by Peter Cane (ed.). Oxford and Portland, Oregon: Hart Publishing, 2010. 360pp. Cloth £50.00/$75.00. ISBN: 9781841138947.
Reviewed by Keith J. Bybee, College of Law and Maxwell School, Syracuse University. Email: kjbybee [at] maxwell.syr.edu.
In 1958, the Harvard Law Review published articles by H.L.A. Hart and Lon Fuller debating positivism, morality, and the nature of law (Hart 1958 and Fuller 1958). THE HART-FULLER DEBATE IN THE TWENTY-FIRST CENTURY, edited by Peter Cane, features essays and commentary written on the occasion of the two articles’ fiftieth anniversary.
In his preface, Peter Cane writes that the aim of the volume is “not to rerun the famous debate” nor is “the intention to confine discussion to the issues canvassed by Hart and Fuller” (p.v). Instead, the plan is “to look forward rather than backward, using the debate as a point of departure and inspiration” (p.v). This is an interesting approach to a classic debate. Unfortunately, it is not an approach that Cane attempts to flesh out or justify in any detail.
Cane notes that participants in the colloquium that gave rise to the volume’s essays were skeptical about using the debate as a “springboard” for analysis (p.v). Some colloquium participants wondered if the debate held anything more than historical interest and others questioned the value of discussing issues that neither Hart nor Fuller may have had in mind in 1958. Rather than defending his approach against such criticism, Cane writes that the colloquium ultimately “was counted as a great success by those who attended” and that the essays included in the volume are of “the very highest quality” (p.vi). I agree that the essays in the volume have a good deal to offer. Yet claims about the quality of individual contributions do not make a case for the essays as a collection. Cane would have given the volume a better start if he had significantly expanded his one-and-a-half page preface, elaborating the rationale and framework of the volume at much greater length. A more substantial introduction not only would provide the collection with a firmer foundation, but also would help guide readers across the broad terrain covered by the volume’s contributors.
The text is divided into sixteen chapters. Nine of the chapters are of significant length, and seven of these nine chapters are followed by shorter commentaries that critically engage the arguments of the longer chapters. The pairing of longer essays and targeted commentary is a great strength: it is a structure that creates a series of dynamic conversations within the volume. Although the volume’s organizing rationale and overall framework remain under-developed, the dialogue between chapters and commentaries helps pull readers into specific discussions, and will help stimulate the thinking of scholars and graduate students alike. [*215]
In the first chapter, Nicola Lacey carefully reconstructs the context and content of the original Hart-Fuller debate. She argues that Fuller was at a disadvantage in the debate because the discussion was posed in philosophical terms. Fuller’s greatest contributions were to the study of institutions and processes, where he drew on a wide variety of empirical sources and disciplines. By accepting the terms of Hart’s abstract approach, Fuller had no opportunity to direct attention to law’s institutional forms and was forced to argue on grounds where he was less certain. Lacey pairs her account of the debate’s substance with a treatment of the personal and professional stakes for the two debaters. She does a very good job of re-creating a sense of the pressures and insecurities that Hart and Fuller faced as they struggled to build their academic reputations.
The next five chapters of the volume explore the international and comparative dimensions of the Hart-Fuller debate. In their original exchange, Hart and Fuller had considered whether the laws of Nazi Germany could properly be called “laws” at all. Hilary Charlesworth asks how Hart and Fuller could have argued about such a subject and not discussed international standards of human rights – standards that been articulated in the United Nations Charter over a decade before Hart and Fuller debated one another. Charlesworth’s answer is that Hart and Fuller are part of a larger movement that understands the rule of law as a relatively narrow matter of constraining state power through legal processes. By failing to engage with a full range of rights, the rule of law movement fails to look beyond legal means to the broader political, social, and cultural contexts that must be considered in order to address abuses of power in all spheres of life. Karen Knop, in her response to Charlesworth’s chapter, expresses less surprise at the absence of human rights talk in the original debate, arguing that the international human rights system was far from well-established in 1958. Indeed, Knop finds that various elements of the debate are directly relevant to international law human rights law – a connection that she believes becomes more apparent once we recognize that, among other things, international human rights law today plays a similar role to morality’s in the Hart-Fuller debate, serving as an independent standard against which many wish to measure domestic law.
