H.L.A. Hart, the outstanding British legal theorist of the twentieth century, wrote an accessible book outlining his version of legal positivism called The Concept of Law. The ostensible task of The Concept of Law was to help law students get their thinking about “law” as a concept clear, to show them what we really mean when we describe something as a “law”.

Hart’s big claim, which he did not manage to hold to consistently and which subsequent generations of legal positivists have often wanted to qualify or abandon, is that although law in fact often reflects and contains moral judgments, there is no necessary connection between law and morality.

Legal positivism worries that by saying that all valid law necessarily has a moral weight, natural law theory encourages the mistaken assumption that anything which is called law necessarily has a moral weight and therefore leads to people being insufficiently critical of laws which are, in fact, deeply unjust.  As H.L.A. Hart put it: “however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to moral scrutiny”.

Natural lawyers worry that by setting questions about the morality of legal rules to one side, by putting those questions into a separate box, legal positivists both misdescribe law and make it easier for lawyers to become pure technicians who never take the time to ask themselves whether what they are spending their time doing actually contributes to the human good or in fact serves evil. As Fuller puts it: ‘In its concern to assign the right labels to the things men do, [legal positivism] seems to lose all interest in asking whether men are doing the right things.’[1]

After the Second World War, the debate between about whether law had an inner morality so that certain moral values are always promoted if a regime governs according to law was conducted between the British legal positivist H.L.A. Hart and the American legal scholar Lon L. Fuller. The debate was focussed around how to make sense of the way in which the Nazis governed Germany and the territories which they conquered. Were the Nazis governing through law, and so their citizens and subjects were faced a genuine moral dilemma about whether to disobey the law? That was H.L.A. Hart’s position. Hart’s position is easy to state: “Under the Nazis there was law, even if it was bad law.”

Fuller argued instead that the way the Nazis governed was not through law but was a perversion and a violation of law, so that the commands issued by the Nazis simply failed to count as law. They were orders issued by thugs and gunmen not authoritative, presumptively binding, commands.

In part, the disagreement between Hart and Fuller arises because they are each focussed on a different question. Hart was trying to define what law is as a concept; Fuller was trying to show how law works as a technique. Hart’s focus is on language, semantics, and formal logic, Fuller is interested in trying to understand the benefits and mechanisms of legal order as a form of governance.[2]

Hart attempts to give an immanent account of how laws can be rules which create obligations of obedience, though he is at pains to distinguish between a legal obligation to obey and a moral obligation to obey. In many cases, Hart thought that the legal obligation to obey and the moral obligation to obey would coincide in practice but he thought that there would be cases in which the legal obligation to obey existed but not the moral obligation.

The weakness in Hart’s position exposed by Fuller is this. Hart wants to say that “law surely is not the gunman situation writ large.”[3] To do this, Hart argues that a legal system is based on certain ‘fundamental accepted rules specifying the essential lawmaking procedures.’ Fuller argues that compliance with the procedural requirements for making law is required, save in exceptional cases, if the commands issued by a sovereign are to count as laws rather than orders issued by a gunman. In other words, Fuller argues that morality is connected to law in not one but two ways. Fuller agrees with Hart that once you have identified whether something is law or not, there is an important question about whether it is a good law or not. But Fuller also insists that there is a morality to law-making. The procedural requirements attached to law-making are good because when commands issued by authorities are issued in compliance with those procedures, citizens and subjects know where they stand. They know what the rules are and they know how the rules will be applied to them.

The reason why many of the commands issued by the Nazis were not law is, according to Fuller, because those commands were not issued in compliance with the procedural morality, or what Fuller calls ‘the inner morality of law’. Thus, for example, the Nazis issued secret laws, so people would be punished for breaking a law they could not have known about.[4] Secret laws were also issued to legitimise the killings which occurred in the concentration and death camps.[5] The Nazis issued retrospective laws, so that people were punished for something which only became illegal after the person had committed the act. The Nazis applied laws by analogy, so that people were convicted of crimes based on arguments that their actions were similar to something the Nazis had declared to be illegal. When in 1934, more than 70 members of the Nazi Party were assassinated on Hitler’s orders, he passed a retrospective law declaring that the killings were lawful executions.[6] Most blatantly of all, in Kristalnacht and whenever it suited their purposes, the Nazis would simply bypass the legal forms entirely and ‘act through the party in the streets’, terrorising and victimising. In short, Jews and others living under Nazi rule never knew where they stood. They were not living, argues Fuller, under a legal system but under a reign of terror.

