which serve to determine what putative primary rules may count as valid Spring 97 laws. If Hart's account of secondary rules does not have to LEGAL ETHICS AND THE be restricted to content-neutral "pedigree criteria" delimiting AMERICAN JURY SYSTEM the legitimate forms of law-creation, then Dworkin's criticism Submission Deadline: December 15,1996 can be defused. Editor: Jeffrey Abramson Of course Waluchow's analysis of Hart's real views about Department of POlitics, Brandeis University the nature of secondary rules raises new questions about the 415 South S1. extent to which we can count Hart as a legal positivist. A Waltham, MA 02154-2700 partial answer to that question emerges in Scott Landers' [email protected] contribution, "The Primacy of Primary Rules". Landers (617) 736-2765 - 64 APA NEWSLETTERS, 96:1, FALL 1996 Endnotes 17. Ibid., 85. See also Hart, "Positivism and Separability: 603. Here too, it is plain that the acceptance of 1. H.LA Hart, "Positivism and the Separability of Law citizens is important. and Morals,' Harvard law Review 71 (1958), 603. 18. Hart, Concept, 110-11 (to insist that in a complex 2. Augustine The City of God, Bk iv, Ch iv. modern state both citizens and officials consciously accept 3. John Austin, The Province of Jurisprudence the rule of recognition "Would be to insist on a fiction"). Determined, H.LA Hart, ed..(London: Weidenfeld and 19. See Hart, Concept, 59. Compare, however, Rolf Nicholson, 1954; originally published in 1832). Lec. V, 185. Sartorius, "Positivism and the Foundations of Legal 186. Authority,' in Issues in Contemporary Legal Philosophy, Ruth 4. Hart, "Positivism and Separability," 600 (quoting J.C. Gavison, ed. (Oxford: Clarendon Press, 1987), 53 Gray. The Nature and SOUIC6S ofthe Law, 94 (1st ed. 1909) (suggesting that there is "a middle ground between the claim Sec. 213). that citizens accept the constitution in the same sense that 5. Lon L. Fuller. "Positivism and Fidelity to Law-A Reply officials do and the claim that they merely obey 'the law' that to Professor Hart: Harvard Law Review 71 (1958),639. the constitution validates"). 6. Lon L. Fuller. The Morality of Law. Revised Edition 20. Lon L Fuller, "Law as an Instrument of Social Control (New Haven: Yale University Press, 1969), 148. and Law as a Facilitation of Human Interaction," Brigham 7. H.l.A. Hart. Book Review. Harvard Law' Review 78 Young University Law Review _ (1975),89-96. at 92. (1965) (reviewing LL Fuller. The Morality of Law (1964», 21. Hart. 'Positivism and Separability,' 57 (quoted above 1292. in text following note 17). 8. See Fuller, Morality. Ch. 2. especially 39, 33-38. 46- 91. The prinCiples emerge in a story about a hapless King Rex who tries but fails to make law. LEGAL MORALISM: 9. Hart, Review of The Morality of Law, 1284; but FROM HART AND DEVLIN compare 1291 n.9 (noting that Bentham urged these ___ TO FEINBERG AND GEORGE ___ principles on his contemporaries in the name of utility). 10. See Wueste, "Fuller's Processual Philosophy of Richard Nunan Law," Comell Law Review 71 (1986). 1214-17 (discussing Hart's criticism of Fuller'S morality designation). Department of Philosophy & Religious Studies 11. Lon L Fuller. The Principles ofSocial Order, Kenneth College of Charleston I. Winston, ed. (Durham, North Carolina: Duke University Press, 1981). 177. In 1959 H. L. A. Hart published "Immorality and Treason" 12. See Wueste. 1217-1229 (arguing that Fuller's in response to Patrick Devlin's 1958 Maccabaean Lecture to internal morality of law is a morality of interaction, in the British Academy. "The Enforcement of Morals." There particular. a role morality). Fuller spoke of the principles of Devlin contended that the government-appointed Committee legality in various ways. Most famously, he referred to them on Homosexual Offenses and Prostitution was mistaken as the morality internal to law. Interestingly, in Anatomy of when it recommended a year earlier that Parliament should the Law (1968), published between the original (1964) and decriminalize homosexual acts between consenting adults on revised (1969) editions of The Morality of Law. Fuller calls the ground that "there must remain a realm of private morality them "the implicit laws of lawmaking." See Kenneth I. and immorality which is, in brief and crude terms, not the Winston. "Editor's Note," in Fuller, Principles. 158-59. law's business." (Report of the Wolfenden Committee, para. 13. Thus, for example. Fuller claims that throughout The 61) On Devlin's view, ·one cannot talk sensibly of a public Concept of Law Hart uses "the rule of recognition ... to give and private morality ... Morality is a sphere in which there is a neat juristiC answers to questions that are essentially public interest and a private interest, often in conflict, and the questions of sociological fact." Fuller. Morality, 141. problem is to reconcile the two." (Devlin [1959], 16) Consequently, legal moralism is legitimate public policy: the 14. H.l.A. Hart. The Concept ofLaw (Oxford: Clarendon Press, 1961),85. coercive power of the criminal law can sometimes be used to 15. Philip Soper, A Theory of Law (Cambridge: Harvard enforce the settled moral convictions of a society. even when University Press, 1984), 172 n. 22; and see Roscoe E. Hill, the prohibited behavior takes place behind closed doors, "Legal Validity and Legal Obligation," Yale Law Journal 80 involving only mentally competent consenting adults. There (1970),47. is no principled way of demarcating a sphere of private 16. Hart, Concept, 56; and see 93, 97-98 (identifying this morality immune from state intervention: rule as a rule of recognition). The error of jurisprudence in the Wolfenden Report is caused by the search for some single principle to - APA NEWSLETIERS, 96:1, FALL 1996 65 explain the division between crime and sin. The democratic sensibilities (Devlin (1962)), Hart elaborated his Report finds it in the principle that the criminal law views in the Harry Camp lectures delivered at Stanford exists for the protection of individuals; on this University in 1962, and subsequently published as the short principle fornication in private between consenting classic, Law, Liberty, and Morality: adults is outside the law ...But the true principle is that the law exists for the protection of society.