The 1958 Debate


The 1958 Debate

Few students of Anglo-American jurisprudence in the past half-century have not had some kind of encounter with the exchange between HLA Hart and Lon L Fuller in the 1958 Harvard Law Review. The ‘Hart-Fuller debate’, as it became known, grew out of the occasion of Hart’s delivery of the Oliver Wendell Holmes lecture at Harvard Law School during his extended visit to the university in 1957.1 Fuller, then the Carter Professor of General Jurisprudence at Harvard, had been an academic sponsor of the visit, and his letter of support makes apparent that he anticipated much from Hart’s stay in terms of exchange and cross-fertilisation of ideas. As Fuller expresses it in that letter, the preceding three decades had seen the difference in interest and ‘general mood and temper’ between American and English legal philosophy become so great ‘that even the heritage of a common language has at times seemed in danger of being lost in this field’. Hart, however, had been influential in helping to bring jurisprudential thought in England out of an impasse between semantics and conventional philosophy, and so, Fuller hoped, a visit to Harvard might provide an opportunity for him ‘to exercise a similar influence in this country, particularly after he has become able to orient his writings towards the current interests of legal philosophy here’.2

The story of the Harvard visit and the debate which grew out of the Holmes lecture has been well told in Nicola Lacey’s biography of Hart, which reports the bouts of crippling insecurity that Hart wrestled with in the months and weeks leading up to the event, and his palpable relief when the lecture turned out to be a great success.3 Much less, however, is known about the episode from Fuller’s perspective. From Lacey, quoting a former student who was present at the lecture, we learn that Fuller paced agitatedly back and forth at the back of the hall (‘like a hungry lion’) as he heard Hart’s defence of the positivist claim that there is no necessary connection between law and morality unfold.4 On some reports, Fuller was apparently so agitated that he stormed out of the lecture before Hart had actually finished. Either way, what we do know is that Fuller demanded a right of reply, and this response was published alongside the text of Hart’s lecture in the 1958 Harvard Law Review.

Lacey’s research makes clear that Hart regarded the significance of Fuller’s interventions to the development of his own ideas to be negligible. In Hart’s private papers, Fuller is either referred to harmlessly as ‘a nice New Englander with some quite interesting ideas’, or impatiently, indeed scathingly, as the interlocutor who was to put Hart to the inconvenience of having to absorb, and perhaps even respond to his ‘piece of logomachy’.5 Yet a review of the correspondence between the two men reveals that their personal relationship remained at all times candid and collegial, sustained through regular letters and visits from 1957 through to the early 1970s. Certainly, the tone of this private back and forth seems to convincingly override any suggestion that the debaters themselves were anything more than intellectual opponents.

While Fuller’s interventions seem barely to have touched Hart’s understanding of the ambitions of his own project, the same is hardly true in reverse. It is impossible to overstate the significance of the Hart-Fuller debate to the development of Fuller’s jurisprudence. All indications point to how Hart’s lecture inflamed a powerful current of creativity in Fuller that was perhaps exceeded only by an equally powerful current of frustration. In many ways, this was a positive thing: Hart’s unwelcome agenda provided a foil for Fuller to articulate his jurisprudential instincts in far stronger and perhaps also more philosophical terms than he might have had done if he had dedicated his energies to the development of his eunomics project. The many subjects covered in the debate continued to occupy Fuller’s attention in writings from that point until the end of his career.

That is the positive side. On the negative, however, the chapters to follow will starkly reveal the costs to Fuller of having essentially accepted an agenda for debate on Hart’s terms, and of having continually attempted, through to the last words of his final ‘Reply to Critics’ in 1969, to initiate and sustain a conversation that spoke to that agenda. Still more problematic is the enormous extent to which ideas about who won and who lost this or other part of the Hart-Fuller debate have shaped appraisals of the nature and value of Fuller’s contribution to legal philosophy more generally. It is this matter, above all, that I hope, if not to remedy, then at least to reorient through the objective of this chapter to read the 1958 Hart-Fuller debate from Fuller’s perspective. This objective, however, seeks to carry more than simply an effort to add nuance to a particularly rigid scholarly memory. The Hart-Fuller debate deserves our especially close attention as part of the project of reclaiming Fuller, because in my view Fuller’s 1958 reply to Hart, in many ways more than the extended exegesis of his claims that he offers in The Morality of Law, can be read as the most instructive record of the core concerns and ambitions of his distinctive jurisprudential agenda. But we are unable to see this if we remain on the well-trodden path that has been taken by most legal philosophers, or at least legal positivists, in the past half century; namely, the path that starts and ends with an assessment of how he fits with them.

