HARVARD LAW REVIEW Positivism and fidelity to law: a reply to professor Hart Author(s): Lon L. Fuller Source: Harvard Law Review, Vol. 71, No. 4(Feb, 1958), pp. 630-672 Published by: The Harvard Law Review Association StableUrl:http://www.jstor.org/stable/1338226 Accessed:20/02/200902:29 Your use of the jStOR archive indicates your acceptance of jSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jspJstOr'sTermsandConditionsofUseprovidesinpartthatunless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the jSTOR archive only for your personal, non-commercial use Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showpublisher?publishercodesharvardlAw Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed of such transmission JStOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the holarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support @jstor. org Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to ard Lany revie ittp://www.jstor.org
Positivism and Fidelity to Law: A Reply to Professor Hart Author(s): Lon L. Fuller Source: Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 630-672 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1338226 Accessed: 20/02/2009 02:29 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=harvardlaw. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Harvard Law Review. http://www.jstor.org
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
HARVARD LAW REVIEW Vol. 7I both writers let the reader know what meaning they propose to attribute to the word law The matter assumes a very different aspect, however, if our interest lies in the ideal of fidelity to law, for then it may become a matter of capital importance what position is assigned to the judiciary in the general frame of government. Confirmation for this observation may be found in the slight rumbling of constitu tional crisis to be heard in this country today. during the past rear readers of newspapers have been writing to their editors urg ing solemnly, and even apparently with sincerity, that we should abolish the Supreme Court as a first step toward a restoration of the rule of law. It is unlikely that this remedy for our govern- mental ills derives from any deep study of Austin or Gray, but surely those who propose it could hardly be expected to with indifference the divergent definitions of law offered by those two jurists. If it be said that it is a perversion of Gray's mean- ing to extract from his writings any moral for present contro versies about the role of the Supreme Court, then it seems to me there is equal reason for treating what he wrote as irrelevant to the issue of fidelity to law generally Another difference of opinion among the writers defended by Professor Hart concerns Bentham and austin and their views on nstitutional limitations on the power of the sovereign. Bentham considered that a constitution might preclude the highest legisla tive power from issuing certain kinds of laws. For Austin,on the other hand, any legal limit on the highest lawmaking power was an absurdity and an impossibility. What guide to conscience would be offered by these two writers in a crisis that might some day arise out of the provision of our constitution to the effect that he amending power can never be used to deprive any state with- out its consent of its equal representation in the Senate? Surely it is not only in the affairs of everyday life that we need clarity about the obligation of fidelity to law, but most particularly and urgently in times of trouble. If all the positivist school has to offer in such times is the observation that, he hoose to define law, it is always something different from morals its teachings are not of much use to us. I suggest, then, that Professor Hart' s thesi it now stands is essentially incomplete and that before he can attain the goals
HARVARD LAW REVIEW both writers let the reader know what meaning they propose to attribute to the word "law." The matter assumes a very different aspect, however, if our interest lies in the ideal of fidelity to law, for then it may become a matter of capital importance what position is assigned to the judiciary in the general frame of government. Confirmation for this observation may be found in the slight rumbling of constitutional crisis to be heard in this country today. During the past year readers of newspapers have been writing to their editors urging solemnly, and even apparently with sincerity, that we should abolish the Supreme Court as a first step toward a restoration of the rule of law. It is unlikely that this remedy for our governmental ills derives from any deep study of Austin or Gray, but surely those who propose it could hardly be expected to view with indifference the divergent definitions of law offered by those two jurists. If it be said that it is a perversion of Gray's meaning to extract from his writings any moral for present controversies about the role of the Supreme Court, then it seems to me there is equal reason for treating what he wrote as irrelevant to the issue of fidelity to law generally. Another difference of opinion among the writers defended by Professor Hart concerns Bentham and Austin and their views on constitutional limitations on the power of the sovereign. Bentham considered that a constitution might preclude the highest legislative power from issuing certain kinds of laws. For Austin, on the other hand, any legal limit on the highest lawmaking power was an absurdity and an impossibility. What guide to conscience would be offered by these two writers in a crisis that might some day arise out of the provision of our constitution to the effect that the amending power can never be used to deprive any state without its consent of its equal representation in the Senate? 