Hart, Wittgenstein and ‘philosophical fantasies’

Last week at the Juris North discussion group, I was lucky enough to hear Cosmin Vaduva of the University of Bucharest present a paper on “philosophical fantasies and their role in concept formation”, focusing on Wittgenstein and Hart. Vaduva’s seemingly unremarkable starting-point was the use made by both Hart and Wittgenstein of a particular kind of thought-experiment: the kind which involves imagining that the world was entirely different from the conditions we know. The obvious candidate in the work of Hart is the Giant Land Crab postulate, which I discussed on this blog some time ago. Wittgenstein’s Philosophical Investigations furnish many more examples. For instance:

if things were quite different from what they actually are ‐ if there were, for instance, no characteristic expression of pain, of fear, of joy; if rule became exception, and exception rule; or if both became phenomena of roughly equal frequency ‐ our normal language‐games would thereby lose their point. The procedure of putting a lump of cheese on a balance and fixing the price by the turn of the scale would lose its point if it frequently happened that such lumps suddenly grew or shrank with no obvious cause.

Or take this grotesque but illuminating example from Wittgenstein’s diaries:

Mutilate a human being all the way, cut off his arms & legs nose & ears & then see what remains of his self‐respect & of his dignity & to what extent his concepts of such things still remain the same. We have no idea how these concepts depend on the ordinary, normal, condition of our body. What becomes of them when we are led by a leash with a ring through our tongues & tied up? How much of a human being then remains in him? Into what sort of state does such a human being sink? We don’t know that we are standing on a high and narrow rock & around us chasms in which everything looks completely different.

The point, for both Hart and Wittgenstein, is that we are as we are, and that the way things are is contingent – the world could have been (could be) utterly different. All our thinking is conditioned by a known and taken-for-granted background, which is given by the way things are and doesn’t need to be thought about. But this imposes limits on our thought which should be acknowledged, even though we may not be fully aware of them. When we think about the role law plays in our lives, we are not thinking about the lives of beings with no need to take in nutrition or protect themselves from attack; when we think about personhood, we are not thinking about the personhood of someone who has been systematically mutilated and debased.

What this means is that any idea that our thinking can attain universality has to be abandoned. Vaduva cited a passage from Joseph Raz on the inherent universality of legal philosophy:

Its theses, if true, apply universally, that is they speak of all law, of all legal systems; of those that exist, or that will exist, and even of those that can exist though they never will. Moreover, its theses are advanced as necessarily universal.

Taken literally, this surely claims far too much. We can distinguish roughly speaking between three meanings of the word ‘law’, in ascending order of abstraction and generality: law(3) would stand for the observed workings of actual legal systems; law(2) would be the law as theorised in a given time and place – the law of Commonwealth England or of Weimar Germany, for instance; and law(1) would be a Platonic essence of law, instantiated in more or less imperfect forms down here on Earth. Raz appears to be saying that the theses of legal philosophy are valid of all law(3) (“legal systems”) and all law(2), and that they have this degree of validity because they are also valid of law(1) – or perhaps because they are, they constitute, law(1). But – Hart might rejoin – this is far too hasty. Apart from anything else, what do we know of all legal systems? Just as anyone generalising about all language would have to accommodate languages using subject-object-verb and verb-object-subject word order – as well as the subject-verb-object system we’re used to – so anyone generalising about all law would have to ensure that their generalisations covered the law of pharaonic Egypt, medieval Zimbabwe and the Paris Commune, not to mention those legal systems which may develop if ever people are routinely clad “like giant land crabs with an impenetrable carapace”. Legal philosophy, if it were to make universal claims, would need to be grounded in outlandishly extensive exercises in historical socio-legal anthropology – and even this would not make it future-proof. Raz’s “necessarily universal” legal philosophy offers to do without this kind of empirical research by lifting the Platonic veil and looking directly at the essential nature of law(1) itself. Hart’s thought-experiment, echoing Wittgenstein’s, suggests that this approach is not only fruitless but pointless; Raz’s universalising propositions are neither true nor false but meaningless, nonsensical.

We can see some of the broader implications of this argument if we trace Hart’s ‘land crab’ thought-experiment back to the context in which he advanced it: that of natural law, and the possibility of identifying a minimum content of natural law. The ‘minimum’ in this sense is not – as it would be for Finnis, Fuller or Simmonds – a starting-point to be fleshed out and built on; rather, it’s the minimum in the sense that it’s the furthest point to which the pretensions of natural law can be driven back. From Hart’s perspective it might better have been called the maximum content of natural law – the most that can or should be conceded to the natural law position. The ‘land crab’ thought-experiment can thus be seen to advance two related claims, one openly and one by implication. On one hand, there are certain human universals – primarily our vulnerability both to the world at large and to one another – which must be addressed by any system of law we can imagine; entirely alien systems built on different principles are possible (contra Raz), but will never be imagined by anyone speculating on systems of law for human communities. (Science fiction writers can knock themselves out.) On the other hand, if this is indeed the minimum content of natural law, the implication is that the universal need to secure individual survival is the only universal need, or at least the only one with which the law needs to concern itself. In Wittgensteinian terms, Hart suggests that a huge variety of different language games can be played under the name of ‘law’; the only content they must preserve is that of securing individual survival (and even this need not be universal). As for what alternative forms of ‘law’ might exist beyond the horizon of even this shared purpose, Hart withholds judgment; but he does not reserve the name of ‘law’ to forms of law that we can imagine, even though these are (necessarily) the only forms on which he can make any comment.

