Fuller gave three reasons for rejecting Hart’s proposed separation of law and morality. One built on a point about Hart’s theory: the rule of recognition, according to Fuller, has to get its force from morality. Fuller’s second argument maintains that there is what he calls an ‘internal morality’ to law. Finally, he disputes Hart’s analysis of the Nazi informer case. The correct analysis, he claimed, relies on there being a connection between law and morality.
Fuller notes that the rule of recognition is not derived from any other rule in Hart’s system. This is something that Hart acknowledged. Fuller believes that this is inconsistent with the separation of law and morality. This is, of course, not something that Hart accepted.
Fuller’s argument is that laws will only gain respect and deference if they are thought to be good. Since the rule of recognition is the ultimate source of law, according to Hart, it has to reflect the moral beliefs of the society being governed. To put it another way, the rules can’t be unfair if you want people to think that breaking the rules would be unfair.
Hart can point out that there are many systems of rules that work without any obvious connection with morality. The rules of various games successfully govern the behavior of people playing those games even though they do not think those rules are ultimately linked with morality in any way.
Theresa thought that Fuller has a point and that this is a case where Hart’s frequent analogies between law and games falls short. People who play games want to play them. But no one chooses to “play” belonging to society.
Elin was less impressed. Don’t tyrannies have working legal systems? They may be objectionable in various ways but they seem capable of securing their citizens’ deference even in the face of their bad laws.
Fuller’s second argument is that there is what he calls an internal morality of law. If he’s right, any rules that fail to conform to this morality would fail to be laws.
To make his point, Fuller asked us to consider a bad monarch who issues inconsistent, retroactive, and secret rules. He makes the reasonable point that no one can follow rules like this and concludes that genuine laws must be consistent, prospective, and public. That’s the internal morality of law.
Hart, by contrast, would argue that what Fuller’s points show is that the bad monarch’s laws are stupid. There’s no need to invoke morality.
It’s not easy to resolve this dispute because neither author says much about what they mean by “morality.” Fuller seems to have a point in that the bad laws he described are both ineffective and unfair. A state that strives to make its laws consistent and so on would be more fair and more effective than one that does not. But it’s not clear that this means that law and morality are necessarily linked. Greater fairness may just be a beneficial side effect of having effective laws.
Fuller argued that the man wasn’t guilty even by the Nazi statutes and that the relevant statutes were too immoral to count as laws. I said that only the second argument is interesting for his dispute with Hart since Hart took issue with the court’s reasoning in rejecting the law on moral grounds.
Hart’s position is that law and morality are different. If laws are seriously immoral, they shouldn’t be followed. Fuller’s most effective point here, in my opinion, involves asking how the judges in this case should have acted. Should they have said that the statute was the law but too immoral to enforce?
One thing this brings out is that all the difficulties with morality can come in through the back door, even on the positivist view. Positivists don’t think that morality is relevant to determining what the law is. But they do think it’s relevant to determining what should be done. It’s reasonable to ask exactly what is accomplished by separating law and morality if there’s no separating morality from what should be done.