The tasks I seek to fulfil in this chapter are broadly three. The first is essentially descriptive: after offering a brief statement of Hart’s claims in ‘Positivism and the Separation of Law and Morals’, as a foundation for understanding Fuller’s reply, I sketch the basic architecture and arguments of that reply. None of this, nor my summary of Hart’s position, is intended to be a substitute for a careful reading of the debate itself. Indeed, the reader should note that, to avoid unnecessary repetition, I have reserved a detailed account of two sites of Fuller’s reply to locations other than this first, essentially descriptive, overview. Fuller’s reply to Hart on the matter of interpretation, for instance, forms part of my discussion of his views on interpretation and the judicial role in chapter seven, as these questions are important to the conversation between Fuller and Ronald Dworkin that I convene in that chapter.

I also reserve my account of Fuller’s reply to Hart on the matter of Nazi law to the second section of this chapter because, as I explain further below, the centrality of this particular site of exchange between the two scholars to both the popular memory of what the Hart-Fuller debate was about, as well as to a proper understanding of the themes of Fuller’s jurisprudence, cannot be overstated. The Nazi law debate thus deserves a detailed analysis in its own right. Bearing these caveats in mind, however, my general aim has been to provide a sufficiently detailed and descriptive account of the sites of contest in the 1958 exchange to enable readers familiar and unfamiliar alike with the debate to understand the basic arc and claims advanced within it.

My decision to give over the central section of this chapter to a close analysis of the Nazi law debate is motivated by my view that this site of exchange illuminates the impasse between Fuller and Hart on the questions that Fuller regards to be central to the project of jurisprudence in sharper terms than any other site of exchange between them. There is, in short, an enormous amount to be learned from the Nazi law debate, not only with respect to insight into Hart and Fuller’s respective projects, but also for how we might develop a twenty-first century agenda around the question of the relationship between the concept of law and the concept of legality, or the rule of law, and, indeed, on the question of whether positivist standards for legal validity can satisfactorily explain what it is that makes law law-like.

The third task of this chapter is therefore an exploratory one: to consider whether a jurisprudence convened along Fullerian lines, as I have reclaimed it, is capable of yielding a standard for legal validity; or, to use an alternate vocabulary, for determining the grounds of, or existence conditions for, law. The ideas I advance in this third section are suggestive only: indeed, they are intended to invite further consideration of this generally under-explored question, rather than making any claim to having resolved it. But the absence of any strongly stated argument on the matter of a standard for legal validity in Fuller’s 1958 reply to Hart has been an important tool for positivists in their appraisal of the value, or the importance, of his contribution to the core questions of legal philosophy. The task of reclaiming Fuller would thus surely be incomplete without at least some attempt to explore whether this, too, is a site where his jurisprudence deserves to be taken more seriously.

I Mapping the Debate

A Setting the Agenda: Hart’s Claims

Hart’s goal in ‘Positivism and the Separation of Law and Morals’ is to elaborate and defend a positivist legal philosophy that is capable of explaining the normativity of law while maintaining the traditional positivist insistence that there is no necessary connection between law and morality, otherwise known as the ‘separability thesis’. The six sections of Hart’s essay reflect his attempt to address, in turn, six sites of jurisprudential inquiry that raise the question of whether law is in some sense necessarily moral.