3 Surely it is not only in the affairs of everyday life that we need clarity about the obligation of fidelity to law, but most particularly and urgently in times of trouble. If all the positivist school has to offer in such times is the observation that, however you may choose to define law, it is always something different from morals, its teachings are not of much use to us. I suggest, then, that Professor Hart's thesis as it now stands is essentially incomplete and that before he can attain the goals 3 U.S. CONST. art. V. 634 [Vol. 71
r958] FIDELITY TO LAW 635 he seeks he will have to concern himself more closely with a definition of law that will make meaningful the obligation of fidelity to law II. THE DEFINITION OF MORALITY It is characteristic of those sharing the point of view of Pro- fessor Hart that their primary concern is to preserve the integrity of the concept of law. Accordingly, they have generally sought a precise definition of law, but have not been at pains to state just what it is they mean to exclude by their definitions. They are like men building a wall for the defense of a village, who must know what it is they wish to protect but who need not and indeed cannot, know what invading forces those walls may have to turn When Austin and Gray distinguish law from morality, the word"morality"stands indiscriminately for almost every con ceivable standard by which human conduct may be judged that is not itself law. The inner voice of conscience notions of right and wrong based on religious belief, common conceptions of de- cency and fair play, culturally conditioned prejudices-all of these are grouped together under the heading of "morality"and are excluded from the domain of law. For the most part Professor Hart follows in the tradition of his predecessors. When he speak of morality he seems generally to have in mind all sorts of extra- legal notions about "what ought to be, regardless of their sources pretensions, or intrinsic worth. This is particularly apparent in treatment of the problem of interpretation, where uncodified notions of what ought to be are viewed as affecting only the penumbra of law, leaving its hard core untouched Toward the end of the essay, however, Professor Hart's argu ment takes a turn that seems to depart from the prevailing tenor of his thought. This consists in reminding us that there is such a thing as an immoral morality and that there are many standards of "what ought to bethat can hardly be called moral. Let us grant, he says, that the judge may properly and inevitably leg late in the penumbra of a legal enactment, and that this legisla- tion(in default of any other standard)must be guided by the judge's notions of what ought to be. Still, this would be true even in a society devoted to the most evil ends, where the judge would 4 Hart, supra note 2, at 624
FIDELITY TO LAW he seeks he will have to concern himself more closely with a definition of law that will make meaningful the obligation of fidelity to law. II. THE DEFINITION OF MORALITY It is characteristic of those sharing the point of view of Professor Hart that their primary concern is to preserve the integrity of the concept of law. Accordingly, they have generally sought a precise definition of law, but have not been at pains to state just what it is they mean to exclude by their definitions. They are like men building a wall for the defense of a village, who must know what it is they wish to protect, but who need not, and indeed cannot, know what invading forces those walls may have to turn back. When Austin and Gray distinguish law from morality, the word "morality" stands indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law. The inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices -all of these are grouped together under the heading of "morality" and are excluded from the domain of law. For the most part Professor Hart follows in the tradition of his predecessors. When he speaks of morality he seems generally to have in mind all sorts of extralegal notions about "what ought to be," regardless of their sources, pretensions, or intrinsic worth. This is particularly apparent in his treatment of the problem of interpretation, where uncodified notions of what ought to be are viewed as affecting only the penumbra of law, leaving its hard core untouched. Toward the end of the essay, however, Professor Hart's argument takes a turn that seems to depart from the prevailing tenor of his thought. This consists in reminding us that there is such a thing as an immoral morality and that there are many standards of "what ought to be" that can hardly be called moral.4 Let us grant, he says, that the judge may properly and inevitably legislate in the penumbra of a legal enactment, and that this legislation (in default of any other standard) must be guided by the judge's notions of what ought to be. Still, this would be true even in a society devoted to the most evil ends, where the judge would 4 Hart, supra note 2, at 624. 1958] 635