As Vaduva presented it, Raz’s argument stands indicted twice over: of imagining that the systems of law we know have a single, essential ideal at their heart, rather than being bound together by a (limited) shared purpose and a set of family resemblances; and of imagining that this ideal has an inherent necessity and universality, such that entirely different and unknown systems of law could be assumed to embody the same ideal. Against Razian idealism, Vaduva proposed a kind of clean-eyed Wittgensteinian scepticism: why not admit that we have no access to a higher order of being, we know nothing about universals or essences, and the legal systems we’ve got are just the legal systems we’ve got? For me, this went both too far and not far enough. On one hand, to say that we are creatures of our own time, place and culture is not at all to say that we are beings without ideals, even if those ideals can never be grounded in some reality outside time and space. On the other, to say that our legal system ‘just is’ the legal system of human beings (rather than sentient land-crabs) leaves too much unsaid. At Juris North, a discussant pointed out how odd it was that Hart counterposed his own human embodiment to the science-fictional land-crab model, but not to the different human embodiments that surrounded him: isn’t it also the case that our legal system ‘just is’ the legal system of able-bodied adult male citizens? I would turn Vaduva’s proposal around: given that the legal system we’ve got just is the legal system we’ve got, and is the source of all we know about law, why not investigate the law we know to discover what ideals it has concealed about its person – ideals against which it can be assessed and held to account? Ideals in which we happen to believe for cultural and historical reasons are no less ideals, which may be genuinely worth believing in (as far as we can tell). Conversely, ideals which (we believe) are genuinely worth believing in are no less culturally and historically specific, and may themselves be replaced in future.

The conceptual focus-pull I’m proposing – modelled in part on the phenomenological epoche – would make it possible to preserve Raz’s idealism together with Hart’s opposition to essentials and universals. Indeed, we could take the anti-essentialism much further, explicitly considering ‘law’ in terms of the law of England and Wales and the values immanent within it. This is not to say, of course, that the law of England and Wales is the last word in law and the ideal of every idealist. On the contrary, I would argue that the actually-existing law should first be subjected to critique in the name of the values it supposedly embodies, before those values themselves were pushed to their limits. We might start out by demanding the extension of jury trial far beyond the tiny proportion of cases which are currently tried in this way, in the name of the presumption of innocence and trial by one’s peers, and end by proposing that the jury system should be superseded (aufgehoben, as you might say). It would be important not to neglect the first step, though, for reasons that should be obvious.

A candidate set of ideals for the task is given by Fuller’s ‘morality of law’ – which, interestingly, is also introduced in the form of a thought-experiment: through the story of King Rex we discover that it is impossible to imagine a country being run by laws which are entirely incomprehensible, or mutually contradictory, or retrospective… and so on. Hart played down the significance of the principles of legality put forward by Fuller, questioning whether they deserved the name of a ‘morality’ and arguing that they were technical criteria for the functioning of a legal system. But this leaves open the possibility of developing an ideal based on the fullest imaginable realisation of those principles, or values underlying those principles; once such an ideal was sketched out, it would also be possible to assess the functioning of an actual legal system against it.

In short, Vaduva (following Hart and indeed Wittgenstein) showed the way to ridding our thinking about law of universals and essences. Ridding it of ideals is another matter. The key question here is whether a single set of values can be used as criteria for both adequacy and excellence – whether they can function as a morality of duty and a morality of aspiration, in Fuller’s terms. But that’s another topic for another post.

Hart and natural law: reactions

The spark for this series of posts was a brief comment at the end of the Introduction to Hart’s Essays in Jurisprudence and Philosophy:

I hope that in what is a second exchange of friendly polemics between myself and Fuller … I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon’s [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in [“Positivism and the separation of law and morals”] and repeated in my Concept of Law that a minimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification.

As well as wanting to investigate the possible implications of this suggestion myself, I was intrigued to see what writers on Hart had made of it. A quick literature review – carried out by the unscientific method of searching for the name Hart and the phrase “requires considerable modification” on Google Scholar – brought back three papers, by Matthew Kramer, Leslie Green and John Gardner. (This is not a discussion of Hart’s approach to procedural justice more generally, which would have to range much more widely. To name only the most obvious omission, Gardner’s paper is a response to Nigel Simmonds’s book Law as a moral idea – which I read some time ago and, I’m afraid, have not re-read for this blog post.)

Here, then, are our three authors on Hart on Lyons, and on Hart’s later inclination to row back from the idea that “the very notion of a general legal rule applied according to its tenor to all its instances” embodied a form of justice.

Kramer, M. (1997), “Justice as constancy”, Law and Philosophy 16:561-80.

The focus of Kramer’s paper is on Lyons’s argument against classing formal regularity as procedural justice, and on Lyons’s challenge to Hart. I have argued that there is some equivocation in The Concept of Law as to whether procedural justice is merely a technical merit of a well-functioning system of law – just as killing without detection is a technical merit of a well-functioning poison – or a quality which deserves the name of justice, albeit without any necessary moral weight. Lyons argued for the first of these positions; Kramer argues persuasively for the second. Procedural regularity, Kramer argues, “ensures that official conduct in the administration of laws is no worse (and no better) than what is required by the substantive standards of fairness in the laws themselves”; “procedural justice ensures a minimum of substantive justice – a minimum that is also a maximum, to be sure”.

Lyons argued that Hart’s briefly sketched examples of procedural justice – treating like cases alike, following a rule, impartiality – were empty in the absence of substantive criteria of justice; he went on to argue, contra Hart, that the justice of rule-following was no such thing and that rule-infractions were no more ‘unjust’ than infractions of the rules of grammar. In this respect Kramer’s paper arrives at similar conclusions to my posts, by a slightly different route. Where I had argued that Hart’s idea of procedural justice is best understood as a combination of rule-following and impartiality (in cases where discretion is required), Kramer focuses on rule-following and dismisses impartiality; however, he dismisses it as a stand-alone virtue and does not discuss the relationship between impartiality and discretion. Similarly, with regard to the neutrality of laws and the comparison between criminal and grammatical offences, I wrote:

rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice

(“Allocative justice” refers here to the assignment of legal statuses (e.g. ‘guilty’) and of criminal penalties, which are justly allocated when allocated to those who deserve them. The same argument holds if we think in terms of “corrective justice” instead.) Kramer wrote (in 1997):

a charge of procedural injustice can be perfectly apposite in connection with an infringement or a putative infringement of a linguistic norm – provided that the charge pertains to the groundlessness of someone’s condemnation (or exoneration) of the person who has allegedly infringed (or actually infringed) the norm. When we determine whether a procedural injustice has occurred in relation to such a norm, what matters is not the norm’s morally neutral status but the misdirectedness of someone’s judgment about someone else’s compliance or noncompliance with the norm’s requirements.

