Resituating Fuller I: Raz

30 Oct, 2015 GENERAL LAW 0

Resituating Fuller I: Raz

My aim in the foregoing chapters has been to illuminate the content of Fuller’s central jurisprudential claims by giving close attention to the writings in which those claims are articulated, as well as the debates to which those writings understood themselves as answerable.

With this purpose in view, in chapter two I emphasised the instructiveness of Fuller’s unfinished eunomics project for highlighting the dual centres of gravity of his jurisprudential vision—moral value for the subject, and efficacy for the lawgiver—and for revealing his intention to correct the tendency of legal philosophers to neglect the form of law as a site of theoretical investigation in its own right. Against this background, in chapter three I steered the standard reading of the 1958 Hart-Fuller debate towards Fuller, highlighting how and why we should read his contribution to that exchange as an attack on the incompleteness of the positivist account generally, and as a challenge to Hart to explain the positivist understanding of the relationship of law to legality in particular. The debate about Nazi law within that exchange was emphasised for how it challenged Hart to explain the nature of and reasons for a legal subject’s obligation to obey law when the form of the latter falls so far short of conditions in which the subject can possess and express agency in her interaction with that form.

I then turned in chapter four to consider how Fuller developed these ideas in The Morality of Law. Here I suggested that the message that Fuller sought to convey through his model of the internal morality of law is distorted if we regard it as a checklist of criteria that require exhaustive and inflexible application. Instead, I argued, the eight principles must be understood as larger than the sum of their parts, a representation of how governance through general rules works and is made possible and which includes respect for the legal subject as an agent as part of law’s form. I also paid particular attention to both the ‘ethos’ and ‘moral value’ readings of the ‘morality’ aspect of Fuller’s internal morality of law, and highlighted Fuller’s apparent distress in the face of Hart’s interpretation of his claims about the internal morality of law as reducible to conclusions about instrumentality and efficacy, with no regard for the dimension of trusteeship for the fate of persons as agents that Fuller saw as built-in to law’s form. Finally, in chapter five, I explored Fuller’s attempt to explain and address this impasse about efficacy through the introduction of a distinction between law and managerial direction; a distinction that saw him return not only to the kinds of questions about law’s formal distinctiveness that animated his eunomics project, but also opened up new ways of exploring the necessary modes of treatment of lawgiver to legal subject that attend law’s defining formal feature of generality.

There is much in this analysis of Fuller’s jurisprudential writings that is very likely to be congenial to, or at least to share strong affinities with, a number of previous engagements with his thought. This is especially so in relation to those who have suggested that Fuller’s jurisprudence is underscored by an idea of freedom as ‘independence from the power of others’;¹ that Fuller understands the rule of law as ‘inherently respectful of people’s autonomy’;² that a concern for agency and specifically for a view of the person as a free and responsible ‘centre of action’ animates his theoretical claims;³ and, more generally, that if we are to gain the best understanding of Fuller’s position on the moral dimensions of law, and especially its generality, we must shift our perspective from that of the lawgiver to that of the legal subject.⁴ There are equally many commonalities between the reading I have offered in the preceding chapters and studies of Fuller’s thought by such scholars as Kenneth Winston,⁵ Robert Summers,⁶ David Dyzenhaus,⁷ David Luban,⁸ Gerald Postema,⁹ and Nicola Lacey,¹⁰ as well as scholars including Roderick Macdonald,¹¹ Wibren van der Berg, and Willem Witteveen,¹² who have turned to Fuller for his insights into the possibilities and limits of institutional design. Much is also likely to be acknowledged as sound by scholars who, though generally not concerned to engage squarely with Fuller’s jurisprudence, have nonetheless expressed considerable sympathy for his underrecognised insights. Neil MacCormick’s suggestion that Hart’s interpretation of the principles of Fuller’s internal morality of law as ‘merely technical requirements of legal efficiency’ overlooks the possibility that ‘some ways of organising human affairs can have a positive value, and that this value can be moral value, even in situations in which there are countervailing moral values, even overriding ones’, is one striking example.¹³ John Finnis’ comment that Fuller’s reaction to the efficacy interpretation of his principles of the internal morality of law contained ‘more underlying sense than his critics were willing to allow’ is another.¹⁴