The first two sections of Hart’s essay speak to the utilitarian roots of legal positivism and its defence of the separability thesis, and amount to a general endorsement of the utilitarian effort in this vein on the basis that to conflate law and morality not only serves to obstruct a clear theoretical analysis of law, but might also discourage moral criticism of law in practice.6 But Hart is clear that he seeks to depart from the utilitarian version of legal positivism in key ways, most particularly from its adherence to a command conception of law.7 Gesturing to the seeds of what, in The Concept of Law, becomes the thesis that a legal system is comprised of a union of primary and secondary rules, supported by an attitude of acceptance on the part of legal officials, Hart suggests that the real key to the science of jurisprudence lies not in the notion of a command but rather in an acknowledgment of how:

nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures. This is true even in a system having a simple unitary constitution like the British. These fundamental accepted rules specifying what the legislature must do to legislate are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons. They lie at the root of a legal system, and what is most missing in the utilitarian scheme is an analysis of what it is for a social group and its officials to accept such rules.8

A positivist legal philosophy reinvented along these lines can continue to defend the separation of law and morality, Hart insists, because even if law is born of rules—the ‘fundamental accepted rules specifying what the legislature must do to legislate’—that are not themselves law, it does not follow that these rules are necessarily moral in nature.

This is the foundation from which Hart develops the arguments of his essay, beginning with his turn to the question, presented by the American legal realists, of whether the positivist separability thesis is challenged by the tendency of judges to refer to some notion of what the law ought to be when interpreting a rule whose meaning is in dispute.9 The substantial space that Hart dedicates to exploring this question is notable not only because it yields his famous ‘core and penumbra’ model of interpretation, but also for how such is generally consistent with Hart’s tendency in the essay to focus and rest his claims on the example of particular laws and the challenges they raise for the separability thesis, rather than on the wider questions relating to what constitutes and sustains a legal system that we see Fuller seek to emphasise. According to Hart’s ‘core and penumbra’ model of interpretation, law properly so called is comprised only of those core instances where the meaning of law is settled or otherwise clear, and not those penumbral cases of uncertainty where judges must exercise discretion and create new law. Moral considerations might indeed enter the judge’s reasoning in this penumbral space, but this need not disturb the positivist separability thesis because, the argument runs, there is no law, as such, in the penumbra. Nor, Hart says, should we think that the separability thesis is disturbed by how considerations of what the law ought to be might affect the judge’s reasoning, because such considerations of ‘ought’ need not implicate a moral judgement or have any other connection to moral standards.10 Thus, Hart illustrates, by way of example, it would be possible to say that a legal decision is ‘as it ought to be’ even inside a system that was ‘dedicated to the pursuit of the most evil aims’11 such as was the case in Nazi Germany, where lawmakers were guided above all by considerations of what was needed ‘to maintain the state’s tyranny effectively’.12

The fourth section of Hart’s essay sees him turn from the matter of interpretation to the more traditional contest between positivism and natural law on the question of whether the substantive injustice or immorality of a given law ought to go to the question of its validity; a question precipitated by the apparent revival of natural law thinking in the aftermath of Nazism by the German legal philosopher, Gustav Radbruch. As foreshadowed above, I have reserved my account of Hart’s response to this question to the second section of this chapter, below. The thrust of Hart’s position, however, can be briefly stated. In keeping with the view of his utilitarian predecessors that the existence of law is one thing, and its merit or demerit another, Hart wholly rejects Radbruch’s suggestion that the moral quality of the content of law ought to go the question of its status as valid law. As Martin Krygier has neatly captured it, Hart’s position on Nazi law ultimately boils down to this: ‘Nazis had laws, and they were immoral; not a happy story but a simple one’.13

It is only after addressing the question of whether the example of Nazi law challenges the separability of law and morality, conducted as an inquiry into the validity of particular laws that Hart turns in the fifth section of his essay to the question of whether there is some important connection between law and morality in the foundations of a legal system. Hart’s response to this question, which is essentially repeated in The Concept of Law three years later, turns upon two lines of argument. The first speaks to the idea, which Hart readily concedes invites moral inquiry, that every legal system must contain a minimum content of ‘natural law’ if it is to contribute to the goal of ensuring ‘survival in close proximity to our fellows’. Here Hart has in mind the way that a legal system is founded upon rules so fundamental that if it did not have them ‘there would be no point in having any other rules at all’, such as rules that forbid the free use of violence and which constitute the minimum rights and duties of property.14 But it is not possible for legal philosophy to say much else beyond this about the foundations of legal order and the gestures that these foundations make to something moral, Hart argues, because ‘the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument that some fuller overlap of legal rules and moral standards is “necessary”’.15 In short, the point is this: there is something of moral significance in the minimum content of a legal system, but it is not significant enough to play a role in philosophical debates about the necessary connections between law and morality.