Kramer’s main argument turns on his reference to procedural justice as “a minimum that is also a maximum”. As such, he argues, it may be profoundly immoral, to the extent of enforcing the violation of moral obligations:

Although an official of course has a moral duty not to enforce a wicked mandate in situations where it is inapplicable, he does not have a moral duty – even a prima-facie moral duty – to enforce the mandate in situations where it indeed is applicable. He has a moral obligation not to go below the minimum of decency secured by procedural justice, but he also has a moral obligation not to treat that minimum as a maximum.

Where procedural justice sets a minimum (preventing unrestrained official harshness), it is moral; where it sets a maximum (preventing unrestrained official benevolence) it is immoral. Since it always does both of these things, it must be considered as, in itself, neutral – neither moral nor immoral. This is a powerful argument, but focuses – as had Lyons – on the justice of the outcomes produced by procedurally just or unjust processes. As I posted earlier, I think it is sustainable that an inconsistent and arbitrary application of the law carries injustice in itself, by singling out individuals for disrespectful treatment on grounds which are not open to them to understand or challenge. There is no difference in this sense between procedural injustice which produces unlawfully harsh outcomes and procedurally unjust favourable treatment: in both cases, injustice is done to the population as a whole, none of whom can have any confidence that the law will address them as individuals responsible for steering their own conduct.

Green, L. (2010), “The germ of justice”, Oxford Legal Research Paper 60/2010.

Green takes his title from one of Hart’s remarks about procedural justice: “though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice”. This ‘germ of justice’ argument stands alongside Hart’s denial of any necessary moral content to the law – “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” – and may seem to contradict it, particularly if Hart is held to his earlier formulation: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”.

Green asks: if the law (as a system of general rules) offers ‘the germ of justice’ and as such has some necessary contact with moral principles (the ‘as such’ here is the connection broken by Kramer’s argument), how can this be reconciled with Hart’s “separation of law and morals” – now commonly referred to as the ‘no necessary connection’ thesis? To be more precise, Green asks two questions: whether the ‘germ of justice’ thesis can be held consistently with legal positivism, and how (if so held) it could be true. An answer to the first question is to point out that the formulation ‘no necessary connection’ may be altogether too broad: to say that law does not necessarily “reproduce or satisfy certain demands of morality” is not to deny a number of other possible claims about law and morality, which a positivist might feel able to concede (e.g. “law necessarily deals with moral matters; law necessarily makes moral claims on its subjects, law is necessarily apt for appraisal by moral standards”). It may then be that a purely procedural morality of law – summed up in a statement such as “a functioning legal system is morally superior to a poorly-functioning system” – can similarly be entertained alongside a commitment to legal positivism (although Kramer, for one, would not accept this). Another answer is to stress that the ‘germ of justice’ is consistent with key principles of Hart’s legal positivism – specifically, what Green terms the ‘social thesis’ and the ‘fallibility thesis’. In other words, we can hold that the application of the law is always (in some, unspecified and perhaps very minimal, sense) a moral endeavour while also holding that the law is a social construction on which morality has no prior claims, and that actually existing legal systems may be highly fallible in terms of the justice they deliver. The ‘germ of justice’ in this latter formulation is reminiscent of Hart’s half-concession towards Fuller (“if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.”); it is a germ that makes no justice.

Green’s answer to his second question covers similar ground to Kramer’s response to Lyons, as well as the conclusion of my post on the purpose of law. Green notes the strong association between norms of allocation and the law, on one hand, and justice on the other: “perhaps we can say that every legal system contains allocation norms, that they are among the most important norms in the system, and that it is among these norms we find norms of justice”. Pursuing this line of thinking, Green notes that “Law is not just any old bunch of social rules”: “if there were general virtues of rule-application, and even if these had something to do with justice, then they would turn up promiscuously whenever and wherever rules are being applied. … If it were simply the ruly character of law that produced the germ of justice, then justice would have no more intimate association with law than it has with grammar or football.” Rather, the function of the legal system is to equip society with “institutions that can identify and authenticate the rules of the system, and that can render binding determinations in any disputes about them”. Hence the connection to allocation norms: “[a]uthoritative adjudication is in its essence an allocative enterprise, for its core function is to settle who is to get what, and on what grounds.” Perhaps, then, the establishment of a legal system (founded on the basic principles of procedural justice) represents the ‘germ of justice’ because it is the fundamental precondition of subjecting society to the rule of law. This remains compatible with the ‘social’ and ‘fallibility’ theses, and with a narrow reading of the ‘separability’ thesis:

To say that a legal system must of its nature settle disputes about certain kinds of concerns, and that these are moral concerns, is not to say that it must do so well or even tolerably. And as Hart insisted time and again, to say that every legal system must deliver the goods to some people does not show that it must deliver the goods to everyone, and that one of the characteristic ways that law can fail, consistently with satisfying the minimum content, is by not delivering them justly. But if we have law-producing and law-applying organs, then we do at least have social machinery by which justice could be made effective

This is an interesting and cogent argument, whose strengths (at least from my point of view) include the fact that I was thinking along similar lines before I read it; great minds, etc. Its key weakness is that – as Green concedes – the route it takes from premise to conclusion does not track Hart’s own thinking; indeed, the rule of law was a topic which Hart seems to have largely avoided, possibly mistrusting its potential for adverse judgments of ‘unlawlike’ legal systems.

Gardner, J. (2010), “Hart on legality, justice, and morality”, Oxford Legal Research Paper 44/2010.

After some fairly knockabout remarks aimed at Nigel Simmonds, Gardner focuses on Hart’s brief and often equivocal remarks about procedural justice (and about Fuller’s ‘inner morality of law’). He concedes that Hart can be interpreted as expressing outright scepticism about the concepts in question (the alternative being acceptance with limited enthusiasm). If a sceptical reading is preferred, Gardner argues, the question is where – in his formulation – the chain is to be broken: is Hart supposed to have believed that law had no necessary connection with the ideal of legality; that the ideal of legality had no necessary connection with justice; or that justice had no necessary connection with morality? In an illuminating argument, Gardner argues that Hart’s conception of law as a system of rules – “general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules” – brings with it an assumption that laws are intended to be followed, and not simply cited by officials as a justification for coercive behaviour modification. It follows logically – whether or not Hart himself would have wished to draw this inference – that, to the extent that more laws within a system are being obeyed intelligently and willingly, that system is more lawlike. In Gardner’s words,

the ideal of legality or the rule of law is an ideal for law because there is a conceptually necessary feature of a legal system, namely that it is a system of rules, which entails that it has a proper way of functioning as a legal system, namely by guiding or (as we also put it) by ruling those who are subject to it.

