The Hart-Fuller Debate on Legal Positivism: Nature and Unjust Regimes

This essay delves into the Hart-Fuller debate, a pivotal discussion in legal philosophy concerning legal positivism. It examines H.L.A. Hart's perspective, including his pedigree, separability, and discretion theses, contrasting them with Lon L. Fuller's internal morality of law. The essay analyzes the relationship between these differing viewpoints on legal interpretation and the question of whether 'unjust regimes' can be considered legal systems. The essay examines Hart’s concept of law, which distinguishes between primary and secondary rules, and the rule of recognition, which is crucial to legal validity. It also explores Fuller's emphasis on the internal morality of law, which encompasses principles like generality, promulgation, and clarity. The essay ultimately considers how these two perspectives relate to each other and to the broader question of how to define law and its relationship to morality and justice, particularly in the context of unjust regimes like Nazi Germany.

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

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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.

Hart - Fuller Debate 7
rule of recognition should also be interpreted internally. This rule requires people to adhere to
the principle rules that are legitimate and legal.13 Hart lays out two conditions that are
mandatory and sufficient for the application of legal systems. First, he states that the valid
rules of behaviour must be obeyed and also, the rules of recognition, change and adjudication
must be incorporated into the common behaviours of the public.
The principle progressed by Hart is susceptible to the same reproach that he labels on the
Austinian theory. Hart rejected Austin’s theory because the force of behaviour can no longer
give rise to obligations; it is not different from a gunman forcing people to surrender their
money.14 However, the situation is also not any divergent if the gunman applies the internal
standpoint in issuing the threat. Even if the gunman believes that he is under command to
threaten, the victim becomes obliged and not indebted to give in to the threats. The behaviour
of the gunman is just as much forcible in Hart’s principle as it is in Austin’s point of view.
The officials of the minimal legal system are the only ones that have taken the internal
perspective applying the rule of recognition which bestows on them the power to arbitrate,
impose and execute the rules.15 Even though the officials believe that they are authorized to
make laws which people are obliged to adhere to, the people are not obligated to comply with
the enactments. The situation is similar to the gunman’s behaviour; the gunman did not have
12 Tay Choon Howe. "An Analysis of ‘the Law’: Legal Positivism." Journal of
Malaysian and Comparative Law 40.1 (2018): 49-66.
13 Julie Dickson. "Descriptive Legal Theory." Encyclopedia of the Philosophy of Law
and Social Philosophy (2017): 1-6.
14 Frederick Schauer. "The Path-Dependence of Legal Positivism." Virginia Law
Review 101 (2015): 957.
15 Lawrence B. Solum, Lawrence B., Lawrence B. Solum Pbase Photo Galleries, and
My Academia edu Page. "Legal Theory Blog." Legal Theory (2017)

Hart - Fuller Debate 8
the authority to order the victim and the victim did not have any obligation to conform with
the gunman’s commands.
The Separability Thesis
The separability thesis emphasizes on the distinction between law and morality. The concepts
between law and morality are entirely different. Any reference made to moral values when
defining law or legal systems, is inconsistent with the theory of separability. H. L. A. Hart
describes the thesis of separability as just simple contention and that the law need not satisfy
the principles of morality.16 The separability thesis implies that the legal system does not have
any moral constraints.
The Discretion Thesis
Hart’s discretional theory states that some cases that arise do not fall under any specific rule.
The rule of recognition might then deny judges the freedom of making decisions in their own
discretion.17 The rule requires judges to refer to some of issues not addressed by the existent
laws to the law makers. Hart’s view on inclusive positivism supports Dworkin’s opinion on
the rule of recognition which states that judges can make their own decision in cases where
the law does not provide for the exact rules.
Hart acknowledges that the judiciary is restricted in two ways. First, the powers of judges to
make decisions are limited to certain cases and they cannot be used to instigate new large-
scale reforms. According to Hart, the authority that judges have when making decisions in
16 Dennis Patterson. "Dworkin's Criticisms of Hart's Positivism." The Cambridge
Companion to Legal Positivism draft of 1 (2019).
17 Tom D. Campbell and Jeffrey Goldsworthy. Judicial power, democracy and legal
positivism. Routledge, 2017.

Hart - Fuller Debate 9
their own discretion is not because of the absence of legal constraints to the decision-making
but rather it is due to the unavailability of the correct legal answers to the cases at hand. The
judges cannot apply the existing laws in their decisions since the possible outcomes could be
numerous.18 In such circumstances, the best option for the judges is to refer the case to the
legislature as opposed to making their own decisions.
There is one powerful objection that makes the discretion thesis vulnerable. When a judge
makes a decision in his or her own discretion and the decision becomes law, the case will
have been decided based on a law that was non-existent during the time the disagreement
came about. If a magistrate grants payment of damages through a law that was instituted in
his or her own discretion, the case will have been based on a non-existent law. The
defendant’s right to a fair trial is thus violated. It is not fair enough that a person is punished
based on a non-existent law during the time when the liability was created. The fundamental
process of fairness and the doctrine of legality require that a liability constitutes an offense if
the law stated so at the time the omission or act occurred.
Lon L. Fuller’s Internal Morality of Law
Fuller argues in the Morality of Law that law is subjected to 8 internal principles of
morality19. The principles are:
1) The expression of the rules must be done in general (not specific) terms.
2) The promulgation of the rules must be done publicly.
3) The effect of the rules must be prospective for most of the part.
18 Alexander Passerin d’Entreves. Natural law: an introduction to legal philosophy.
Routledge, 2017.
19 Edwin W. Tucker. "The Morality of Law, by Lon L. Fuller," Indiana Law Journal: 40
(1965) 274-275