Hart’s second defence of why exploration of the foundations of a legal system need not disturb the positivist separability thesis addresses the implications of law’s formal feature of generality. Here, Hart makes a statement, again reiterated in The Concept of Law,16 that becomes important to points that Fuller later seeks to make in his ‘Reply to Critics’. As Hart explains it:

If we attach to a legal system the minimum meaning that it must consist of general rules—general in both the sense that they refer to courses of action, not single actions, and to multiplicities of men, not single individuals—this meaning connotes the principle of treating like cases alike, though the criteria of when cases are alike will be, so far, only the general elements specified in the rules. It is, however, true that one essential element of the concept of justice is the principle of treating like cases alike. This is justice in the administration of the law, not justice of the law. So there is, in the very notion of law consisting in general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles.17

This passage sounds very much like a concession to a connection between law and morality that ought to be of interest to legal philosophers. However, Hart goes on to insist that this ‘certain overlap’ between legal and moral standards ultimately does not compromise the positivist claim that law and morality are necessarily distinct, because:

a legal system that satisfied these minimum requirements might apply, with the most pedantic impartiality as between persons affected, laws which were hideously oppressive, and might deny to a vast rightless slave population the minimum benefits of protection from violence and theft . . . Only if the rules failed to provide these essential benefits and protection for any one—even for a slave-owning group—would the minimum be unsatisfied and the system sink to the status of a set of meaningless taboos. Of course no one denied those benefits would have any reason to obey except fear and would have every moral reason to revolt.18

Having thus dispensed with the question of whether there is a connection salient to debates about law and morality in the very foundations of legal order, Hart returns in the sixth and final site of his essay to the wider questions of the project of legal philosophy with which the essay began. His message, stated briefly, is that a further reason why it is unwise to blur the conceptual distinction between law and morality is because of how such necessarily introduces into debates of legal theory the complex and controversial issues of meta-ethics that belong to the domain of moral rather than legal philosophy. For legal philosophy, then, the agenda must be a narrower one, and this narrower agenda must start by disavowing the natural lawyer’s idea that law is a phenomenon to be understood in purposive terms. Instead, the right path forward is to pursue a descriptive theory of law, untainted by evaluative standards, that in this neutrality is capable of serving the goal of theoretical clarity at the same time as it assists us, in practice, ‘to see clearly the problems posed by morally bad laws’.19 Legal positivism, so Hart’s message goes, is the only philosophy of law that is able to do both.

Of these six sites of analysis that constitute Hart’s defence of the separability thesis, the two most crucial for Fuller’s contest with positivism are Hart’s treatment of Nazi law and his claims about the absence of any theoretically salient connection between law and morality in the foundations of legal order. I will address the matter of Nazi law at length below, and will explore the debate between Hart and Fuller on the moral significance of law’s form as a system of general rules in more detail in chapter five, as this issue became increasingly important to Fuller as he sought to diagnose and navigate the key points of impasse between him and Hart as their exchanges developed.

For present purposes, however, some brief remarks about the general features of Hart’s presentation of his defence of positivism on the law and morality question can be made. First, it is helpful to note how consistently Hart’s claims rest on the conviction that clarity is the guiding aim of legal philosophy. Equally notable, as I have already emphasised, is how his analysis, overall, orients much more naturally to the example of particular laws as the testing ground for his intuitions. This stands in direct contrast to Fuller, whose reply orients consistently to the broader question of what gives a legal system its character as law—what makes it law-like—and thus which is also implicitly committed to the idea that qualitative concerns ought to be allowed to trump the imperative of clarity in those moments where the very intelligibility of the idea of law is at stake.

B Reorienting the Agenda: Fuller’s Replies

(i) The Fidelity Frame

The title of Fuller’s Harvard Law Review essay has often puzzled his critics. But the title in fact directly addresses the points of criticism that lie at the foundation of that response, and which speak to how, in Fuller’s view, the positivist project distorts the aims of legal philosophy in its failure to appreciate that its definitions of what law is ‘are not mere images of some datum of experience’, but rather ‘direction posts for the application of human energies’.20 As he states it in the opening pages of the essay:

Law, as something deserving of loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behavior of state officials. The respect we owe to human laws must be something different from the respect we accord to the laws of gravitation. If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark.21

The foundational thesis of Fuller’s reply to Hart, then, is that a putative theory of the nature of law must be able to explain not only why law commands our fidelity, but why it is capable of so commanding. How in and what ways might law have a moral claim over us, and how might this relate to the conditions that cause law itself to come into existence? Does, or can, Hart’s positivist project answer this question, either explicitly or implicitly?