Larry May also sees a connection between the original debate and international law, this time in the context of criminal law. May argues that in spite of their many disagreements Hart and Fuller both thought that law would be accepted as fair and used as a guide only if it contained certain elements. Building on this zone of agreement, May argues that a set of fundamental procedural rights (and especially habeas corpus rights) can play an essential role in making international law fair and accepted. In his response to May, Christopher Kutz questions whether the understanding shared by Hart and Fuller stretches as far as May would like. In order to justify the assertion of fundamental procedural rights, Kutz insists that the moral argument for such rights must be advanced, moving beyond what Hart and Fuller allow to making a direct case for the values implemented by judicial review. As Kutz puts it, [*216] judicial review in the criminal context “channels the will of the executive through the law. It thereby renders that will non-arbitrary, something fixed at the boundaries, not simply the will of the executive but something more complex” (p.102). Kutz calls for arguments that defend the specific goods that judicial review achieves.
Martin Krygier rounds out the international and comparative section of the volume by applying themes from the Hart-Fuller debate to transitional societies. Krygier focuses his discussion on Fuller’s arguments about the internal morality latent in the rule-of-law enterprise. Fuller thought internal morality required “that law be made up of general rules, rather than simply ad hoc pronouncements; be publicly available to affected parties; prospective not retrospective; comprehensible; not contradictory; not require the impossible; not change so often that [law] cannot provide guides to action; be administered in ways that conform to [law’s own] terms” (p.115). Although Fuller acknowledged that it is possible for people to obey laws that dispense with this internal morality, he believed that an “obligation of fidelity” to laws would only be felt where the internal morality was present (p.119). Krygier embraces Fuller’s view, but pushes past Fuller’s central concern with the character of law and directs attention toward a wider range of political, social, and cultural factors essential to establish an “obligation of fidelity” in societies struggling with despotic pasts (as Charlesworth notes, Krygier’s appeal to a broad suite of contextual factors differs somewhat from her own call for sociological breadth, for Krygier’s goal ultimately remains focused on the rule of law while Charlesworth looks beyond the rule of law to a muscular set of human rights capable of restraining abuses of power in any setting).
The remaining chapters in the volume take up a variety of theoretical issues. In his contribution, Jeremy Waldron critiques the assumptions that Hart’s work is hostile to legal pluralism (where “legal pluralism” is understood as the existence of more than one legal system in the same social order) while Fuller’s work is more sympathetic. Waldron believes there is some truth here, but he also believes the assumptions are too simple. According to Waldron, Hart was uninterested in legal pluralism, but his theory is also open to the phenomenon. Rather than emphasizing the importance of sovereignty, command, or the state, Hart considered law in essence to be a matter of a group normatively accepting a rule. Thus Hart gave custom and unofficial rules important positions in his theory, and recognized that normative orders apart from formal law exist and have value. Fuller, for his part, explicitly expressed ideas that supported legal pluralism, yet he also embraced ideas that clearly cut against it. In particular, Fuller’s inner morality of law ran strongly against the notion that people should be subject to contradictory legal commands. In response to Waldron, Margaret Davies accepts Waldron’s analysis of Hart and Fuller, but questions the cut-and-dried definition of legal pluralism that Waldron employs. According to Davies, legal pluralism is not an empirical fact so much as it is a political judgment about a social order made on the basis of particular understandings of what counts as law in the first place. Even official state law may itself be seen as pluralist if [*217] we begin with a point of view that does not require law to be “logical, contained, coherent, and singular” (p.161). Davies asks for scholars to be more attentive to such politics of naming.