As for the relationship between legality and justice, Gardner argues that the principles of legality are principles of justice: they guide free and rational individuals in such a way as to make it possible to reach a satisfactory adjustment of claims between multiple individuals. At this point Gardner endorses Lyons’s critique of formal justice (more or less in passing), dismissing any connection between justice and the law in and of itself. As with Lyons himself, the argument here seems to rest on a broader and more expansive definition of ‘justice’ than is usually implied in the phrase ‘procedural justice’. The question of whether, if an unjust society began to follow its rules more uniformly, there would be any gain in justice is not directly addressed.

Gardner sews up the relationship between legality and justice fairly tightly, but in an argument which I found difficult to paraphrase and not much easier to get to grips with. On the relationship between justice and morality he is more inconclusive and to my mind more interesting. He canvasses three readings of Hart on morality and the law, and the ‘inner morality of law’ in particular. One is that Kramer’s reading is correct – Hart believed in justice as a (more than technical) virtue of functioning legal systems, but not as a moral virtue. This reading is well supported by Hart’s own words; Gardner seems to reject it because he finds it too outlandish. A second is that Hart’s lukewarm endorsement of Fuller’s ‘inner morality of law’ should be taken at face value: Hart believed that Fuller had indeed identified a morality of law, but not a complete set of moral criteria for judging the law (which would require attention to the substantive aims of the law). This is weakly supported by Hart’s writing and – perhaps more importantly – would have represented a serious misreading of Fuller, whose ambitions for his ‘inner morality’ were less ambitious than this. The third reading, to which Gardner inclines, is itself inconclusive; perhaps, Gardner argues, the key is that ‘morality’ was a difficult concept for Hart, in whose presence his thinking became more than usually tentative and disconnected.

Reviewing the three papers, Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality’; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.

Hart was clearly resistant to any argument which would suggest a necessary connection between morality and either the structure or the content of law; the evident appeal of Lyons’s formalism to Hart may have derived from its undertaking to sever morality from formal justice. If Hart had reworked his position in CoL to take account of Lyons’s argument, however, I think he might have found it came at too high a price; short of a Kelsenian late-career volte-face, I can’t imagine that the changes would have been any more than cosmetic.

Hart and natural law: the three concessions reviewed

The story so far. Herbert Hart was one of the founding fathers of contemporary legal positivism – the doctrine that laws are created through a specialised social practice of setting down (or positing) enforceable norms for behaviour, and are known and recognised as such by their grounding in that social practice. Sociologically speaking, this may sound uncontentious; the key contribution of legal positivism is the lack of any further stipulations as to what the law, inherently, is or what it is (necessarily) for. In any law-governed society (legal positivism argues) there is a system of laws which are recognised as such and an apparatus of roles and procedures for making and amending those laws; and (as Private Eye would put it), er, that’s it. To say that the legal system of Nazi Germany was a bad legal system – on the basis that it facilitated what are almost universally held to be evil and unjust outcomes – makes no more sense than to say that the language spoken by the Nazis was a bad form of German.

Advocates of ‘natural law’ – the theory that there are coherent and discoverable pre- or extra-legal principles, generally based on morality, by which positive law can be judged – have held that this picture needs to be qualified in different ways. In writings from 1958 and 1961, Hart singled out three ways of arguing the connection between natural and moral criteria, on one hand, and positive law on the other, and made concessions – ranging from major to very minor indeed – to each of them.

Firstly, the Substantive Natural Law position holds that any imaginable legal system – or, perhaps, any imaginable adequate legal system; any legal system functioning as a legal system – will have a certain minimum content: there are certain things that ‘the law’ has always forbidden and always will forbid, murder being the most obvious example. Hart gave this argument extended consideration and was willing to concede – if the minimum content was defined sparingly enough – that it might be correct. However, Hart was at pains to point out that the minimum content itself derived from the brute facts of human existence rather than from morality. Hart’s definition of the minimum content of law, in terms of obligatory forbearance from exploiting fundamental universal vulnerabilities, is compatible with Kelsen’s austere severance of legal from moral obligations: one could argue, following Kelsen, that the moral obligation not to kill and the legal prohibition of homicide are not only two separate norms, but elements of two distinct systems of norms, each of which is offered as a solution to the problems of coexistence in society. Natural law in this light is ‘natural’ in a Hobbesian sense – it is the law that elevates above the state of nature for the sake of survival (rather than, for instance, underpinning the Aristotelian conditions of human flourishing). Nor is there any inherent connection between minimal substantive natural law and justice. A universal and impartial breach of natural law would not be unjust; in the case of any more selective breach, the injustice would derive from the selectivity.

The Procedural Natural Justice position, secondly, holds that there is justice in the correct administration of the law, irrespective of the justice of the outcomes or of the law itself – or, conversely, that there is injustice in the maladministration of the law, irrespective (again) of our assessment of the law itself or of the outcomes reached. There is – by design – no connection between our assessment of natural justice in the administration of the law and the content of the law, natural or otherwise. In 1958 Hart referred to rule-based impartiality as ‘natural procedural justice’ and suggested that this was a moral virtue: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”. In The Concept of Law he wrote, more guardedly, of “apply[ing] a law justly” and referred to procedures to ensure impartiality as “requirements of justice”. In other words, Hart’s 1961 formulation withdraws his earlier concession to the ‘procedural natural justice’ position, leaving open two alternative lines of argument: either justice in this sense is a term of art – a technical term for the appropriate administration of those things called laws – or it is a virtue in its own right. This may be a distinction that makes no difference, however: in the second case justice is not conceived as a moral virtue.

Lastly, the (Natural) Morality of Law position suggests that the law as a system – the properties of the laws themselves as well as the way in which they are administered – can be critiqued on moral grounds. The argument here is not merely that it’s a bad thing for laws to be confusingly worded or badly implemented, although it draws strength from that intuition. Rather, the argument is that subjecting society to governance by law is itself a morally good enterprise, and that the particular moral virtues which it embodies can be found – or found to be lacking – in particular legal systems, in individual laws and in acts of law-making. A key concept in this respect is followability: the law is taken to be a system of norms which addresses its subjects as free, rational and responsible for their own actions – and which is the less ‘law-like’ the less effectively it does so (through the use of laws which are unknowable, incomprehensible, impossible to comply with, capriciously applied, etc).