For Fuller, the heart of the rule of law was the idea that “in acting upon the citizen … a government will faithfully apply rules previously declared … If the Rule of Law does not mean this, it means nothing.”[7] This conception of the Rule of Law was, he argued, sustained by a commitment to eight precepts of good rule-making, precepts which he described as the inner morality of law.

Fuller’s eight principles of the rule of law are that:

1. Laws must be general
2. Promulgated
3. Prospective
4. Clear
5. Non-contradictory
6. Not impossible to comply with
7. Not constantly changing
8. Enforced by officials in congruity with what is written down

Fuller claimed that governing according to law required some degree of commitment to these eight principles, such that any departures from those eight principles was exceptional and required special justification. When these eight principles are generally obeyed, citizens and subjects know where they stand. When they are generally disregarded by rulers, citizens and subjects enjoy no meaningful freedom.

In Fuller’s own words: “When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality- when all these things have become true of a dictatorship, it is not hard … to deny to it the name of law.”[8]

Fuller’s account is consistent with that of the twelfth century writer, John of Salisbury, who argued that “Between a tyrant and a prince there is this single or chief difference, that the latter obeys the law and rules the people by its dictates, accounting himself as but their servant.”[9] The difference between the prince and the tyrant is that the prince counts himself as bound by the law.  Law is, for Fuller, a way in which power is disciplined and put to use to establish a framework in which people may flourish. Tyranny is governmental lawlessness.[10]

Fuller stoutly defended the claim that his eight precepts were the inner morality of law (as distinct from the external morality of law which concerned ‘the proper ends to be sought through legal rules’).[11]

When the revised edition of The Morality of Law was published in 1969, Lon L. Fuller added a fifth chapter ‘A Reply to Critics’. As he explained in a letter he wrote to H.L.A. Hart on 6 March 1969, the main accusation Fuller was seeking to rebuff was that “respect for the principles of legality is merely a matter of ‘efficacy’ …”[12] In that additional chapter, Fuller develops and extends his argument that law-making in line with his eight principles is other regarding. He demonstrates, by comparing law with a regime of managerial direction, that “the enterprise of governing by rules embodies a certain respect of persons as moral agents.”[13]

Fuller thought that inner morality of law was “a necessary, though not a sufficient condition for the realization of justice, that this morality is itself violated when an attempt is made to express blind hatreds through legal rules, and that, finally, the specific morality of law articulates and holds before us a view of man’s nature that is indispensable to law and morality alike.”[14] The view of human nature which underpins law is “the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.”[15]

The novelty of Fuller’s position is that he presents his inner morality of law as a kind of procedural natural law. Unlike traditional ideas of natural law, Fuller is not arguing that the procedural morality of law is a higher law, instead he says it is like the natural laws of carpentry. Nonetheless, Fuller’s assumptions about human flourishing and about the importance of freedom and procedural fairness make best sense if understood in conjunction with a robust belief in substantive natural law.

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[1] Fuller, ‘Fidelity to Law’, 643.

[2] Kenneth Winston, ‘The Internal Morality of Chinese Legalism’, [2005] Singapore Journal of Legal Studies 313-347 at 313.

[3] Hart, 603.

[4] Fuller, ‘Fidelity to Law’, 651.

[5] Fuller, ‘Fidelity to Law’, 652.

[6] Fuller, ‘Fidelity to Law’, 650.

[7] Lon L. Fuller, The Morality of Law, revd. ed. (New Haven: Yale University Press, 1969), 209-10.

[8] Fuller, ‘Fidelity to Law’, 660.

[9] John of Salisbury Policraticus tr. and ed. Cary Nederman (CUP 1991).

[10] Fuller, ‘Irrigation and Tyranny’, 1025.

[11] Fuller, The Morality of Law, 98.

[12] Rundle, Forms Liberate, 118.

[13] Winston, ‘The Inner Morality of Chinese Legalism’, 346.

[14] Fuller, The Morality of Law, 168.

[15] Fuller, The Morality of Law, 162.