Q1
Fuller admires the ingenuity of Hart’s general account of law; in particular, Hart takes law to be separate from the contentiousness of morality, yet also includes an account of sovereign obedience without the crude Austinian story of threats backed by sanction. While Fuller agrees that laws must include a normative dimension to generate the right kinds of reasons for its subjects to obey (or a “fidelity to law”), Fuller disagrees that law is just a sum of certain descriptive social states of affairs. To Fuller, law is purposive and instrumental to advancing the ends of humans, so it must somehow capture how law affects our practical reasoning.
Fuller’s account of law is best understood to criticize Hart’s approach to the normativity of law. In short, Hart’s account of law embeds normativity through a consensus among legal officials, which then sets a groupwide standard that officials use to influence and coordinate the social behavior of citizens; notice here that citizens do not need to have reasons for accepting the law and, in theory, can be coerced by officials. This problematically resembles Austin’s gunman view. Instead of building a theory of law based on the officials at the top, Fuller pushes the thought that law should start with its subjects and what is important for them.
Fuller understands the normativity of law as giving citizens the right kinds of reasons to obey the law. This is no coincidence. For Fuller, law must be designed in such a way as to generate the right reasons for obedience instead of the wrong reasons like coercion. Coercion does not accurately capture our relationship to the law and our sense of obligation. Fuller’s architecture of law is guided by eight principles, which Fuller calls “the internal morality of law.” (Fuller,1958,p644-645) Sensitive to the contentiousness of morality, Fuller provides formal principles which laws must conform to in order generate the right reasons for obedience. In contrast, Hart’s account of law need not follow Fuller’s eight principles; for Hart, anything flowing from the rule of recognition is valid law.
Fuller takes issue with Hart’s lax standards for what counts as law. Fuller illustrates the incoherence of Hart’s account through Nazi law (specifically, the grudge informer example). More generally, Nazi law clearly fails to conform to Fuller’s eight principles and thus fails to be law, yet Hart would understand Nazi law as valid law. Hart may understand Nazi law as having evil content, but it would be odd to have “loyalty” to evil laws. For Fuller, any reasons generated by evil laws are the wrong kinds of reasons that stifle good ends. This leaves little recourse for the morally upstanding Hartian judge to decide on Nazi law that is putatively valid. Fuller correctly argues that law must be capable of generating the right reasons for obedience and laws take this form by adhering to the eight principles, which Fuller takes to be “moral” principles because they are directed towards good ends. If we understand morality in terms of this good end, then it appears that Fuller has established a connection between law and morality.
Fuller’s thesis on the purposive nature of law cuts deeper into legal positivist approaches than first impressions. In what follows, I go beyond what Fuller claims. Fuller understands the purposive dimension of law as a better depiction of the normativity of law as a phenomenological feature of legal systems. But Hart may respond that “it doesn’t look like that to me.” (Fuller,1958,p631) A plausible way of breaking this stalemate is to look closely at human nature and what humans strive toward. Fuller notes that law “must represent a human achievement” and the “respect we owe to human laws” is different from the laws of gravity. (Fuller,1958,p632) Human laws are not like the laws of gravity because they are not static facts about the world. Laws must always be justified in relation to what is important for humanity and what unifies competing moral values. Let us call this general collective aim, echoing Aristotle, “human flourishing.”
It is clear that Fuller does not aim to provide a substantive account of what is specifically valuable for each individual because flourishing can be realized in differing ways between individuals. This is less a “moral” claim than it is a claim about human nature. Fuller respects the controversial nature of morality, especially if we mean “morality” to be a theory of right action or a theory of what is good. However, it is possible to state the function of morality without specifying its contents; Fuller’s eight principles are thin, in part, for this reason. These principles do more than strive towards morally good laws; they strive towards the shared ultimate end of both law and morality, namely, human flourishing. Flourishing provides reasons for the subjects to obey the law since it taps into the same motivational ends as morality. On this view, both law and morality must be justified in terms of human flourishing, so, to side with Hart, it may not be entirely accurate to say that law and morality are “necessarily” connected.
This reading of Fuller cuts to the core of Hart’s account of law. Flourishing explains why dissenters of a particular legal system should adhere to the law: namely, they have an interest in their own flourishing. There is some strain in Hart’s account of motivating dissenting citizens to obey the law without resorting to coercion; problematically, legal officials do not have to care about the flourishing of their citizens. By and large, if we accept the premise that law must be conducive to the flourishing of its subjects, and also that morality is also conducive to the flourishing of its subjects, then we are bound to see some overlap between law and morality.