Hart did not address this argument in his 1958 paper. In The Concept of Law he considered it as a technical argument, on the basis that any system of ‘[social] control by rule’ needs to have certain characteristics – ‘[the rules] must be intelligible and within the capacity of most to obey… [so that], for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey’. Might these requirements be taken as rising to the level of morality? Hart’s response is brief and devastating: “if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” In other words, the fact (as Hart saw it) that unjust and immoral outcomes are entirely compatible with a pursuit of a ‘followable’ system of laws makes the idea of ‘followability’ as a virtue irrelevant or frivolous.

To sum up: Hart concedes the argument for Substantive Natural Law, but only after narrowing its scope to the point of guaranteeing mere survival rather than promoting human flourishing. In 1958 he concedes the argument for Procedural Natural Justice; in 1961, however, he situates procedural justice either as technical excellence in the administration of justice or as a (non-morality-based) virtue in its own right. His position on the Morality of Law is more complex: he argues that the merits described thereby are purely the technical merits of a functioning system of rules, but leaves open the possibility that they can be called a morality – subject to the withering proviso that such a morality, and such a necessary connection between law and morality, appears to have no actual effect on the law. In other words, Hart does not challenge the logic of Fuller’s argument but questions whether it is necessary to analyse the law in the real world, with the strong presumption that it is not.

As we have seen, David Lyons’s papers address the second and third of these concessions, from a position which can perhaps best be described as a radically sceptical formalism. Lyons’s key move – made in both papers – is the technical argument, which he raises to a higher level of abstraction than had Hart: he grants that certain features might represent a defect in the law (or its effective administration), but denies that this necessarily tells us anything about justice.

On Procedural Natural Justice, Lyons’s bracingly sceptical denial that there was any moral virtue in proceeding by rule or in treating like cases alike would certainly have appealed to Hart; a post-Lyons revision of the argument in The Concept of Law might have stressed the idea of procedural justice as a technical merit of a well-administered legal system, to the exclusion of granting it even nominal consideration as a form of justice. However, I’m not convinced that this move is one Hart would have wanted to make. Lyons’s central argument can be summed up in a question posed rhetorically in his 1973 paper: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” As I noted above, considerations of justice come into play in some fields but not others. If we, as a kind of thought-experiment, think of law as a field in which justice may not be involved, there is then no particular reason to think of the administration of law in terms of justice of outcome, or by extension to think of the process of the administration of law in terms of procedural justice. But I think, for Hart, that would have been a formalist move too far. I do not think Hart would have found it necessary or useful to drive a wedge, as Lyons does, between the concepts of ‘law’ and ‘justice’, both of which Hart saw as human, social, culture-bound concepts. While Hart promoted the classification of merits in the administration of the law in neutral, technical terms, I don’t think anything turned for him on not calling these merits principles of justice. Ironically, I think he would have sympathised with Lyons’s devalorised version of rule-following as a way of describing the administration of the law, but rejected as idealism Lyons’s unqualified references to justice as a virtue.

Lyons shares Hart’s lack of enthusiasm for the Morality of Law but criticises it from a different angle. While an inadequately followable law can reasonably be seen as defective, Lyons argues, additional information would be required in order to call this defect an injustice. Hart’s position, by comparison, is both weaker and stronger: weaker, in that he takes no definite position on whether Fuller’s ‘morality of law’ is a moral framework or merely a set of technical considerations; stronger, in that he effectively dismisses the debate as not worth having.

Lyons’s argument, like his position on formal justice, is grounded in his scepticism about the relationship between law and justice. This (as I have argued in both instances) over-reads the moral neutrality of well-formed rules and rule-following. Certainly rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice. This is the case with regard both to practices which may affect the outcome and (perhaps less obviously) practices which cannot – if only because there is no way to be sure, either during or after the process, that any discriminatory practice can be ruled out as not affecting the outcome. To be singled out for special treatment (good or bad) in the course of a court case – even if one has a well-founded confidence in one’s innocence and the fairness of the court – is necessarily, and of itself, to be a party to (procedural) injustice. Similarly, if the state asks citizens to obey a law and obedience is impossible – or only intermittently possible, or unascertainable – each citizen is placed in an anomalous position, and one of unjust disadvantage relative to the large number of citizens who obey the law (or who may be obeying the law, or who may be treated as if they are).

However, I don’t think Hart’s position on the morality of law would have been affected either by Lyons’s sceptical argument or by my response. His position on the virtues of a good legal system, as identified by Fuller, is that these are indeed virtues of a good legal system, in the same sense that sharpness is a virtue of a good knife and undetectability is a virtue of a good poison. He might even have granted the point that Lyons denies – that procedural virtues in the process of making law and administering justice can be considered, by extension, as forms of procedural justice. He might have been resistant to this line of thinking (his references to it in The Concept of Law are guarded at best), but I think fundamentally he would have thought it to be beside the point – neither true nor importantly false, merely irrelevant.

Lyons draws a line – I think incorrectly – between ‘law’ in the world and ‘justice’ in the heaven of ideas. The line Hart draws encompasses law and justice, both located in the world, both variable from one system to another, both amenable to more or less technical assessment. Arguably even morality is inside the line – it too exists in the world and can be invoked (although it need not be) in the workings of the law, as a source of principles and as a means of assessing outcomes. Outside the line are the virtue of procedural justice and the morality of well-written law – and they’re outside not because Hart situated them in a Platonic realm of concepts but because he was indifferent to whether they existed or not; his model had no need for them. The debate between Hart and Fuller was not between two rival framings of the law, but between an advocate of one framing and someone who believed that it was irrelevant – that nothing turned on whether it was used or not. This may account for the occasional asperity of the debate between Hart’s and Fuller’s partisans. Hart’s famous formulation that the morality of law was “compatible with very great iniquity” is, logically, a challenge to the position that it is impossible for an iniquitous regime to have a followable system of laws – this being the only position which would have made it necessary to incorporate the inner morality of law into his thinking. However, the position advanced by Fuller and his successors is merely that an entirely followable system of laws (whatever the laws’ content in all other respects) is more just than the same system would be if it were less followable. This implies that an iniquitous regime, with no respect for its subjects, will have no reason to avoid introducing unfollowable laws; this in turn suggests that it is unlikely that an established iniquitous regime will not have taken the opportunity to introduce unfollowable laws. However, this is not to say that a followable system of laws is not “compatible with very great iniquity”; at its strongest, Fuller’s argument leaves Hart’s position untouched. Hart’s challenge is unanswerable; if Fuller’s model is to be used, other justifications are needed for doing so.

