《法学基础理论》学习资料：Positivism and Fidelity to Law A Reply to Professor Hart.pdf

POSITTVISM AND FIDELITY TO LAW A REPLY TO PROFESSOR HART Lon L. fuller Rephrasing th onof“ law and morals”" in terms of“ order and good order criticizes Professor H. L. A. Hart for of order"necessary to the creation of all law. He then rejects Professor Hart's theory of statutory interpretation on the ground that wee seek the objectives of entire provisions rather than the meanings of individual words which are ave Pt RoFESSOR hART has made an enduring contribution to the literature of legal philosophy. I doubt if the issues he dis- cusses will ever again assume quite the form they had before be- ing touched by his analytical powers. His argument is no mere restatement of Bentham, Austin, Gray, and Holmes. Their views receive in his exposition a new clarity and a new depth that are I must confess that when i first encountered the thoughts of Professor Hart's essay, his argument seemed to me to suffer from a deep inner contradiction. On the one hand, he rejects emphat- ically any confusion of“‘ what is”with“ what ought to be.”He will tolerate no "merger"of law and conceptions of what law ought to be, but at the most an antiseptic "intersection. Intelli gible communication on any subject, he seems to imply, becomes 4 possible if we leave it uncertain whether we are talking about hat is”or“ what ought to be.” Yet it was precisely this uncer- tainty about Professor Hart's own argument which made it diffi- cult for me at first to follow the thread of his thought. At times saying that the distinction between law and morality is something that exists, and will continue to exist, how ever we may talk about it. It expresses a reality which, whethe we like it or not, we must accept if we are to avoid talking non- ense. At other times, he seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a"precious moral Carter Professor of General Jurisprudence, Harvard Law School. A B, Stan ford, I924, J D, I926

POSITIVISM AND FIDELITY TO LAWA REPLY TO PROFESSOR HART Lon L. Fuller * Rephrasing the question of "law and morals" in terms of "order and good order," Professor Fuller criticizes Professor H. L. A. Hart for ignoring the internal "morality of order" necessary to the creation of all law. He then rejects Professor Hart's theory of statutory interpretation on the ground that we seek the objectives of entire provisions rather than the meanings of individual words which are claimed to have "standard instances." ROFESSOR HART has made an enduring contribution to the literature of legal philosophy. I doubt if the issues he discusses will ever again assume quite the form they had before being touched by his analytical powers. His argument is no mere restatement of Bentham, Austin, Gray, and Holmes. Their views receive in his exposition a new clarity and a new depth that are uniquely his own. I must confess that when I first encountered the thoughts of Professor Hart's essay, his argument seemed to me to suffer from a deep inner contradiction. On the one hand, he rejects emphatically any confusion of "what is" with "what ought to be." He will tolerate no "merger" of law and conceptions of what law ought to be, but at the most an antiseptic "intersection." Intelligible communication on any subject, he seems to imply, becomes impossible if we leave it uncertain whether we are talking about "what is" or "what ought to be." Yet it was precisely this uncertainty about Professor Hart's own argument which made it difficult for me at first to follow the thread of his thought. At times he seemed to be saying that the distinction between law and morality is something that exists, and will continue to exist, however we may talk about it. It expresses a reality which, whether we like it or not, we must accept if we are to avoid talking nonsense. At other times, he seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a "precious moral * Carter Professor of General Jurisprudence, Harvard Law School. A.B., Stanford, 1924, J.D., 1926. 630

FIDELITY TO LAW ideal, "that of fidelity to law. It is not clear, in other words whether in Professor Hart's own thinking the distinction between law and morality simply"is,” or is something that“ ought to be” and that we should join with him in helping to create and maintain. These were the perplexities I had about Professor Hart's argu- ment when i first encountered it. but on reflection i am sure any criticism of his essay as being self-contradictory would be oth unfair and unprofitable There is no reason why the argu ment for a strict separation of law and morality cannot be rested on the double ground that this separation serves both intellectual clarity and moral integrity. If there are certain difficulties in bringing these two lines of reasoning into proper relation to one another, these difficulties affect also the position of those who reject the views of Austin, Gray, and Holmes. For those of us who find the " positivist position unacceptable do ourselves rest our argument on the double ground that its intellectual clarity is specious and that its effects are, or may be, harmful. On the ne hand, we assert that Austins definition of law, for example violates the reality it purports to describe. Being false in fact it cannot serve effectively what Kelsen calls "an interest of cog nition On the other hand we assert that under some condi tions the same conception of law may become dangerous, since in human affairs what men mistakenly accept as real tends, by the very act of their acceptance, to become real. It is a cardinal virtue of Professor Hart's argument that for the first time it opens the way for a truly profitable exchange of views between those whose differences center on the distinction between law and morality. Hitherto there has been no real joinder of issue between the opposing camps. On the one side, we en counter a series of definitional fiats. a rule of law is -that is to it really and simply and always is - the command of a sov ereign,a rule laid down by a judge a prediction of the future incidence of state force, a pattern of official behavior, etc.When we ask what purpose these definitions serve we receive the an- swer,"Why, no purpose, except to describe accurately the social reality that corresponds to the word law. "7 When we reply, But it doesnt look like that to me, the answer comes back, <Well. it does to me. There the matter has to rest This state of affairs has been most unsatisfactory for those of that“ positivistic” theories have had a distorting effect on the aims of legal philosophy our dissatisfac-

