The Hart-Fuller Debate: Law and Morality

 Debate primarily concerned with (1) the problem of immoral laws and (2) the question
of legal interpretation. Ultimately, the debate at its core is about the separability of law
and morality.
o Positivists such as Hart argue the law is separate from morality, whereas Fuller
argues morality is from where law derives its binding power.

Immoral Laws
 Hart argues one can determine the existence of a legal system without reference to
morality. He uses the example of Nazi Germany to conclude that immoral legal systems
are still legal systems; whether one obeys the law is a separate issue and a moral question.
o The existence of a legal system is dependent on whether the legal system has
secondary rules. It is a social enquiry based on observable facts not a moral
evaluation.
 In Fuller’s view, the legal system has an intrinsic purpose to subject human conduct
to the governance of rules. Thus, the law possesses an internal morality which will
pull legal decisions towards moral “goodness.” This is seen as a form of procedural
morality within the law.
o Fuller distinguishes such systems from ‘perverted regimes’ such as Nazi
Germany. He argues a legal system will fail to be law if;
 There are only ad hoc decisions, the rules are secret, rules are
retrospective, rules are incomprehensible, rules are contradictions, rules
require conduct beyond the capacity of the subject, and rules frequently
change, lack of convergence between
adjudication/legislation/administration.
 Fuller concluded that governance through law, meaning general rules
that satisfy the principles of legality, is more likely to produce a good
order.

Indeterminacy in the Law

 Hart argues that legal interpretation involves the discerning of meaning of language.
Legal uncertainty arises due to the open texture of language, when words are capable
of multiple meanings. Therefore, language has a core of settled meaning (where legal
interpretation is a mechanical exercise) and a penumbra of uncertainty (where legal
ambiguity arises);
o In cases where the meaning of words is determinate, it is the judge’s role to
simply apply the law.
o If the meaning of words is uncertain, it is the judge’s role to administer and
develop the law.
 Fuller argued the law is intrinsically purposive and therefore value laden and moral.
o Therefore, legal interpretation is a purposive exercise of statutory interpretation.
The judge does not go beyond law but looks at the intrinsic purpose of the law
itself.
o Fuller argued there was no distinction between legal and non-legal arguments
because the criteria are too complex and are often moral.
o The judge therefore is a decision-finder, not necessarily a decision-maker. This
links Fuller to the natural law tradition and to Dworkin’s anti-positivism.
Criticisms
 Neither scholar answers the preliminary questions to the debate such as offering a
definition of morality and law and whose morality is being discussed. They engage as if
they both assume a common ground of what morality is and what it constitutes.
 Hart assumes an effective legal system is a liberal legal system; one which prescribes to a
particular minimum of moral content concerning free and critical debate. Fuller takes a
similar position on Western legal systems, however argues this point in a different way.
 It is unclear whose moral purpose Fuller refers to in his theory of adjudication.
Underlying his theory is an assumption that legislation always has a uniform purpose.

Dworkin and Natural Law

 Dworkin follows from Fuller’s argument and concludes that the role of adjudication in
hard cases is to find the best justification in principles of political morality.
o The judge must attempt to fit the decision to the data it interprets in its best
light in the sense that it comes as close to the correct ideals of a just legal system
as possible.
 This explains how judges may reach different conclusions; each judge
might have a different interpretation of what constitutes best fit or more
precisely because they bring differing background theories of political
morality to their interpretations.
o This does not allow judges to make decisions solely based on their own personal
moral convictions. Judges are constrained by the past and decisions should be
made consistently with principle so that the law is coherent.
 Naturalism recognises that communities have political orders. People in a society have
political rights by virtue of the political history which constitutes this political order.
o At its core, naturalism is a theory about judicial rights.

Criticisms of Dworkin
 Dworkin’s theory of natural law breaks down Hart’s distinctions between legal and moral
obligations. In Dworkin’s theory, moral obligations (political morality) may have legal
content.
o However, Dworkin also does not define what kind of morality he is writing
about. His theory functions more apply in the context of the US with a
constitutional bill of rights and strong judicial review, however it is not so
effective in other societies.
 In Australia, Dworkin’s theory could include legislative presumptions
and fundamental rights implied in the constitution.
o Natural law theory has been criticised as undemocratic as it allows the judge to
override the legislature, the domain of politics. However, these criticism conflate
theories about judicial rights with arguments for strong judicial review whilst
ignoring the reality that these issues only arise when parliament’s intentions are
ambiguous. There are certain legislative presumptions concerning rights
recognised in the common law which seek to give effect to parliament’s
intentions in a positive way, rather than invalidate otherwise valid legislation.
 However, there are dangers inherent in a morally charged view of the
common law as this could lead to excessive activism. Thus, judges are
constrained by rules and precedent.
 In the majority of cases the legal rules are determinate. These theories
are theories of appellate decision-making.
Legal Realism and Critical Legal Studies
Llewellyn and Adjudication
 Legal Realists such as Llewellyn view the law as being rationally indeterminate
o Rules on their own do not determine the outcome but rules constrain the range
of outcomes available.
o Within these constrains multiple ‘correct’ conclusions are available, although
some are more probable than others. These conclusions represent differing ways
of applying precedent to the given facts.
 Llewellyn therefore asks which correct decisions will judges select and why?
o This will depend on (1) the current tradition of the court, (2) the current
temper of the court and (3) the sense of the situation as the court sees that
sense.
o Llewellyn argues the third of these criteria is the most influential.
 In six out of 10 appellate cases the court applies precedent automatically.
Difficult cases arise where the sense of the situation is unclear and
these precedents do not line up clearly.
 Technical leeways correctly available when the sense of the situation call
for their use are only available when the sense of the situation and the
facts call for their use cease to be available unless used in furtherance of
what the court sees as such sense. Motive then becomes a factor in
determining what techniques are correct e.g. a sense of conscience,
judicial responsibility or uprightness.
 The greater the felt need, because of felt sense, the wider is the
leeway correctly and properly available in reshaping an authority.
o The kinds of sense that judges might feel need to be distinguished;
 The sense of the type of situation
 Following this sense is advisable because it leads judges to think
critically about the rules in a broad sense while setting aside
particular emotional differences and sympathy for the litigants.
This avoids the notion that ‘bad law makes hard cases.’
 The sense of the controversy between particular litigants
 Following this sense is dangerous because ‘hard cases make bad
law;’ finding a leeway in this case only leads to a “complicated
multiplicity of refinement and distinction.”
o In cases, judges have leeway to;
 Narrow or avoid precedent
 Or expand and develop existing precedent
 Llewellyn’s ‘thrust and parry’ theory of statutory interpretation;
o A statute cannot go beyond its text, but to effect its purpose this may be
appropriate.
o Statutes in derogation of common law rights will not be extended but will be
liberally construed if their nature is remedial.
o Statutes are to be read in light of the common law but statute supersedes common
law which is inconsistent or if the statute is a revision of the body of common
law.
o If the language is unambiguous it must be given effect and so on.