One final point, before I conclude this series of posts by looking at other writers’ comments on these issues. A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?

Two counter-arguments can be envisaged, one minimal and one maximal. On one hand, it could be argued that justice is comparative and distributive: when an outcome is applied evenhandedly to the whole of a society, justice has nothing to say about what that outcome is. It is unjust for one person to be killed; it cannot be unjust for an entire society to perish. Consequently, although the minimal content of substantive natural law embodies the network of collective forbearances required to keep society in existence, this is not a goal of justice. An answer to this is that what the minimum framework of forbearances wards off is not instantaneous extinction but a lawless chaos, in which many injustices would in fact be done: the survival of society is not a goal of justice but a condition of justice, or of the prevention of injustice. On the other hand, it could be argued that justice is – as Lyons suggests – something we know rather little about: from a Marxist point of view, for example, a genuinely just settlement might involve the withering away of the state and the communalisation of private property. The answer to this is that justice is scalar rather than binary: an innocent prisoner detained without trial is a victim of injustice, but she may still become a victim of further injustice (by being singled out for mistreatment, isolation etc). Conversely, a structurally unjust society (e.g. one dominated by a single low-wage employer) may become more just without changing that fundamental condition (e.g. by the introduction of more effective factory regulation).

Let us say, then, that the survival of a functioning society is a precondition of justice, and that the law – as well as being a means to that survival – embodies, however imperfectly, the pre-legal standard and value of justice. If these points are granted, can we still ground Lyons’s scepticism about the relationship between law and justice – or Hart’s bracketing of the inherent virtues of law, so as to discuss laws alongside the rules of games? Does Hart’s “minimum content of natural law” in fact lead us back to natural law theory?

Hart and natural law: Lyons on Fuller

David Lyons’s 1971 paper “The Internal Morality of Law” is an interesting critical review of Fuller’s theory of the same name. Lyons sets out his sceptical stall with two references to claims made by Fuller:

He says that public officials, those who make and enforce the law, are committed to ideals of legal excellence – eight ideals concerning not the substance of the law but whether its requirements can be understood, followed, and met, and how they are to be applied. There ought to be general rules, first of all, and these ought to be clear, consistent, publicized, prospective, satisfiable, constant, and “scrupulously” enforced.

It is not entirely clear, however, why we should suppose that there is such a commitment.

And:

Fuller also writes: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”. This passage is suggestive, though it hardly solves our problem. Why should we say there is this commitment? And what has it got to do with justice?

Lyons cites Fuller’s list of

eight kinds of legal defect corresponding to the eight kinds of legal excellence … a failure to make general rules; rules that cannot be understood, that are inconsistent, not made known to the parties affected, retroactive, or frequently changed; rules that “require conduct beyond the power of the affected party”; and “a failure of congruence between the rules as announced and their actual administration”.

He notes that this last defect can be seen in terms of the failure to apply the law “faithfully, equally, uniformly and impartially”, and hence that the eighth of Fuller’s types of legal excellence corresponds to the supposed virtue of procedural or formal justice (Lyons’s subsequent comments on this were discussed in the previous post). However, this can also be seen in terms of ‘followability’, which is the key value undermined by the other seven defects: just as a law is impossible to follow if it is incomprehensible, if it varies unpredictably or if it sets conditions which cannot be satisfied, it is not in practice followable if it is applied intermittently and capriciously. To say that laws (or systems of law) are followable is to say that they respect their subjects, or at least offer them a specific kind of respect: they address their subjects as free and responsible agents capable of rationally choosing to follow rules. To the extent that they do this (as Fuller argues that they should), they will have the qualities Fuller identifies as ideals of legal excellence.

But how would this view of the law be grounded by anyone who does not necessarily share Fuller’s world view? Lyons concedes that the idea of followability is fundamental to the nature of laws as a means of guiding behaviour:

part of the very concept of a legal requirement is, not that it actually is followable, but that it is supposed to be and may be presumed to be. The idea of law includes that of regulating behaviour in a certain way – by setting standards that people are to follow. And this idea is incorporated in the notion of a legal requirement. If so, from the notion of a legal requirement it might seem to follow that, to the degree a putative legal requirement cannot be used by one to whom it applies to guide his own behaviour, that requirement is defective.

But we’re not out of the woods. We may have identified good reasons for calling unfollowable requirements defective, but “to say this is not to make a moral judgment” (emphasis added). As with the question of whether there is a procedural morality of rule-following, the morality of setting followable requirements does not follow from the fact that they are preferable; the superiority of followable requirements may be a purely technical question.

Can Fuller’s argument be grounded morally? Lyons suggests one solution, noting that “[w]hen a person is penalized for failing to meet an unfollowable requirement, he is treated unjustly.” The practice of penalising individuals for failure to follow requirements is one which engages questions of justice, inasmuch as standards are being applied to multiple people’s behaviour and consequences imposed on those people individually: as soon as two people are penalised for failing to follow a rule, the possibility exists that one of the two is being penalised unjustly. (Whether an injustice can be done if no comparisons can be made – if a rule is only ever applied to one person, or if everyone is uniformly held to have breached the rule – is an interesting philosophical question, although it’s one that can probably be shelved for lack of real-world examples.)