FIDELITY TO LAW ideal," that of fidelity to law. It is not clear, in other words, whether in Professor Hart's own thinking the distinction between law and morality simply "is," or is something that "ought to be" and that we should join with him in helping to create and maintain. These were the perplexities I had about Professor Hart's argument when I first encountered it. But on reflection I am sure any criticism of his essay as being self-contradictory would be both unfair and unprofitable. There is no reason why the argument for a strict separation of law and morality cannot be rested on the double ground that this separation serves both intellectual clarity and moral integrity. If there are certain difficulties in bringing these two lines of reasoning into proper relation to one another, these difficulties affect also the position of those who reject the views of Austin, Gray, and Holmes. For those of us who find the "positivist" position unacceptable do ourselves rest our argument on the double ground that its intellectual clarity is specious and that its effects are, or may be, harmful. On the one hand, we assert that Austin's definition of law, for example, violates the reality it purports to describe. Being false in fact, it cannot serve effectively what Kelsen calls "an interest of cognition." On the other hand, we assert that under some conditions the same conception of law may become dangerous, since in human affairs what men mistakenly accept as real tends, by the very act of their acceptance, to become real. It is a cardinal virtue of Professor Hart's argument that for the first time it opens the way for a truly profitable exchange of views between those whose differences center on the distinction between law and morality. Hitherto there has been no real joinder of issue between the opposing camps. On the one side, we encounter a series of definitional fiats. A rule of law is - that is to say, it really and simply and always is - the command of a sovereign, a rule laid down by a judge, a prediction of the future incidence of state force, a pattern of official behavior, etc. When we ask what purpose these definitions serve, we receive the answer, "Why, no purpose, except to describe accurately the social reality that corresponds to the word 'law.'" When we reply, "But it doesn't look like that to me," the answer comes back, "Well, it does to me." There the matter has to rest. This state of affairs has been most unsatisfactory for those of us who are convinced that "positivistic" theories have had a distorting effect on the aims of legal philosophy. Our dissatisfacI958] 631

HARVARD LAW REVIEW TVol.7I tion arose not merely from the impasse we confronted, but be- cause this impasse seemed to us so unnecessary. All that was needed to surmount it was an acknowledgment on the other side that its definitions of what law really is" are not mere images of some datum of experience but direction posts for the application of human energies. Since this acknowledgment was not forthcom ing, the impasse and its frustrations continued. There is indeed no frustration greater than to be confronted by a theory which purports merely to describe, when it not only plainly prescribes but owes its special prescriptive powers precisely to the fact that disclaims prescriptive intentions. Into this murky debate, some shafts of light did occasionally break through, as in Kelsen's casual admission, apparently never repeated, that his whole system might well rest on an emotional preference for the ideal of order over that of justice. But I have to confess that in general the dispute that has been conducted during the last twenty years has not been very profitable. Now, with Professor Hart's paper, the discussion takes a new ind promising turn. It is now explicitly acknowledged on both sides that one of the chief issues is how we can best define and serve the ideal of fidelity to law. Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the be avior of state officials. The respect we owe to human laws must surely be something different from the respect we accord to the law of gravitation. If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark If. as i believe. it is a cardinal virtue of Professor Hart's argu- nent that it brings into the dispute the issue of fidelity to law, its chief defect, if I may say so, lies in a failure to perceive and accept the implications that this enlargement of the frame of argu- ment necessarily entails. This defect seems to me more or less to permeate the whole essay, but it comes most prominently to the fore in his discussion of Gustav Radbruch and the Nazi regime. 2 Die Idee des Naturrechtes, 7 ZEITSCHRIFT FUR OFFENTLICHES RECHT stria I927) Positivism and the Separation of Law and Morals, 7I HARV. L. REv. 593,6r5-2x(r958)