It is Jeremy Waldron’s engagement with Fuller, however, that I wish to focus on as a frame for guiding the ambition of the next two chapters to resituate Fuller within the landscape of contemporary legal philosophy. Waldron’s recent works suggest that he wishes to lead fellow legal philosophers towards a reconsideration of some of the narrower, conversation-closing commitments within the project of Anglo-American legal philosophy as it has taken shape since the ascendancy of Hart’s project. ‘The Concept and the Rule of Law’ puts this appeal starkly, with Waldron there inviting legal philosophers to seek a more ‘discriminating’ or ‘less casual and accommodating’¹⁵ concept of law than the prevailing positivist one derived from Hart, which basically boils down to the view that whatever legal officials declare to be such is law. He has also suggested that, as we pursue this task, a better understanding of why having a legal system ‘matters to us’ might be ‘our best guide to what is distinctive about legal as opposed to non-legal modes of governance’.¹⁶

Within this agenda, Waldron has long reserved a sympathetic ear for Fuller’s contributions in the same vein, and has been a key voice among those who question the correctness of reducing the message of Fuller’s jurisprudence to one about efficacy. Moreover, as I highlighted in chapter one, since his 1994 essay, ‘Why Law? Efficacy, Freedom or Fidelity’,¹⁷ Waldron has signalled to form as the site from where Fuller’s jurisprudence and his challenge to positivism proceeds, suggesting that Fuller’s writings might be regarded as the initiation of a research programme to explain what the connection between legal forms and fidelity to law might actually consist in.¹⁸ Significantly for the concerns of this book, the occasion of the 50th anniversary of the Hart-Fuller debate in 2008 has seen Waldron develop this interest in Fuller’s claims about the form of law towards the status, within that form, that is occupied by the legal subject. Capturing Fuller’s challenge to Hart succinctly, and positioning that challenge as a standing question for contemporary legal philosophy, he has proposed that:

Law itself may be an enterprise unintelligible apart from the function of treating humans as dignified and responsible agents capable of self-control; unscrupulous rulers must make what they can of that fact when they decide, for reasons of their own, to buy into the ‘legal’ way of doing things.¹⁹

This convergence of Waldron’s and other scholars’ concerns with Fuller’s jurisprudential agenda suggests something significant for the state of contemporary legal philosophy. Certainly, we are witnessing an increasing and increasingly sophisticated interest in Fuller’s thought generally, and especially with respect to his intuitions about the connections between the form of law and human agency. But, I would suggest, we are also witnessing a new willingness to explore those sites within the field that open up the possibility of bridge-building conversations; to candidly examine the merits of mapping the field along the kind of polarised lines that constituted jurisprudential debate for much of the twentieth century. In short, there seems to be a new willingness to consider whether old enemies might become new friends.

This sense of a common programme provides an appropriate background against which to turn to the task that I have assigned to this and the following chapter; namely, to study the two major projects of contemporary legal philosophy which, by all appearances, have not ‘signed on’ to Fuller in any meaningful way in the past, even if they have turned to address, or to embrace, some of his most central concerns. I refer here to the legal positivism of Joseph Raz, and the anti-positivist jurisprudence of Ronald Dworkin.

To attempt to resituate Fuller’s jurisprudence by reference to these two projects is not to suggest that such is all that is required to meet that task. But because Raz and Dworkin, like Hart, have each contributed to the marginalised position that Fuller’s jurisprudence has occupied for much of the second half of the twentieth century, part of the project of reclaiming Fuller must surely be to examine how and why this came to pass. I turn now, then, to explore how we might resituate Fuller within the landscape of contemporary legal philosophy as it has been constituted by Raz, before moving in chapter seven to attempt the same with respect to Dworkin.

I Fuller and Raz

The version of positivism against which Fuller’s contribution to jurisprudence has mostly been judged so far is obviously Hart’s, and within this, Hart’s claims about the separation of law and morality. The thrust of Hart’s response to Fuller on this point can be recalled from chapter four: that the principles of the internal morality of law do not evidence any necessary connection between law and morality because they are merely principles of efficacy and, as such, are indifferent to the moral quality of the ends pursued through law. Thus, Hart concluded, because the principles of legality are unfortunately compatible with great iniquity, and indeed may assist the pursuit of such iniquity, Fuller failed to demonstrate any necessary connection between law and morality.²⁰

Hart held solidly to this position in both sites where he engaged directly with Fuller’s work, The Concept of Law,²¹ and his 1965 review of The Morality of Law.²² If there are points in those writings where Hart suggests that there might be other ways in which law contains important connections to morality, such as the moral significance that consists in how law must address its subjects as rational agents,²³ they are, at best, only gestures. Otherwise, Hart’s approach was to actively assign the concerns of Fuller’s jurisprudence to a marginal place within debates about law and morality, and indeed about the nature of law generally. In doing so, a scholarly memory of the Hart-Fuller debate was created which turns upon questions that, as we have seen in the preceding chapters, were never in fact Fuller’s primary concern or, at least, which obscured the expression of other concerns.