However, Lyons does not find this persuasive:

If we call the rules under which [individuals] may be penalized unjust, that is because individuals are, or are likely to be, penalized unjustly under them. But this kind of treatment is not essential to or inevitable in a legal system – not even one that contains defective requirements … From the fact that a legal system contains rules or requirements that cannot be understood or followed or met, it does not follow that anyone shall be penalized under them or even that the system requires or allows such treatment

He goes on to consider a (hypothetical) community of utopian socialists, each of whom is strongly committed to the success of the community and highly averse to the use of sanctions, and each of whom knows these facts to be true of all the others. Such a community, Lyons argues, would be guided by laws but without any imposition of sanctions; hence any unfollowable laws would not result in injustice, since their inevitable breach would not lead to anyone being penalised. The argument is ingenious but ultimately rests on a kind of idealism – as if to say that the courts and the institutions of punishment in accordance with law are social practices, but the law itself is an immaterial essence. If we see the law – “the enterprise of subjecting human conduct to the governance of rules”, in Fuller’s terms – as a social practice, the distinction disappears: to the extent that legal standards are standards applied to multiple people’s behaviour in order to judge them (whatever the consequences may or may not be), to that extent justice is engaged in the application of the law.

As in his paper on procedural justice, Lyons is keen to dissociate the law from justice; he argues that

the standards that may seem implicit in the law, conceived at least in part as a system of guidelines for human behaviour, would seem to say nothing about what counts as an injustice. They tell us only that a certain kind of requirement or rule is defective – and only because it is not followable. But this does not tell us that the application of such a rule would be unjust.

And:

we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.

On the contrary – Fuller might have answered – while “our understanding of what the law is” may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.

It may be argued – and Lyons would certainly argue – that this conclusion proves more than it set out to, and implicates substantial parts of the English criminal law in the production of injustice (retroactive legislation, reverse onus provisions, strict liability offences). At the moment I’m inclined to think that a feature rather than a bug.

Hart and natural law: Lyons on formal justice

David Lyons’s 1973 paper “On Formal Justice” begins unpromisingly:

A number of legal and political theorists have suggested that public officials who fail to act within the law that they administer act unjustly. This does not mean that injustice is always likely to be done merely because it often happens to be done when officials depart from the law. Some writers have held that injustice is done whenever an official fails to act within the law, regardless of the circumstances. I shall call this type of view “formal justice.”

This is odd, to say the least, as it implies that (formal) injustice is done when a judge breaks a speed limit but not when she decides two similar cases in wildly different ways. In point of fact, the focus of the paper as a whole is unclear; broad formulations such as ‘official deviation from the law’ are frequently used, implying a contrast between official obedience to the law and actual law-breaking, but so too are narrower formulations such as ‘adherence to existing legal rules’. This second concept – implying a rule-driven approach to applying the law – seems to be the focus here:

Such a view may be considered “formalistic” because it places value, in the name of justice, on adherence to existing legal rules without regard to “substantive” factors such as their contents, the consequences of obeying them, their defects or virtues, or any other circumstances of their application. The only condition imposed is that an official must by law follow the rule in his official capacity. Furthermore, those who attempt to account for this view believe that the requirements of formal justice rest directly on such notions as “proceeding by rule” or “treating like cases alike,” which are thought to be at the heart of our shared concept of justice. The basic requirements of formal justice are thus supposed to be exempt from the controversy over substantive principles of justice and their possible justification.

It is also the focus of the third section of the paper, on Hart. In The Concept of Law, Lyons argues, Hart offers three points in support of ideas of administrative justice. (As we have seen, all three of these had been made in less qualified and more moralised form in Hart’s 1958 paper.)

The first bases administrative justice on the precept “treat like cases alike”; the second grounds it on a notion with which the first is often confused, namely, following a rule; the third is rooted in the idea of impartially applying the law to particular cases.

Should we treat like cases alike? Perhaps so, but what does it have to do with justice? Lyons argues that treating like cases alike so has no intrinsic relationship with justice as an outcome – given that the same principle is involved in duties such as promise-keeping and helping those in need – but this is either irrelevant or an equivocation: the point is not that this principle is conducive to justice of outcome but that it is (perhaps) a form of procedural justice, which can be used equally well to measure how justly the law is applied and how justly we carry out our other social obligations. He also points out (as Hart had done) that no two cases are ‘alike’ or ‘unlike’ in and of themselves: two cases can only be judged to be alike by the application of a given set of criteria. In the case of the law, Hart had argued, the criteria to be applied are precisely the rules of the law. Hence:

From the premises that justice fundamentally requires a uniform treatment of cases and that the law prescribes one way of uniformly dealing with them, we are asked to conclude that justice in the administration of the law requires officials to follow the law. But this argument begs the question at issue, which is whether the pattern of treatment prescribed by law is identical (or even compatible) with the pattern required by justice. Once we realize that the justice of a law is not determined by the law, or in other words that the resemblances and differences between persons, acts, and circumstances which the law tells us to consider are not necessarily the ones that justice says we may consider, the error of the formalist becomes obvious.

Lyons continues: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” (emphasis in original). The only argument he offers in favour of doing so is the hypothetical argument that following the law might be the only way of achieving the “uniform treatment of cases” required by justice – but, of course, this is clearly not the case. Acquitting the defendants who offer a bribe and convicting everyone else is treating like cases alike.

Treating like cases alike – where likeness is given by the criteria of the law – is dealing with them uniformly. But, as the bribery example demonstrates, dealing with cases uniformly is not justice unless the criteria used to define like cases are themselves just – and in the case of the law, we have no necessary reason to assume this. Is this a valid argument? It’s certainly persuasive, but I suspect it rests on a blurring of different senses of the word ‘just’ – and an undervaluation of the procedural nature of the justice being analysed. Suppose that, as the model of formal justice requires, we bracket out the justice of the laws and of the outcome of legal decisions; to make it simpler, suppose that we’re dealing exclusively with unjust laws and decisions with bad and unjust outcomes. Let’s say that having a surname beginning with Q has been declared a capital crime. Alternatively, suppose that we’re dealing exclusively with correct and welcome decisions on just laws: acquittals of falsely-accused murder suspects following an inquiry into police corruption, say. In the second case, we know that the law is just and that a just decision is, at least, highly likely; in the first, we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse. (Should this experience of stress and uncertainty be considered part of the ‘outcome’ of the case? Surely not – this would collapse a clear distinction (between outcome and procedure) for no real gain.) There seems no reason not to think in terms of procedural justice as a criterion for the application of the law – or, perhaps more precisely, for the process of the application of the law.