HARVARD LAW REVIEW [Vol. 7I supply the insufficiencies of the statute with the iniquity that seemed to him most apt for the occasion. Let us also grant, says Professor Hart toward the end of his essay, that there is at times even something that looks like discovery in the judicial process, when a judge by restating a principle seems to bring more clearly to light what was really sought from the beginning. Again, he reminds us, this could happen in a society devoted to the highest refinements of sin, where the implicit demands of an evil rule ight be a matter for discovery when the rule was applied to situation not consciously considered when it was formulated I take it that this is to be a warning addressed to those who wish "to infuse more morality into the law. Professor Hart is reminding them that if their program is adopted the morality that actually gets infused may not be to their liking. If this is his oint it is certainly a valid one, though one wishes it had been made more explicitly, for it raises much the most fundamental issue of his whole argument. Since the point is made obliquely, and I may have misinterpreted it, in commenting I shall have to content myself with a few summary observations and questions First, Professor Hart seems to assume that evil aims may have as much coherence and inner logic as good ones. I, for one, refuse to accept that assumption. I realize that I am here raising,or perhaps dodging, questions that lead into the most difficult prob pistemology of ethics, Even if i we ere competent undertake an excursus in that direction, this is not the place for it. I shall have to rest on the assertion of a belief that may seem naive, namely, that coherence and goodness have more affinity than coherence and evil. Accepting this belief, I also believe that hen men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward good by whatever standards of ultimate goodness there are. Ac- cepting these beliefs, I find a considerable incongruity in any conception that envisages a possible futur which the common law would"work itself pure from case to case"toward a more perfect realization of iniquity. Second, if there rious danger in our society that a weak- ening of the partition between law and morality would permit an infusion of "immoral morality, " the question remains, what is the most effective protection against this danger? I cannot myself believe it is to be found in the positivist position espoused by Austin, Gray, Holmes, and Hart. For those writers seem to me
HARVARD LAW REVIEW supply the insufficiencies of the statute with the iniquity that seemed to him most apt for the occasion. Let us also grant, says Professor Hart toward the end of his essay, that there is at times even something that looks like discovery in the judicial process, when a judge by restating a principle seems to bring more clearly to light what was really sought from the beginning. Again, he reminds us, this could happen in a society devoted to the highest refinements of sin, where the implicit demands of an evil rule might be a matter for discovery when the rule was applied to a situation not consciously considered when it was formulated. I take it that this is to be a warning addressed to those who wish "to infuse more morality into the law." Professor Hart is reminding them that if their program is adopted the morality that actually gets infused may not be to their liking. If this is his point it is certainly a valid one, though one wishes it had been made more explicitly, for it raises much the most fundamental issue of his whole argument. Since the point is made obliquely, and I may have misinterpreted it, in commenting I shall have to content myself with a few summary observations and questions. First, Professor Hart seems to assume that evil aims may have as much coherence and inner logic as good ones. I, for one, refuse to accept that assumption. I realize that I am here raising, or perhaps dodging, questions that lead into the most difficult problems of the epistemology of ethics. Even if I were competent to undertake an excursus in that direction, this is not the place for it. I shall have to rest on the assertion of a belief that may seem naive, namely, that coherence and goodness have more affinity than coherence and evil. Accepting this belief, I also believe that when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness, by whatever standards of ultimate goodness there are. Accepting these beliefs, I find a considerable incongruity in any conception that envisages a possible future in which the common law would "work itself pure from case to case" toward a more perfect realization of iniquity. Second, if there is a serious danger in our society that a weakening of the partition between law and morality would permit an infusion of "immoral morality," the question remains, what is the most effective protection against this danger? I cannot myself believe it is to be found in the positivist position espoused by Austin, Gray, Holmes, and Hart. For those writers seem to me 636 [Vol. 7