The ‘fidelity frame’ that sets up Fuller’s reply to Hart thus provides a valuable insight into the general aims of that reply as a whole. With respect to those aims, it is helpful to note the distinctive architectural features of Fuller’s essay. For instance, although he does address each of the arguments advanced by Hart, Fuller does so in a different order than that pursued by Hart himself. This is clearly deliberate, designed to problematise Hart’s agenda by illuminating the kinds of questions and tensions implicit within his claims when they are viewed from an alternate perspective. Thus, Fuller does not address the question of whether a connection between law and morality is revealed when judges interpret a law whose meaning is in dispute until after he has articulated his arguments about the moral foundations of legal order and the problem of Nazi law: the reverse to the order pursued by Hart. As will be illuminated further in my analysis of the debate on Nazi law, below, this strategy is clearly intended to expose Hart’s sense that the problem of Nazi law was a problem about the interpretation and status of particular laws, rather than, as Fuller sees it, a problem of the pathology of an entire legal system. The subtitles that Fuller gives to each of the sections of his essay also bear noting as part of a strategy to respond to Hart by approaching his claims from a different perspective. In contrast to Hart’s minimalist, numbered sections, Fuller’s subtitles frame the problems that he sees as ignored in or problematised by Hart’s analysis in evocative and bold terms. An exchange about whether legal positivism can defend the necessary separability of law and morality becomes, under Fuller’s pen, a debate about such issues as ‘The Definition of Law’, ‘The Moral Foundations of Legal Order’, ‘The Morality of Law Itself’, and ‘The Problem of Restoring Respect for Law and Justice After the Collapse of a Regime that Respected Neither’.

But it is precisely this attempt on Fuller’s part to address Hart’s agenda at the same time as seeking to reorient it that leads to tensions within his essay that are never fully resolved at any point in the ongoing back and forth between him and Hart on the questions arising from that agenda. Moreover, the fact that all of this is referable to and ultimately grounded in the framework of a debate about the necessary connections between law and morality causes as much trouble for Fuller’s attempt to convene a debate as it aids that attempt. There are many occasions where, upon elaborating a given point, Fuller’s return to the ‘law and morality’ framework comes across as somewhat forced. And there are several moments where we gain the sense that the point in question might have been elaborated more naturally within a different frame of reference, such as in a conversation about the conditions of law’s existence, or what it means to anoint a given system of social order with the status of law, or how law gains and maintains authority over its subjects. I will highlight some of the more striking examples of this tension in the analysis to follow, as the importance of recognising and, if needed, seeing through and recasting them into a different frame of reference is an important step towards reading Fuller on his own terms, as well as resituating his jurisprudence on the agenda of contemporary legal philosophy. After all, Fuller’s apparent failure to raise compelling arguments against Hart’s position on the separability thesis was the primary cause of his marginalisation from the inner circle of legal philosophy during his time.

But despite these tensions and obstacles, the argumentative strategy that infuses Fuller’s 1958 reply to Hart is very clear. His aim, pursued consistently, is to point out the ways in which Hart’s positivism provides an incomplete view of law, and to argue for why it matters to fruitful jurisprudential discussion to bring these missing elements back in. Thus, on each point raised, Fuller implores the reader to widen their gaze beyond Hart’s parameters: to ask, for instance, how an effective relationship of communication might be achieved between lawgiver and legal subject, or how a judge understands his responsibility to keep an entire legal system coherent each time he deals with the meaning of a particular law, or to notice how German legal philosophers, legislators and judges alike were charged with the task not just of judging unjust laws, but of transforming a pathological legal order into one worthy of supporting the growth of a new democratic society. All of this grows out of the fidelity to law frame with which Fuller commences his reply.