Part of the project of reclaiming Fuller must therefore be to scrutinise what Hart’s positivism actually boils down to with respect to the questions that were of much larger significance to Fuller. One way of stating this—indeed, to evoke a prism of analysis that is central to my discussion in chapter seven—is to suggest that Fuller was challenging Hart to explain the positivist’s understanding of law’s answerability to legality, as well as the value that Hart understood the latter to stand for.

On the first point, Jeremy Waldron has done much to show how Hart’s answer to Fuller oscillates between ostensibly opposed positions on both questions.²⁴ But on the matter of value, Hart’s ‘efficacy’ answer, as I emphasised at length in chapter five, was a source of enduring frustration to Fuller. Quite apart from the trouble it caused for how his own claims were received, Fuller was also insistent that ‘efficacy’ was an unintelligible answer for positivists to offer when the question at issue was the value that emanates from the existence of legal order, writ large, rather than from a particular end pursued through a particular law.

The debate about efficacy is clearly crucial to diagnosing and resolving the impasse between Fuller and positivism, but in many ways it shields us from Fuller’s still greater concern to criticise positivism’s expansive, permissive concept of law on the ground that such a concept offers no meaningful limits on lawgiving power. On this point of criticism, Hart’s commitments are arguably nowhere better captured than in the passage in The Concept of Law where he elaborates the idea that only officials, not subjects, need hold a critical reflective attitude towards the rule of recognition in order for a legal system to exist. Such a society ‘might be deplorably sheeplike’, and the ‘sheep might end in the slaughterhouse’. According to Hart, however, so long as the legal officials of such a system adopt an internal point of view towards the rules, there is no grounds for denying it the title of a legal system.²⁵

A generous reading might be given to Hart here if we pay closer attention to the context in which the ‘slaughterhouse’ comment arises: his discussion of the two ‘minimum conditions necessary and sufficient for the existence of a legal system’.²⁶ Official acceptance of the rule of recognition that specifies the criteria of legal validity for the given system is obviously one of these minimum conditions, but so too, Hart argues, is the requirement that rules of behaviour singled out by that rule as valid law be ‘generally obeyed’.²⁷ The latter, he explains, is the only condition ‘which private citizens need satisfy’, even if ‘they may obey each “for his part only” and from any motive whatever’, and even though in a healthy society ‘they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them’.²⁸ The assertion that a legal system exists, Hart therefore concludes, is ‘a Janus-faced statement looking both towards obedience by ordinary citizens and to the acceptance by officials of secondary rules as critical common standards of official behaviour’.²⁹

All of this, Hart says, is simply a reflection of the ‘composite character’ of a sophisticated modern legal system: a system that involves the union of both primary and secondary rules.³⁰ But he nonetheless goes on to argue that in an ‘extreme case’—a case, we might safely extrapolate, that is not excluded by the criteria for legal validity supplied by a theory of legal positivism—the internal point of view towards the rule of recognition and its criteria of legal validity ‘might be confined to the official world’, with only officials, not subjects, accepting this criteria.³¹ It is in these circumstances that those subjects, now sheep, may end up in the slaughterhouse.

It thus seems clear that Hart envisages a healthy (or perhaps even standard) legal system as one which takes the attitude of the legal subject toward the legal order seriously. Nonetheless, it seems fair to suggest, as both a practical and theoretical matter, that the ‘sheep to the slaughterhouse’ comment, and the conception of the legal subject which it speaks to, invites a ‘when it all boils down’ understanding of Hart’s positivism that might be stated as follows. Law is a framework for instrumental legal activity which will still properly be regarded as law even when the legal subject is envisaged, or treated, as no more capacious an agent than a mere sheep to the slaughterhouse.

