Munir on The Necessary Connections Between Law and Morality: Assessing the Hart-Fuller Debate

Muhammad Munir, International Islamic University, Islamabad, Department of Law, has published The Necessary Connections between Law and Morality: Assessing the Hart-Fuller Debate. Here is the abstract,

This work examines Hart’s argument that law and morality are totally separate from each other. It discusses Hart’s views on whether there are some necessary connections between law and morality; what is the minimum content of natural law for Hart? What is Hart’s methodology regarding the grudge Nazi informer case? Would Hart’s methodology regarding the grudge Nazi informer case make any difference as far as the outcome of the case is concerned? What are Lon Fuller’s eight conditions of inner morality? What are Fuller’s arguments in support of the view that law and morality are inseparable? How did Hart respond to Fuller’s eight conditions of inner morality? The main findings of this work are that Hart believes that the necessary connection between law and morality is that both have common terminology as well as content but it does not mean that morality has influenced law. Hart argues that any legal system must have the minimum content of natural law in order to be good. He invokes a moral principle to justify his methodology regarding the grudge Nazi informer case and to tell the naturalists that they are wrong. Fuller argues that there are eight conditions or principles of inner morality in making a law that must be satisfied by every legal system. He mentions that no compliance with any principle of inner morality means that there is no legal system, however, complete compliance may be difficult in practice. Hart’s rejection of Fuller’s position is absurd and unacceptable.

Download the paper from SSRN at the link.

Bateman on Radbruch, Fuller, and Hart on the Choice Between Natural Law and Legal Positivism @cg_bateman

C. G. Bateman, University of British Columbia, Faculty of Law, has published There Ought to be a Law: Gustav Radbruch, Lon L. Fuller, and H.L.A. Hart on the Choice Between Natural Law and Legal Positivism at 40 Journal of Jurisprudence 271-329 (2019). Here is the abstract.

In legal philosophy, there is a question that has troubled scholars for at least two centuries: that of how we ought to understand what the law is, in so far as it may be either something which exists on its own apart from any system of morals, legal positivism, or whether law is intrinsically connected to morality, natural law. Whether the view one takes on this question will produce either better or worse results stemming from the professional actions of lawyers, judges, and legal scholars in both domestic and international legal contexts was both passionately contended by Gustav Radbruch (1878-1949), as a once positivist converted to natural law, and hotly debated by Lon Fuller (1902-1978) and Herbert Hart (1907-1992) on behalf of natural law and positivism, respectively. After living through World War 2 and witnessing the horrible crimes against individuals and humanity carried out by the Nazis, Radbruch came to the conclusion that even if a legal system rested on legal certainty and laws equally applied to equals, if it was bereft of justice, the foundation of law, it was no law at all. Radbruch became convinced that how lawyers, judges, and legal scholars answer the question of ‘what is law’ is of central importance because he saw how the blind fidelity of judges and lawyers to the legal system under the Nazis resulted in gross injustices which law was supposed to protect against, not furnish. In this paper I want to both briefly sketch out how this question came to be of such importance in the legal philosophy of Gustav Radbruch, Lon Fuller, and Herbert Hart, and I want to pose the question as to whether or not we are better off, whether better results will follow for society, if we choose to understand law either as dependent on morality or separate from it. I conclude that some via media, some middle way, between the two perspectives offers the best option, for the simple reason that both perspectives teach us essential things about the nature of law, and it would be irresponsible to merely cling to the good things one perspective offers at the expense of the important things we learn from the other.

Download the article from SSRN at the link. 

Donelson and Hannikainen on Fuller and the Folk: The Inner Morality of Law Revisited @LSULawCenter

Raff Donelson, LSU A&M and LSU Law Center, and Ivar Hannikainen, University of Sheffield, Department of Philosophy, and Pontifical Catholic University of Rio de Janeiro, are publishing Fuller and the Folk: The Inner Morality of Law Revisited in 3 Oxford Studies in Experimental Philosophy (T. Lombrozo and S. Nichols, eds, Oxford University Press, forthcoming). Here is the abstract.

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we should be skeptical of Fuller's inner morality of law in light of the experimental data.

Download the essay from SSRN at the link.

Schauer on Law as a Malleable Artifact

Frederick Schauer, University of Virginia School of Law, is publishing Law as a Malleable Artifact in Law as an Artifact (Lukas Burazin, Kenneth Einar Himma, and Corrado Roversi, eds., Oxford University Press, 2018 Forthcoming). Here is the abstract.

Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of law perceive that project to be analytic and descriptive, but not normative. But the concept of law is itself a human creation, and what humans can create humans can also re-create. And thus there is a different project of conceptual prescription or conceptual revision, one in which the goal is to reflect on (and to prescribe, at times) on how a society ought to understand the very idea of law – what concept of law a society ought to have. This project, which under one reading may have informed both H.L.A. Hart and Lon Fuller in their 1958 debate, need not displace the analytic/descriptive project of conceptual analysis of the concept of law, but, given its provenance going back at least as far as Jeremy Bentham, nor should it be dismissed from what John Austin labeled “the province of jurisprudence.”

Download the essay from SSRN at the link.

Barzun on Jerome Frank, Lon Fuller, and Romantic Pragmatism

Charles L. Barzun, University of Virginia School of Law, has published Jerome Frank, Lon Fuller, and a Romantic Pragmatism as Virginia Public Law and Legal Theory Research Paper No. 6. Here is the abstract.

Jerome Frank and Lon Fuller are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote extensively about the nature of law and adjudication over roughly the same period of time (1930s-1950s), they are typically characterized as standing on opposite sides of the issues that matter most in legal theory. Frank is these days seen as an “extreme” realist, who thought judges decided cases on the basis of irrational biases, while Fuller is best known for being a critic of realism, a defender of natural law, and an influential member of the Legal Process school of legal thought, which is itself seen as a response to precisely those excesses of realism that Frank is said to epitomize. In this essay, I argue that when we place these two thinkers on opposite sides of the traditional lines drawn in legal theory – between realism and process theory, natural law and positivism, instrumentalism and formalism – we miss something important, and importantly similar, in their views about law, adjudication, and human knowledge. In particular, both thinkers maintained (1) that the human self was constituted by a mix of impulses, intuitions, emotions, motives and purposes, only some of which are conscious but all of which shape how the mind perceives the external world; (2) that such motives in judges are activated by the facts of particular cases in a way that can, at least sometimes, serve as the basis for just decisionmaking; and, finally, (3) that the first two observations provide a foundation for legal knowledge of the sort judges properly rely on when deciding cases. I conclude by suggesting that we might think of these common themes as reflecting a “romantic” strain of legal and philosophical pragmatism.

Download the article from SSRN at the link.