I958] FIDELITY TO LAW 637 to falsify the problem into a specious simplicity which leaves un touched the difficult issues where real dangers lie Third, let us suppose a judge bent on realizing through his decisions an objective that most ordinary citizens would regard as mistaken or evil. Would such a judge be likely to suspend the letter of the statute by openly invoking a" higher law"? Or would e be more likely to take refuge behind the maxim that"law is law"and explain his decision in such a way that it would appear to be demanded by the law itself? Fourth, neither Professor Hart nor I belong to anything that could be said in a significant sense to be a"minority group"in our respective countries. This has its advantages and disadvan tages to one aspiring to a philosophic view of law and government But suppose we were both transported to a country where our beliefs were anathemas, and where we, in turn, regarded the pre- vailing morality as thoroughly evil. No doubt in this situation we would have reason to fear that the law might be covertly manipu- lated to our disadvantage; I doubt if either of us would be appr hensive that its injunctions would be set aside by an appeal to a morality higher than law. If we felt that the law itself was our safest refuge, would it not be because even in the most per erted regimes there is a certain hesitancy about writing cruelties intolerances, and inhumanities into law? And is it not clear that this hesitancy itself derives, not from a separation of law and morals, but precisely from an identification of law with those de- mands of morality that are the most urgent and the most ob ously justifiable, which no man need be ashamed to profess? Fifth, over great areas where the judicial process functions, the danger of an infusion of immoral, or at least unwelcome, morality does not, I suggest, present a real issue. Here the danger is pre- cisely the opposite. For example, in the field of commercial law the British courts in recent years have, if I may say so, fallen into a"law-is-law"formalism that constitutes a kind of belated coun terrevolution against all that was accomplished by Mansfield.5 The matter has reached a stage approaching crisis as commercial cases are increasingly being taken to arbitration. The chief For an outstanding [I94I] A.C. 25I(I940).I Victoria Laundry, Ltd v Ne i personally would be inclined to put under the same head
FIDELITY TO LAW to falsify the problem into a specious simplicity which leaves untouched the difficult issues where real dangers lie. Third, let us suppose a judge bent on realizing through his decisions an objective that most ordinary citizens would regard as mistaken or evil. Would such a judge be likely to suspend the letter of the statute by openly invoking a "higher law"? Or would he be more likely to take refuge behind the maxim that "law is law" and explain his decision in such a way that it would appear to be demanded by the law itself? Fourth, neither Professor Hart nor I belong to anything that could be said in a significant sense to be a "minority group" in our respective countries. This has its advantages and disadvantages to one aspiring to a philosophic view of law and government. But suppose we were both transported to a country where our beliefs were anathemas, and where we, in turn, regarded the prevailing morality as thoroughly evil. No doubt in this situation we would have reason to fear that the law might be covertly manipulated to our disadvantage; I doubt if either of us would be apprehensive that its injunctions would be set aside by an appeal to a morality higher than law. If we felt that the law itself was our safest refuge, would it not be because even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law? And is it not clear that this hesitancy itself derives, not from a separation of law and morals, but precisely from an identification of law with those demands of morality that are the most urgent and the most obviously justifiable, which no man need be ashamed to profess? Fifth, over great areas where the judicial process functions, the danger of an infusion of immoral, or at least unwelcome, morality does not, I suggest, present a real issue. Here the danger is precisely the opposite. For example, in the field of commercial law the British courts in recent years have, if I may say so, fallen into a "law-is-law" formalism that constitutes a kind of belated counterrevolution against all that was accomplished by Mansfield.5 The matter has reached a stage approaching crisis as commercial cases are increasingly being taken to arbitration. The chief 5 For an outstanding example, see G. Scammell and Nephew, Ltd. v. Ouston, [I94I] A.C. 251 (1940). I personally would be inclined to put under the same head Victoria Laundry, Ltd. v. Newman Industries, Ltd., [I949] 2 K.B. 528 (C.A.). I958] 637