Leslie Green focuses on a general question that divides Hart and Fuller: Is law best understood in terms of the instrumental means on which it relies or in terms of the ultimate ends which it pursues? Green argues in favor of the instrumentalist view of law (thus taking Hart’s side of the issue), and makes the case that even those who seem to be against instrumentalism do not really reject it. Green then devotes the bulk of his chapter to refuting fallacies about instrumentalism that have kept it from being properly apprehended. Along the way, Green suggests that law might fruitfully be thought of as a “Swiss-Army knife: a multi-purpose tool handy for lots of ends, but not necessarily as all-purpose tool” (p.184). In response, Anthony Sebok suggests that Green has not addressed the strongest objection that might be lodged against Green’s position. Agreeing that all legal theorists accept instrumentalism to some degree, Sebok argues that the real question is what version of instrumentalism is to prevail. Although Green (with Hart) wishes to concentrate more or less exclusively on law’s means, Sebok suggests that Fuller might consider ends to remain worthy of study because they play a critical role in the selection of means.
Like Green, Desmond Manderson is also concerned with the general claims that divide Hart and Fuller. Manderson sees Hart and Fuller as positing incommensurable visions: Hart insists on the importance of clarity, coherence, and necessary meaning, while Fuller emphasizes the importance of ambiguity, context, and on-going re-interpretation. Through a close reading of Henry James’s TURN OF THE SCREW, Manderson illustrates how Hart and Fuller not only stake out their competing visions, but also enact them in the rhetoric of their arguments. The performance of their visions separates Hart and Fuller – and also ultimately joins them, as each ends up incorporating elements of the other’s position even as they attempt to refute one another. Ngaire Naffine responds to Manderson by rejecting the premise that Hart and Fuller were advancing incommensurable visions in the first place. Indeed, Naffine argues that Hart and Fuller held so much in common that they felt no need to define highly contestable terms like “morality”. Echoing and extending the argument made in by Charlesworth , Naffine suggests that Hart and Fuller debated within a very narrow set of boundaries that excluded truly different voices – voices that could have been heard had the two scholars paid more attention to the diversity of experiences that surrounded them.
Philip Pettit devotes his chapter to the question of when a norm (understood as a regularity in the behavior of a population that is used as a guide for action and as basis for praise and criticism) becomes normative (in the sense that people have an independent grounds for conforming to the norm apart from any prudential reasons). This transition is crucial for Hart who built his theory of law – as Waldron notes in his chapter – around the idea of a group normatively accepting a rule. Petit is interested in conceptualizing this rule [*218] acceptance, and he lays out his argument by telling a story of how the norm of honesty may arise for rational actors on purely prudential grounds and then “under a more or less inevitable set of pressures” become obligatory or normative (p.229). In his response, Richard McAdams raises doubts about whether the movement from norm to normativity in the case of honesty is as inevitable as Pettit argues. More broadly, McAdams suggests that there is a parsimonious alternative explanation for the phenomenon that Pettit seeks to explain: the movement toward non-prudential judgment may be driven by resentment against individuals who violate our expectations and interests. By positing a different psychology, McAdams arrives at a different account for how people move “from prudence-talk to obligation-talk” (p.250).
The final chapter-and-commentary pair in the volume concerns legal reasoning. Gerald Postema takes up Hart’s claim that the nature of legal reasoning depends on whether a given legal question occurs in a region of settled meaning or in a penumbra of uncertainty. Postema argues that a division between mechanical settled-meaning interpretation and somewhat arbitrary penumbral interpretation is inconsistent with Hart’s own vision of law. Hart’s premises suggest a different understanding of law as a disciplined and practical form of public reasoning – an understanding of law that has more in common with Fuller’s approach than with theories developed by Hart’s followers. Brian Bix responds to Postema by noting that theories of interpretation do not necessarily include or lead to theories about the nature of law. Bix calls for greater justification for the choices Postema makes as he moves from claims about legal reasoning toward a broader conception of law as a whole. As the final word in the volume, this call for continued argument is a fitting tribute to the original Hart-Fuller debate and to the scholarly work that the debate continues to inspire.
Fuller, Lon L. 1958. “Positivism and Fidelity to Law – A Reply to Professor Hart.” HARVARD LAW REVIEW 71:630-72.
Hart, H.L.A. 1958. “Positivism and the Separation of Law and Morals.” HARVARD LAW REVIEW 71:593-629.
© Copyright 2011 by the author, Keith J. Bybee.