This point offers a fitting segue to the question that lies at the heart of any engagement between Fuller’s jurisprudence and the positivism of Joseph Raz. The question is whether, given the concerns of his own project, Fuller would see in Raz’s legal positivism as undiscriminating a concept of law as he saw in Hart’s: one, that is, which ranges with no apparent conceptual trouble between witless sheep to the slaughterhouse and a fully realised relationship of respect and reciprocity between lawgiver and subject. My purpose in the analysis to follow is to suggest that the answer to that question would have likely been in the negative. Before explaining why, however, the qualifying words in this statement require emphasis. On virtually all points that are crucial to assessing the distance between Raz and Fuller on the question of law’s answerability to conditions beyond the positivist formula for legal validity, including conditions which seem to reveal law’s inherent moral dimensions, Raz’s position is ambiguous or, at the very least, non-committal. This is why, in what I offer below, I do not seek to attribute any conclusive position to Raz that his own writings are not capable of yielding. But I do seek to suggest that Raz can be read as not advancing as undiscriminating a concept of law as Hart did, and, if accepted as viable, that this reading throws up a new site of engagement between positivism and Fuller on questions that were far from exhausted in the Hart-Fuller debate.

To illuminate the bases of these claims, the shape of Raz’s distinctive positivist project must be briefly sketched. Raz adopts the foundations of Hart’s positivism that a given norm is a legal norm due to its membership of a system that is given its systemic quality from the social practice in which officials recognise some norms as law and others not. But the idea of law that then emerges from Raz’s project is quite different to Hart’s. Law, in Raz’s account, is a special kind of exclusionary reason for action. This way of envisaging law arises from how Raz’s legal philosophy is an outgrowth of his wider philosophical inquiry into the phenomenon of practical reason in combination with how he considers law’s defining structural feature to be its claim to possess authority. To understand law through the prism of authority, therefore, is to understand it as something which speaks to our capacity for practical reason in a distinctive way.

I attempt to show below that, when the key commitments of Raz’s legal philosophy are mapped out, some important points of commonality between his jurisprudence and Fuller’s emerge that have likely gone overlooked while positivists have held confidently to their conclusion that Fuller contributed little by way of a compelling critique of Hart’s project. On the question of whether this conclusion ought to be revisited, I expect to meet resistance from those who, even if willing to acknowledge certain points of commonality, will still likely insist that an intractable difference between Raz and Fuller lies in Raz’s foundational positivist commitment to the view that moral questions have no place in determining the existence conditions for law.³² Still, the claim that I wish to defend is that these and other differences, intractable as they might appear, are problematised by what seems to be a commitment shared by Raz and Fuller: a commitment to understanding law as a phenomenon that is fundamentally linked to respect for the legal subject as an agent.

In Raz’s case, this apparent commitment, and why it is problematic, emerges from what I read to be a disconnect between his assessment of the relationship between law and the principles of the rule of law, and his work on the authority of law. As far as I am aware, these two sites of inquiry are generally not brought into close contact with each other for the purpose of analysing the content and features of Raz’s legal philosophy. This makes sense in so far that Raz’s analysis of the connection between law and the rule of law appears to have much narrower aims than his work on authority. Moreover, as I will explain below, this analysis of law and the rule of law represents little departure from Hart’s responses to Fuller with respect to the same question in the Hart-Fuller debate. Raz’s work on authority, however, does mark an important departure from Hart’s positivism. And, in terms of differentiating its concerns from Raz’s analysis of law and the rule of law, this work on the nature of legal authority bears little relationship to the more familiar contest about law’s connection to morality beyond a common defence of the ‘sources thesis’—the argument that the existence and content of law can be identified by reference to social facts alone, without resort to evaluative argument³³—as the correct positivist account of the existence conditions for law.

Yet it is precisely because the brilliance and interest of Raz’s project lies in the interdependence of its elements that it is appropriate to examine how and whether these different sites of his legal philosophy can be reconciled with each other. My starting point for undertaking this examination is to ask how, or whether, Raz’s legal positivism regards the status of the legal subject as that of a robust and responsible agent. While I reserve any final conclusion on this point in favour of the ambiguities of Raz’s analysis, I nonetheless hope to show that Raz’s interest in the legal subject as an agent invites those committed to his project to differentiate the fundamental commitments of their legal philosophy from Fuller’s idea that law is defined by a distinctive form that engenders respect for the legal subject as an agent, and which is morally valuable for this reason, more clearly than is presently the case.

II Raz on the Rule of Law

If Raz’s project in legal philosophy is to offer an interdependent analysis of central characteristics of law, the message conveyed by his essay ‘The Rule of Law and its Virtue’ is that the concept of the rule of law is not among those central characteristics.³⁴ ‘The rule of law’, as Raz explains it, designates the idea that people should be ruled by and obey law, and that the law should be such that people will be able to be guided by it.³⁵

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Resituating Fuller I: Raz