HARVARD LAW REVIEW ol reason for this development is that arbitrators are willing to take into account the needs of commerce and ordinary standards commercial fairness. I realize that Professor Hart repudiates formalism, "but I shall try to show later why I think his theor necessarily leads in that direction. 6 Sixth, in the thinking of many there is one question that pre- dominates in any discussion of the relation of law and morals to the point of coloring everything that is said or heard on the abject. I refer to the kind of question raised by the Pope's pro- nouncement concerning the duty of Catholic judges in divorce actions. This pronouncement does indeed raise grave issues. But it does not present a problem of the relation between lav one hand, and, on the other, generally shared views of right con duct that have grown spontaneously through experience and dis- cussion. The issue is rather that of a conflict between two pro- nouncements, both of which claim to be authoritative; if you will it is one kind of law against another. When this kind of issue is taken as the key to the whole problem of law and morality, the discussion is so denatured and distorted that profitable exchange becomes impossible. In mentioning this last aspect of the dispute about "positivism, "I do not mean to intimate that Professor Hart's own discussion is dominated by any arriere-pensee; I know it is not. At the same time I am quite sure that i have indi cated accurately the issue that will be uppermost in the minds of many as they read his essay. In resting content with these scant remarks, i do not want to seem to simplify the problem in a direction opposite to that taken by Professor Hart. The questions raised by"immoral morality deserve a more careful exploration than either Professor Hart or I have offered in these pages IIL. THE MORAL FOUNDATIONS OF A LEGAL ORDER Professor Hart emphatically rejects "the command theory of law, according to which law is simply a command backed by a force sufficient to make it effective. He observes that such a com mand can be given by a man with a loaded gun, and"law surely e See Hart, supra note 2, at 6o8-12 e N.Y. Times, Nov 8, 1949, p. I, col. 4 (late city ed. )(report of a speech made on November 7, I949 to the Central Committee of the Union of Catholic
HARVARD LAW REVIEW reason for this development is that arbitrators are willing to take into account the needs of commerce and ordinary standards of commercial fairness. I realize that Professor Hart repudiates "formalism," but I shall try to show later why I think his theory necessarily leads in that direction.6 Sixth, in the thinking of many there is one question that predominates in any discussion of the relation of law and morals, to the point of coloring everything that is said or heard on the subject. I refer to the kind of question raised by the Pope's pronouncement concerning the duty of Catholic judges in divorce actions.7 This pronouncement does indeed raise grave issues. But it does not present a problem of the relation between law, on the one hand, and, on the other, generally shared views of right conduct that have grown spontaneously through experience and discussion. The issue is rather that of a conflict between two pronouncements, both of which claim to be authoritative; if you will, it is one kind of law against another. When this kind of issue is taken as the key to the whole problem of law and morality, the discussion is so denatured and distorted that profitable exchange becomes impossible. In mentioning this last aspect of the dispute about "positivism," I do not mean to intimate that Professor Hart's own discussion is dominated by any arriere-pensee; I know it is not. At the same time I am quite sure that I have indicated accurately the issue that will be uppermost in the minds of many as they read his essay. In resting content with these scant remarks, I do not want to seem to simplify the problem in a direction opposite to that taken by Professor Hart. The questions raised by "immoral morality" deserve a more careful exploration than either Professor Hart or I have offered in these pages. III. THE MORAL FOUNDATIONS OF A LEGAL ORDER Professor Hart emphatically rejects "the command theory of law," according to which law is simply a command backed by a force sufficient to make it effective. He observes that such a command can be given by a man with a loaded gun, and "law surely 6 See Hart, supra note 2, at 608-I2. 7 See N.Y. Times, Nov. 8, I949, p. I, col. 4 (late city ed.) (report of a speech made on November 7, I949 to the Central Committee of the Union of Catholic Italian Lawyers). 638 [Vol. 7I