HARVARD LAW REVIEW tion arose not merely from the impasse we confronted, but because this impasse seemed to us so unnecessary. All that was needed to surmount it was an acknowledgment on the other side that its definitions of "what law really is" are not mere images of some datum of experience, but direction posts for the application of human energies. Since this acknowledgment was not forthcoming, the impasse and its frustrations continued. There is indeed no frustration greater than to be confronted by a theory which purports merely to describe, when it not only plainly prescribes, but owes its special prescriptive powers precisely to the fact that it disclaims prescriptive intentions. Into this murky debate, some shafts of light did occasionally break through, as in Kelsen's casual admission, apparently never repeated, that his whole system might well rest on an emotional preference for the ideal of order over that of justice.l But I have to confess that in general the dispute that has been conducted during the last twenty years has not been very profitable. Now, with Professor Hart's paper, the discussion takes a new and promising turn. It is now explicitly acknowledged on both sides that one of the chief issues is how we can best define and serve the ideal of fidelity to law. Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behavior of state officials. The respect we owe to human laws must surely be something different from the respect we accord to the law of gravitation. If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark. If, as I believe, it is a cardinal virtue of Professor Hart's argument that it brings into the dispute the issue of fidelity to law, its chief defect, if I may say so, lies in a failure to perceive and accept the implications that this enlargement of the frame of argument necessarily entails. This defect seems to me more or less to permeate the whole essay, but it comes most prominently to the fore in his discussion of Gustav Radbruch and the Nazi regime.2 1 Kelsen, Die Idee des Naturrechtes, 7 ZEITSCHRIFT FiR OFFENTLICHES RECHT 221, 248 (Austria 1927). 2 Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 6i5-21 (1958). 632 [Vol. 7

FIDELITY TO LAW 633 without any inquiry into the actual workings of whatever re- mained of a legal system under the Nazis, Professor Hart assumes nat something must have persisted that still deserved the name of law in a sense that would make meaningful the ideal of fidelity to law Not that Professor hart believes the Nazis laws should have been obeyed. Rather he considers that a decision to disobey them presented not a mere question of prudence or courage, but a genuine moral dilemma in which the ideal of fidelity to law had to be sacrificed in favor of more fundamental goals. I should have thought it unwise to pass such a judgment without first in- firing with more particularity what"law "itself meant under the azl regime. I shall present later my reasons for thinking that Professor Hart is profoundly mistaken in his estimate of the Nazi situation and that he gravely misinterprets the thought of Professor Rad bruch. But first I shall turn to some preliminary definitional prob- lems in whic lich what I regard as the central defect in Professor Hart's thesis seems immediately apparent I. THE DEFINITION OF LAW o Throughout his essay Professor Hart aligns himself with a gen- al position which he associates with the names of Bentham Austin, Gray, and Holmes. He recognizes, of course, that the conceptions of these men as to "what law is"vary considerably but this diversity he apparently considers irrelevant in his defense of general school of thought. If the only issue were that of stipulating a meaning for the word"law"that would be conducive to intellectual clarity, there might be much justification for treating all of these men as work ng in the same direction. Austin, for example, defines law as the command of the highest legislative power, called the sovereign For gray, on the other hand, law consists in the rules laid down by judges. A statute is, for Gray, not a law, but only a source of law, which becomes law only after it has been interpreted and applied by a court. Now if our only object were to obtain that clarity which comes from making our definitions explicit and then adhering strictly to those definitions, one could argue plausi bly that either conception of the meaning of "law will do. Both conceptions appear to avoid a confusion of morals and law, and

FIDELITY TO LAW Without any inquiry into the actual workings of whatever remained of a legal system under the Nazis, Professor Hart assumes that something must have persisted that still deserved the name of law in a sense that would make meaningful the ideal of fidelity to law. Not that Professor Hart believes the Nazis' laws should have been obeyed. Rather he considers that a decision to disobey them presented not a mere question of prudence or courage, but a genuine moral dilemma in which the ideal of fidelity to law had to be sacrificed in favor of more fundamental goals. I should have thought it unwise to pass such a judgment without first inquiring with more particularity what "law" itself meant under the Nazi regime. I shall present later my reasons for thinking that Professor Hart is profoundly mistaken in his estimate of the Nazi situation and that he gravely misinterprets the thought of Professor Radbruch. But first I shall turn to some preliminary definitional problems in which what I regard as the central defect in Professor Hart's thesis seems immediately apparent. I. THE DEFINITION OF LAW Throughout his essay Professor Hart aligns himself with a general position which he associates with the names of Bentham, Austin, Gray, and Holmes. He recognizes, of course, that the conceptions of these men as to "what law is" vary considerably, but this diversity he apparently considers irrelevant in his defense of their general school of thought. If the only issue were that of stipulating a meaning for the word "law" that would be conducive to intellectual clarity, there might be much justification for treating all of these men as working in the same direction. Austin, for example, defines law as the command of the highest legislative power, called the sovereign. For Gray, on the other hand, law consists in the rules laid down by judges. A statute is, for Gray, not a law, but only a source of law, which becomes law only after it has been interpreted and applied by a court. Now if our only object were to obtain that clarity which comes from making our definitions explicit and then adhering strictly to those definitions, one could argue plausibly that either conception of the meaning of "law" will do. Both conceptions appear to avoid a confusion of morals and law, and I958] 633