The Hart and Fuller Debate on Legal Positivism

The Hart and Fuller Debate on Legal Positivism
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Hart - Fuller Debate 2
Table of Contents
Table of Contents.......................................................................................................................2
Introduction................................................................................................................................3
Legal Interpretation according to H. L. A. Hart.........................................................................4
The Pedigree Thesis...............................................................................................................4
The Separability Thesis..........................................................................................................8
The Discretion Thesis............................................................................................................9
Lon L. Fuller’s Internal Morality of Law.................................................................................10
The relation between Hart and Fuller’s Arguments on Legal Positivism and Unjust Regimes
..................................................................................................................................................13
Conclusion................................................................................................................................18
References................................................................................................................................20

Hart - Fuller Debate 3
Introduction
The credo of law that deals with the conformist nature of law (socially constructed) is
referred to as legal positivism.1 The theories advanced by many positivists state that law can
be synonymously interchanged with common law, positive norms, case law or norms enacted
by legislators. The formal advancement of the enforcement and effectiveness of law is
adequate to warrant the classification of social norms under law.2 Positivists do not include
divine intervention, human rights or reason in their debate on law. Historically, legal
positivism was developed to oppose the idea advanced by the natural law theory; moral
values are also part of law.3
Legal positivism was not initiated to justify the ethicality of law nor the decision to be made
when the law is obeyed or disobeyed. The issues of humanity and justice are not part of the
idea positivists are trying to explain. Legal positivism merely focuses on the creation of laws.
This includes cases whereby judges making decisions (that are not under legal rules) in their
own discretion and the decisions, later on, become law. Deciding, practicing and toleration
some of the practices in law are also ways of modelling new laws. Legal positivism opposes
the sociological jurisprudence and the interpretations of law which only deal with the
triumphing status of the interpretation of statutes in society. This paper will focus on only two
positivists (Hart and Fuller).
1 Larry Alexander. "Legal Positivism and originalist interpretation." Revista Argentina
de Teoría Jurídica (2015): 15-200.
2 André-Jean Arnaud. "The transplanetary journey of a legal sociologist." Law and
Intersystemic Communication. Routledge, 2016. 29-42
3 Bix, Brian H. "Types of Legal Theory." Encyclopedia of the Philosophy of Law and
Social Philosophy (2017): 1-6.

Hart - Fuller Debate 4
Legal Interpretation according to H. L. A. Hart
The Pedigree Thesis
Hart’s work on the “Concept of Law” is the most significant criticism to John Austin’s
natural law theory.4 Hart states that Austin’s theory only aims at partially accounting for legal
validity whereby people should do or not do some things even if they wish or do not wish to5.
Hart contradicts the belief that all legal systems must have primary rules and regulations by
stating that the constraints found in criminal law portray primitiveness in the legal system.
Hart views Austin’s focus on coercive forces as an overlook of the existence of a secondary
mandatory rule that gives people the power to make, adjust and do away with privileges and
duties of other persons. The rules that govern the formation of contracts and wills aren’t to be
credibly classified as limitations to freedom supported by threats of a punishment. The said
rules endow people to form their legal dealings in the interior basis of the law.6 Hart views
this as among the greatest influences of law to social life. According to Hart, the
contradicting primary rules of law reveal the sophistication of the system that regulates
behaviour.
The difference between civilizations with developed systems of law and those with
rudimentary laws is that developed systems have both primary and secondary rules as first
order rules while undeveloped (rudimentary) ones, do not.
“[Secondary rules] may all be said to be on a different level from the primary rules, for they
are all about such rules; in the sense that while primary rules are concerned with the actions
4 Brian Brix. "On the dividing line between natural law theory and legal positivism."
Law and Morality. Routledge, 2017. 49-60.
5 Herbert Lionel Adolphus Hart. The Concept of Law (OUP Oxford, 2012), p. 55-76
6 Tom D. Campbell Legal positivism. Routledge, 2016.

Hart - Fuller Debate 5
that individuals must or must not do, these secondary rules are all concerned with the primary
rules themselves. They specify the way in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation conclusively
determined.”7
Hart has 3 different set of secondary rules that influence the changeover of rudimentary laws
to complete systems of law.
1. The rule of recognition
This is a group rule that specifies the features which suggest that it should be supported by
the pressure it exerts socially.8
2. The rule of change
This rule allows societies to add, modify or extinguish valid rules.
3. The rule of adjudication
This rule provides the mechanisms for determining whether or not valid rules have been
dishonoured.
According to Hart, the interpretive tests of legal principles are not the alternative standards
provided for by the rule of recognition.9 The rule of recognition can constitute constraints and
restrictions on legal validity including those that have been incorporated into the concept of
7 Herbert L. A. Hart "The new challenge to legal positivism (1979)." Oxford Journal
of Legal Studies 36.3 (2016): 459-475.
8 Kaarlo Tuori. Critical legal positivism. Routledge, 2017.
9 Brian Leiter. "Marx, law, ideology, legal positivism." Virginia Law Review (2015):
1179-1196.

Hart - Fuller Debate 6
morality. Soft-spoken positivists have created a set of standards that classify legal principles
based on content and not by pedigree.
Hart’s view establishes that developed systems have the rule of recognition which allows for
the criteria of validating laws. The rule also articulates for creating, reviewing and arbitrating
law. Law is the fusion of principal and subordinate rules. Hart further outlines that Austin
failed to accept the significance of secondary rules in the establishment of legal legitimacy.
H. L. A. Hart disagrees with Austin’s theory that legal obligations are powerful. He further
states that the principle advanced by John Austin whereby people are coerced to behave in a
particular manner is not different from people being forced to hand over money by gunmen.
The act of forcing people to develop a certain behaviour is not an exercise of duty or
obligation10.
“What is necessary is that there should be a critical reflective attitude to certain patterns of
behaviour as a common standard, and that this should display itself in criticism (including
self-criticism), demands for conformity, and in acknowledgements that such criticism and
demands are justified, all of which find their characteristic expression in the normative
terminology of 'ought', 'must', and 'should', and 'right' and 'wrong' in society.”11
Hart suggests that the bulky population should be requested for the acceptance of the rule of
recognition to be the final standard for legal authority. Many citizens do not have the general
perception of how the legal structure is and the conditions for legal rationality.12 Hart advises
that legislators should take an internal perspectives towards the criteria for legal validity. The
10 Margaret Jane Radin. "Reconsidering the rule of law." The Rule of Law and the
Separation of Powers. Routledge, 2017. 37-76.
11 Herbert L. A. Hart “The new challenge to legal positivism (1979)." Oxford Journal
of Legal Studies 36.3 (2016): 459-475.