After many years, the pedagogical upshot of the Hart-Fuller debate is the variegated nature of the questions raised, particularly in relation to ethics. We see with Hart that analytic jurisprudence must account for aspects of law as it exists in the world. Speculative claims of law being commands or predictions have little theoretical purchase when there are wide disparities with how we experience the phenomenon of law. However, Fuller teaches us that a purely sociological approach to law is also deficient. Law is a human construct and it is appropriate to understand law as purposive in relation to its subjects. Fuller pushes Hart to consider the normative implications of completely divorcing law and morality.
To be clear, I think the Hart-Fuller debate is deeper than a critique of positivism or Hart’s particular brand of positivism. Nevertheless, a forceful argument can be made that Hart can subsume Fuller’s eight principles into his brand of positivism and thereby undermine the necessary connection between law and morality. So, in a technical and narrow sense, Hart may have the better of the debate. Of course, a comprehensive response is beyond the scope of this paper. Interestingly, Fuller seems to be worried about a different and classical question related to political obligation. This blurs the line between analytic jurisprudence and political theory, and it seems to push Hart into deeper waters. A striking feature of this characterization of Fuller seems to ally him with Dworkin.
Q2
The debate requires some background on Hart’s answer to “what is law” before the relevance of Dworkin’s objection becomes clear. Hart builds his theory of law by first distinguishing between “primary” and “secondary” rules. He argues that primary rules alone cannot work for sophisticated societies because they are uncertain, static, and inefficient. In response to uncertainty, he introduces a key secondary rule, a rule of recognition (“RoR”), which establishes legality and allows us to identify primary rules of obligation. (The other two issues with primary rules are also met by the secondary rules of change and adjudication.)
The debate mostly centers around Hart’s RoR. It is the ultimate criteria of legal validity because it picks out which rules count as law for a particular legal system. Whatever rules are established by the RoR, the legal officials of the system have a duty to apply it. Legal officials treat laws as authoritative by taking on the internal point of view, which is achieved by consensus and convergence (of “social rules”); through this, officials hold the attitude towards their own enforcement of primary rules towards the citizens as obligatory. This account is supposed to provide all the crucial features of law. Dworkin objects and points to a lacuna in Hart’s theory: theoretical disagreement.
Dworkin enters the debate by focusing on what Hart’s account misses. To set the stage, Dworkin uses a key distinction between “propositions of law” (which are either true or false) and “grounds of law” (which make the propositions of law true or false). Theoretical disagreement is about the nature of the grounds of law. Dworkin describes positivists (like Hart) as being committed to the “plain-fact” view of the grounds of law—that is, laws are merely propositional, like books on a shelf that are verifiable by simply getting up and checking. Crucially, Dworkin then explicates a number of “hard cases” which illustrate theoretical disagreement between judges. This suggests that laws are not merely verifiable facts because the judges are not disagreeing about whether some proposition of law is true or false, but the nature of what makes law true or false. The cases show, on Hart’s account, what appears to be legal official disagreeing about the RoR. This is puzzling because legal officials are supposed to agree by consensus and this sort of disagreement is supposed to be impossible, yet such disagreements seem to be everywhere.
This key critique is what Dworkin calls the “semantic sting.” In short, plain-fact positivists understand law to be whatever passes the criteria for validity (for Hart, the RoR). On this view, legal officials would all agree on substantive matters of law and the only disagreement would be propositional, or concern the “open texture” of language. It precludes theoretical disagreements among legal official since it would undermine the idea that there is a shared criterion. This pushes positivists into an absurd view of theoretical disagreement: disagreement is superficial (or worst, disingenuous), or the law has run out and judges must then simply make up laws.
Dworkin takes this to be a knockdown argument against positivism. Laws do not run out and judges do not simply invent new law, as a matter of fact. Judges, Dworkin argues, are guided by moral principles that are beyond the RoR. Dworkin understands the starting point of the question “what is law” to now be in explaining theoretical disagreement. There is no “common criteria or ground rules” and “no firm line divides jurisprudence from adjudication.” (Dworkin,LE,90) It is crucial for Dworkin to establish that Hart’s central idea—a shared and uncontroversial rule of recognition—fails and must always fail due to the problem of theoretical disagreement. Dworkin’s project cannot get off the ground without first overthrowing the possibility of a comprehensive and universally applicable formula for deriving law. If this were possible for the positivist, then the “what is law” question would proceed to look for a more accurate criteria for legal validity. Indeed, the problem of theoretical disagreement sets the agenda for all legal theorists; that is, for positivists, in order to move forward with their project, they must have some answer to hard cases and theoretical disagreement. For Dworkin, he can happily move forward with his project of understanding law through adjudication and decision-making through constructive interpretation.