Hart - Fuller Debate 10
4) The terms used to express the rules must be understandable.
5) The rules should not be inconsistent with each other; they must be correspondent.
6) The rules must not impose extreme conduct beyond the authority of the parties
affected.
7) The subject must be able to rely on the rules; they should not be amended frequently.
8) The administration of the rules must be consistent with what is written down as the
law.
Fuller articulates that no law can achieve social order if the system of rules flops to content
the eight ideologies of legality.20 A system that does not promulgate the rules publicly and
does not use understandable terms is incapable of controlling the behaviours of people. The
people will not be able to determine what the law requires. According to Fuller, the internal
principles have two respects in accordance with morality. To begin with, law conforms to an
intended condition of social order. Secondly, it does so by valuing the independence of
people in decision-making; this helps in guiding people’s behaviour. Fuller states that laws
cannot conform to the principles of legality thus it is necessary that they constitute morality.
Some moral values are in-built in some laws thereby creating an internal conceptualization
between law and morality which contradicts the separability thesis.21
Hart regarded Fuller’s theory as vague and that Fuller failed to distinguish between efficacy
and morality.
20 Charles L. Barzun "Jerome Frank, Lon Fuller, and a Romantic Pragmatism." Yale JL
& Human. 29 (2017): 129.
21 Vittorio Villa. "Neil MacCormick’s legal positivism." Law as Institutional
Normative Order. Routledge, 2016. 53-72.

Hart - Fuller Debate 11
“[T]he author's insistence on classifying these principles of legality as a "morality" is a source
of confusion both for him and his readers.... [T]he crucial objection to the designation of
these principles of good legal craftsmanship as morality, in spite of the qualification ‘inner,’
is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions
of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections
on its purpose may show that it has its internal principles. But to call these principles of the
poisoner's art "the morality of poisoning" would simply blur the distinction between the
notion of efficiency for a purpose and those final judgments about activities and purposes
with which morality in its various forms is concerned.”22
Hart articulates that all deeds including lawmaking and poisoning, which are virtuous and
impermissible respectively, have internal standards of efficacy and that they should not be
mistaken for morality. Hart acknowledges that eight principles of legality are internally built
in the existing law conditions. The principles do not bring about a connection between the
concepts of morality and law.23
However, Fuller’s principles construe the moral ideals of fairness. The promulgation of rules
publicly and in terms that are understandable is a major component of efficacy; it also
doubles up as a ethical ideal. Morally, it is not right for a nation to impose rules that have not
been broadcasted in the presence of the public and in understandable terms. States should not
enact nor implement inconsistent and retroactive rules; rules that provide for impossible
actions. Impermissible acts such as poisoning could have their internal criteria of efficiency,
22 Frederick Schauer. "Fuller's Fairness: The Case of the Speluncean Explorers." U.
Queensland LJ 35 (2016): 11.
23 Charles E. Marske, Charles P. Kofron, and Steven Vago. "The Significance of
Natural Law in Contemporary Legal Thought." The Catholic Lawyer 24.1 (2017): 5.

Hart - Fuller Debate 12
however, the criterions are very different from the ideologies of legality. This makes the act
inconsistent with the provisions of moral ideals.
Nonetheless, the principles of Fuller do not operate as moral ideals; they operate internally as
aspects of efficacy. Fuller concedes that the legal systems of nations are in consistence with
substantial disparity from the eight moralities of legality. The legal conditions are
promulgated publicly, but in vague terms that bring about ambiguity. Most of the times the
officials also fail to fairly administer the laws in the best interest of th3e legal systems. The
administration of laws is sometimes unfair and unjust to other people. The created
divergences are said to be inconsistent with the legal system of a nation if they render the
system incapable of executing its primary mandate of guiding the social behaviours of
people.
The eight principles of legality function as conditions of efficacy not as moral ideals thereby
making them in-built conditions for law. Fuller’s legacy in advancing the theory of legal
positivism intends to extinguish the implications brought by John Austin’s theory.24 Fuller
discredited Austin’s view that the essential mandate of rules is to control behaviour. In this
type of legal system, the rules are defined as guidance for intelligent creatures by other
intelligent beings. The said beings that guide their peers are said to have power over them.
Austin’s theory seems to advance a system that involves rulers and subjects. Austin defines
law as rules set by those in power to govern people. Failure to subject to the rules leads to
punitive measures. Fuller seeks to oppose these implications that are raised by the Austinian
theory.
24 David Lyon. "Moral Aspects of Legal Theory 1." Law and Morality. Routledge,
2017. 109-140.