(ii) Diagnosing the Impasse

Fuller begins his point-by-point engagement with Hart’s claims with a diagnosis: the primary objective of positivist legal philosophy is to preserve the integrity of the concept of law.22 Accordingly, positivists ‘have generally sought a precise definition of law, but have not been at pains to state just what it is they mean to exclude by their definitions’.23 As far as Fuller can see, Hart’s particular version of legal positivism remains squarely within this tradition, in so far as it seeks to exclude ‘all sorts of extra legal notions about “what ought to be” in service of an apparent concern for how if law is infused with some idea of morality, the morality so infused might be an immoral one’.24

Fuller challenges this controversy about ‘infusing morality into law’ by suggesting that it is linked to Hart’s apparent assumption that ‘evil aims may have as much coherence and inner logic as good ones’; an assumption that Fuller answers with the assertion that ‘coherence and goodness have more affinity than coherence and evil’.25 This assertion on Fuller’s part is intended not as a claim of logic but rather simply as an observation about what, in a later essay, he calls ‘the prosaic facts of human life’: practice seems to indicate it.26 Still, Fuller did himself few favours by advancing such an underdeveloped and overstated claim, even if it provides a small window into his enduring intuition that there is something about the form of law, when maintained in an appropriate state, that works against its use for the pursuit of immoral aims. But in the 1958 essay, we are left only with the idea that ‘when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness, by whatever standards of ultimate goodness there are’.27

These comments provide the background for Fuller’s reply to Hart on the question of whether the foundations of a legal order reveal a necessary connection between law and morality. Fuller’s diagnosis of Hart’s position on this point begins by noting the important common ground between them implicit in Hart’s argument that the foundation of a legal system lies not in coercive power, but in certain ‘fundamental accepted rules specifying the essential lawmaking procedures’.28 What Fuller evidently saw in this statement by Hart and the emphasis Hart himself placed on it as capturing the ‘key’ to the science of jurisprudence was the idea that the proper focus of jurisprudence ought to be on the conditions which make lawgiving possible, including, as Hart suggests here, the attitudes of acceptance towards law on the part of both the officials and the ‘social group’ who together constitute the participants of a legal system.

Fuller thus entreats Hart to conversation on this point by focusing on the phenomenon of acceptance that is at the centre of Hart’s claim. According to Fuller, again consistent with the general purpose of his reply to illuminate key sites of incompleteness within Hart’s positivism, what is missing in the positivist position is any sense of how the fidelity to law implied by such acceptance ‘is something for which we must plan’.29 A new constitution, for instance, cannot ‘lift itself unaided into legality’, but rather must rely on a general acceptance from those who will be both its agents and its subjects that it is ‘necessary, right, and good’.30 Fuller’s point, in short, is that the moral viewpoint towards law that underscores its acceptance is something that must be planned for and worked towards: this ‘sociology of fidelity’, as Krygier has astutely called it, does not arise from nowhere.31 Why, therefore, is there no recognition of this in Hart’s analysis?

To my mind, there are few other points in the 1958 exchange that represent such a promising site of conversation between Hart and Fuller on the question of the conditions that make law itself possible than this moment of shared interest in the ‘fundamental accepted rules specifying the essential lawmaking procedures’. But much of this promise is left unfulfilled by how Fuller (even if this is wholly explicable by the parameters of the debate itself) appeals to Hart to explain the nature of these rules that furnish the framework within which the making of law takes place. If they are not born of law, surely these foundations of legal order must be born of morality, not least because the efficacy which underpins their general acceptance must ultimately rest on a moral perception that they are ‘right and necessary’?32

This conclusion is, at the very least, simplistic and underdeveloped, even if its aim—to speak to the terms of the debate—is clear enough. But surely the more important point, framed almost out of relevance by those parameters, is that Fuller is here calling upon positivists to explain how it is possible for law to arise, and to gain and maintain its authority over officials and subjects alike, unless there is some reason, other than coercion, for those participants to accept that authority. The criticism, therefore, is that if the positivist account side-steps meaningful engagement with this question, it exposes itself as essentially incapable of illuminating some of the most fundamental questions about the nature of law. In doing so, moreover, positivism also substantially disserves the ideal of fidelity to law, because it offers little to explain why we go along with law’s authority, why we accept it, as we apparently do, at our own initiative.33