To be sure, Hart is offering a general account of the features of law whereas Dworkin aims at a theory of adjudication to arrive at an answer to legal questions. Where their agendas overlap is that both accounts provide some explanation for the content of law. If we narrow the debate to the problem of theoretical disagreement, then it seems Dworkin has the better of the debate (if we ignore the subsequent developments of positivism). It is a problem that positivists must confront and it has fractured positivists into separate factions. However, while Dworkin’s has the edge, I do not think it is a knockdown argument for Hart. I want to focus on a way to think about how Hart may respond to the claim that disagreement must be “disingenuous.”
One possible way to understand how judges reason within the Hartian framework is through counterfactuals. For example, the judge would ask herself, “What would other legal officials converge upon?” Judges are making an inference as to what social rule would generate obligations for their society because she cannot practically perform an empirical study of all the legal officials in her society. This inference would be informed by self-reflecting on what she finds obligatory. To be clear, the judge is not merely expanding the RoR and merely legislating by engaging in counterfactual reasoning. She is making inferences based on existing empirical facts about the past and current practices of officials. This amounts to a good faith attempt at discovering what the rule of recognition is for a given society.
Through this lens, we may understand theoretical disagreements to be different judges engaging in different lines of counterfactual reasoning. Each judge is trying to discern what the RoR is for a given case. This only becomes problematic for hard cases. For the vast number of cases in a legal system, judges engage in counterfactual reasoning and come up with convergent outcomes—the core of settled meaning is quite large, so reasoning within this core is unproblematic. However, hard case in the “penumbra” unsettle the reasoning process (through the open texture of language, individual peculiarities in reasoning, etc.) and different judges come up with different conclusions. In some sense, the judges do have a disagreement about what the RoR is because they arrived at different answers through divergent lines of counterfactual reasoning. However, in principle, this disagreement can be resolved by performing an empirical study of all the legal officials of the society.
Granted, my explanation does not square well with the phenomenology of judicial reasoning. If I interrogated a judge, they would not explain their job as an exercise of counterfactual reasoning. Dworkinians would likely diagnose my contrived reasoning as a product of the semantic sting. Still, my aim is only to illustrate that the Hartian framework is not completely incoherent even after Dworkin’s forceful critique. I have only offered speculative points which requires deeper analysis, especially as to the nature of counterfactual reasoning, but I am limited here.
Q3
I wish to focus my reflections on Williams v Walker-Thomas Furniture (“the case”) and its connection to scholars that are critical of traditional legal theory. More specifically, I want to focus on liberal theories which start with the presumption of prioritizing an individual’s rights and protecting autonomy. I use these terms quite loosely as my aim is only to provide a modest reflection. I sketch how there is an overemphasis on protecting individual rights (e.g., exercising choice, defending property, non-interference…), and this comes at the cost of ignoring other elements of human flourishing (e.g., social attachments, conditions for wellbeing, communal responsibility…). I provide additional commentary as to how critical scholarship can begin to reform this skewed emphasis on rights discourse.
We can track the rights discourse in the case, especially in understanding the care owed to an individual as limited to guarding their rights. (I will assume the reader is familiar with the facts of the case.) The worry relevant for our purposes is the court struggling to respect the freedom of individuals to contract—bad bargain or not—while also protecting the right to meaningful consent. The court reasons that gross inequality in bargaining power may vitiate consent—for instance, a difference in business knowledge or negotiating power—and to hold somebody to an agreement absent consent would violate their rights. Such rights-based analyses to arguing a contractual claim is not special to unconscionability. Even apart from contract law, the wider Anglo legal system tends to employ this way of reasoning. The rights-based approaches understand the extent of harm to be violations of rights and thereby fails to appreciate other forms of harm.
The best connection to the case is through Patricia Williams’ piece. We may understand the “meta-story” as a direct critique to such rights-based approaches. (Ironically, we can use Dworkin’s analogy to literature to construct an interpretation of Williams’ meta-story.) The rights discourse engaged by lawyers are the “Word Magic” used by “priests” to advance legal arguments. It is necessary to engage in this discourse to be apart of the profession; it is the key to unlocked the gates to this “Celestial City.” The “gods” of this discourse—judges, professors, and theorists—affirm the coherence of rights-based approaches through “word-hurdles” and “playing with the concepts of the moon and of the stars.” In other words, the rights-based approach is continually affirmed by scholars through the game of academic publishing, rehearsing the same methodologies, and setting the agenda with trivial issues.
The metaphor to divinity is no coincidence. While the rights discourse has largely been secularized by positivists like Bentham, it has been progressively elevated in status by scholars, and it has been exaggerated point of sacrosanct. Rights are tethered to austere concepts like justice, equality, and liberty, almost as if we could not sensibly talk about these concepts without appealing to some notion of individual rights. Perhaps the rights-based approach needs to be placed in the background in order to tease out our blind spots. But the question remains: if not this approach, then what should be put in its place?
A possible starting point—although there are many plausible alternative—can be a relational approach. To be clear, a relational approach need not jettison rights entirely; rather, relations are put in the forefront and prioritized over rights. This can be expressed in many different ways, and my aim is only to sketch some possibilities to rebut the claim that there are no other alternatives. The focus on relationships may help us look at other forms of interpersonal harm beyond rights violations. Aaron Mill suggests the individualism of liberalism can hinder us from novel perspectives and thinks about how a starting point might look like through the lens of Indigenous law. One enlightening example is global warming and the constitution: from the liberal perspective, the natural world is not privileged with the same rights of the individual; in contrast, an individual may have robust property rights, so they are protected from, say, a corporation dumping garbage on their lawn. Mill teaches us that our relationship with the world may result in unique harms. Additionally, Patricia Smith also offers a feminist approach to jurisprudence, which further illuminates the gaps in liberalism through patriarchy. For instance, harassment in the workplace or conceptions of imminent harm for self-defence are patriarchal structures of law which disguise themselves under rights discourse. While a relational approach may begin to address such issues, it is perhaps unclear how a relational approach in the forefront can be operationalized in an existing legal system.
Returning to the case, we may try to see what a relational approach can add. A relational approach may empower the plaintiff in the case by teasing out what went wrong between plaintiff and defendant. Instead of focusing on the rights violation of the plaintiff and casting them as a victim, a better approach may look at how the relationship went sour and the actions of the offending party. Perhaps the defendant ought to have been more accommodating to the plaintiff and been sensitive to the socio-economic circumstances while conducting business, or look at each party’s relation to the community. Even more ambitiously, perhaps we may look at each party’s relationship to the government—for example, what social support is owed to undereducated and marginalized groups, and what is the role of commerce in underserviced communities? Nonetheless, a possible lesson from the case and the judicial reasoning might be that reform must be incremental.
A legal system and political culture entrenched in rights cannot be abolished overnight. Nevertheless, it is possible to work towards change from within the existing tradition by slowly changing the discussion. For example, Fuller, while squarely within this tradition, takes a step closer to reform by insisting that law must adhere to a minimal standard for it to deserve our loyalty. Professor Nadler’s approach to equity also seems to push forward the importance of a more meaningful conception of freedom that is sensitive to an individual’s purposiveness and wellbeing. Without such incremental steps, we might imagine that the case would not have even stopped to consider the possibility of unconscionability.
Dworkin may further assist with this project by providing a methodology for reform. For example, laws can be “constructively interpreted” to accommodate progressive social change. Suppose social norms increasingly push for mutual honesty in contractual dealings and is consistent with the purpose of contract law. We may then look to compare competing interpretations which fit this general category, like economic explanations. Next, we may show how good faith justifies contract law as a whole and why this interpretation puts contract law in the best light. One way to show this might be that it would give us the correct result in the case above—that is, it frames the issue as a duty breached by the defendant rather than as an incapacity in the plaintiff. This method provides a sensible way of communicating with traditional approaches to demonstrate why reform is necessary.
While some critical legal scholars have suggested a complete rejection of traditional jurisprudence, a more attenuated approach can lead to more meaningful change. Perhaps this could take the form of a more diverse methodology or include novel perspectives into the discussion. In any case, the case in light of critical scholarship offers an alternative pedagogical approach that is more valuable for reform than abstract and overly nuanced academic debates.
Philo-so-fun 