The dance seen here between the point that Fuller appears to be trying to convey and his need to frame it in terms that speak to a debate about the separability thesis is one that permeates much of the 1958 essay. In this instance, the law and morality prism very arguably functions to channel Fuller’s objection into a much more simplistic rejoinder than he might otherwise have advanced, and, in so doing, invites a much narrower conversation than might otherwise have been initiated on the matter of what might explain our attitude of acceptance towards law. A turn to the archival materials is helpful here, in so far as they clearly suggest that Fuller was aware that the vocabulary of ‘morality’ as he used it in this context was at the very least in need of clarification. An especially instructive working note on this point can be found among the draft papers for what was to become The Anatomy of Law, where Fuller offers the following explanation of what he meant by ‘morality’ when exploring the conditions of law’s acceptance in his reply to Hart:

In whatever form the distinction between law and morality is presented, it is generally assumed to be a characteristic of a legal system that it be ‘established’, that is, that it have achieved some measure of obedience within the society it purports to regulate. In this sense it is a truism that the foundations of law are ‘moral’. A legal system cannot lift itself into being legal by fiat. Its security and efficacy must rest on opinions formed outside of it which create an attitude of deference towards its human author (say, a royal law-giver) or a constitutional procedure prescribing the rules for enacting valid law. To say that this acceptance is ‘moral’ means merely that it is antecedent to law. The grounds on which it rests need not be elevated; it may proceed from a simple fear of chaos and a conviction that almost any government is better than none.34

Fuller’s choice to opt for the ‘if not law then surely morality’ approach to engaging with Hart on the question of the conditions of law’s acceptance also sidelined a further conversation that might have been pursued in light of Hart’s declaration that the key to jurisprudence lies not only in the phenomenon of rules but the phenomenon of their acceptance on the part of both legal officials and the ‘social group’ (presumably law’s subjects) who are governed by law. For anyone interested in the place of the legal subject in the accounts of law offered by different legal philosophies, it is worth noting how this ‘social group’ disappears in Hart’s The Concept of Law in favour of a virtually exclusive focus on how the attitudes and practices of legal officials create and sustain the legal order. As I will explain further in chapters four and five, the absence of any meaningful concern for the position of the legal subject and her contribution to the creation and maintenance of legal order is a matter that becomes increasingly important to Fuller’s critique of legal positivism, and thus also to the demands that he places on his own jurisprudence to see to her appropriate inclusion. Awareness of the distance between him and Hart on this issue is not, however, entirely lost in the 1958 debate because, as I highlight below, a central element of Fuller’s criticism of Hart’s treatment of Nazi law relates to how that treatment fails to consider the position in which a debased legal order places its subjects, and thus also the question of whether such debasement has any bearing on the conditions of law’s existence.

(iii) Moralities External and Internal

The fourth section of Fuller’s essay sees him develop this theme of the conditions of law’s acceptance, but here framed in terms of how there is a ‘twofold sense in which it is true that law cannot be built on law’.35 Fuller designates the first of these senses as the ‘morality external to law’, and explains that this ‘external’ morality relates to how the authority that law claims for itself ‘must be supported by moral attitudes that accord to it the competency it claims’.36 But Fuller then goes on to explain why this external morality of support for law on the part of its subjects is insufficient to ensure that law itself possesses the attributes that enable it to function successfully. For this aspiration, he argues, we must also respect the ‘internal’ morality of law.37

Here, therefore, we see Fuller reintroduce the idea that he first sketched in the essay, ‘Human Purpose and Natural Law’,38 where he argues that the institutional form through which any purposive activity is channelled necessarily implicates certain requirements that can be understood as internal to the activity itself. In his 1958 reply to Hart, however, Fuller explores this idea that law possesses an ‘internal’ morality by suggesting that the distinction between law and morality, as it is defended by positivists at the level of a whole legal system, might be restated in terms of a distinction between ‘order simpliciter’,39 and order (‘good order’) that has moral worth in its correspondence to ‘the demands of justice, or morality, or men’s notions of what ought to be’.40

The point Fuller wants to make is that any such distinction is untenable, because all attempts even at order simpliciter must at least be good enough ‘to be considered as functioning by some standard or other’;41