Lyons’s second argument addresses the related concept of rule-following, which – as we have seen – is generally required in order to make sense of the idea of treating like cases alike. (Lyons notes that judges can “devis[e] a uniform treatment of cases even when no relevant rules exist, for example, by comparing current cases among themselves”, but this puts too much weight on the need for rules to be stated formally and explicitly.) On rule-following and justice, Lyons is, again, sceptical:

The argument turns entirely on the notion of applying a rule to particular cases; it contains no further restrictions. If the result were a principle of justice, then any deviation from any rule that one is supposed to apply would be, in itself, an unjust act. Nothing restricts this mode of argument to the conduct of public officials, or even to the law.

Insofar as official nonconformity to law is regarded merely as the failure to follow rules, it is implausible to regard it as a kind of injustice. Is there anything else essential to official noncompliance that would provide the required link? It must be something essential to this kind of rule breaking, that is, something independent of all circumstances. Otherwise, a formal justice claim cannot be supported, for formal justice maintains that official disobedience is always morally objectionable, regardless of the circumstances.

Following a rule faithfully cannot be classed as justice, because rules are followed in all walks of life and may have nothing to do with justice. However, the question of equating rule-following with justice only arises in the context of duties or functions with effects on multiple other people – activities in the context of which it makes sense to talk about justice and injustice (Lyons’s counter-example of following the rules of grammar is question-begging). The “something essential” is the topic which was originally in question, that of following the rules given by the law. Once this is granted, this argument reduces to the previous one – that there is no procedural justice in the uniform application of unjust criteria – and is equally false.

Lastly, Lyons considers the argument for impartiality as a component of formal justice. He quotes Hart:

To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them “equally”.

Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied to different cases is the same general rule, without prejudice, interest, or caprice.

Contra Hart, however, Lyons maintains that the idea of impartiality has no necessary relationship with that of proceeding by rule. Uniformity does not entail impartiality: “[a]lthough impartiality may require some kind of uniform behavior, merely to deal with cases in a uniform manner is not to be impartial.” Indeed, uniformity understood ‘mechanically’ allows no scope for judges to show either partiality or impartiality. Only if the judge has a choice can the choice be made impartially; but

[i]f the formalist also believes that the choice of lawful alternatives is subject to criticism in the name of justice, then he must qualify his formal justice claim accordingly, because the simple requirement that officials act within the law does not enable the formalist to differentiate between the lawful alternatives.

Here Lyons appears to be making rather heavy weather of the ‘formalist’ claim that rules (with all their grey areas) should be applied, but applied impartially – both-and, not either-or. (Rather confusingly, Lyons uses ‘formalist’ as shorthand for ‘believer in the inherent virtue of formal justice’. He appears himself to be a formalist, in the more conventional sense of ‘analyst of a phenomenon in terms of its forms rather than any inherent qualities’.) When he pursues the topic of impartiality further, his argument becomes confused.

The claim that administrative justice requires impartial application of the law to particular cases is not inherently formalistic. One might agree, for example, that the just way of applying the law is the impartial way, while believing that justice may sometimes require that officials not apply the law. The formalistic version of the claim maintains that impartial application of the existing rules of law fully embodies administrative justice, with the understanding that this claim fundamentally requires officials to act within the limits laid down by law.

Certainly justice may sometimes require that officials not apply the law, but procedural justice – justice in the process of the application of the law – cannot. To say that “the just way of applying the law is the impartial way” is to make a claim about procedural justice, which is not at all affected by claims about the justice of the law itself or of particular outcomes. What Lyons means by the formulation “fully embodies administrative justice” is unclear, but it seems to suggest some claim about the justice of the process as a whole – not the justice with which it is administered.

Let us assume that officials should, to do justice, be impartial; this does not imply adherence to any particular set of rules, such as the rules of law. Again, suppose that the only just way of applying the law is the impartial way; it does not follow that an official who fails to follow the law acts unjustly. Let us agree that an application of the law which is not impartial is unjust; it does not follow that all deviations by officials from the law are unjust. For not every such departure could be described as an application of the law that fails to be impartial. An official might deliberately refuse to follow the law; this is not the same as applying it in, for example, a biased or prejudiced manner. This distinction is important, for the official may refuse to follow the law on principled grounds, precisely in order to prevent an injustice of which he would be the instrument.

The first claim here is irrelevant; the topic at issue here is precisely impartiality in following the rules of the law. The second is a non sequitur, which seems to broaden the argument unhelpfully to official deviancy in general. The remainder of the paragraph is valid, but what it expresses is simply the distinction between procedural injustice and injustice of outcome. It’s open to Lyons to argue that there is no procedural injustice in cases where justice of outcome is unaffected, but – as I argued above – this is only tenable if we effectively define ‘outcome’ to include all the effects on an individual of being involved in a court case, which is surely far too broad.

Next, Lyons on Fuller; then back to Hart.

Hart and natural law: the three concessions

In this & the following posts I’m going to look (sometimes quite obliquely) at Hart’s position on natural law – on the ways in which, and the extent to which, law can and should be taken to rest directly on morality, rather than constituting its own free-standing structure of posited norms.

Hart is strongly associated with legal positivism, and with what Jules Coleman has called the ‘no necessary connection’ argument in particular. Legal positivism tells us that the law is constituted, and can be identified, through rule-based social practices which confer meaning and significance on particular statements, acts and roles. The ‘no necessary connection’ argument tells us that the rule of recognition – the set of rules, assumptions and practices which qualify law as law in a given society – either may or may not include reference to moral standards. Contra Kelsen on one hand and natural law theorists on the other, Hart argued that morality and the law might (in some systems) be connected – there might be a settled and officially-recognised practice of deciding certain points by reference to moral arguments – but that the two had no inherent, general or necessary connection.

In this post I’m going to introduce three apparent concessions by Hart to natural law arguments, then introduce a late comment in which he suggests that one of these might be in need of revision. The next two posts will look at two papers by the philosopher David Lyons, one of which prompted Hart’s remark qualifying his position, and ask what implications Lyons’s arguments had for Hart. After summing up how I think Hart might have made use of Lyons’s arguments, I shall review some later responses to Hart’s qualification, from Matthew Kramer, Leslie Green and John Gardner.

The Giant Land Crab Postulate

Hart makes three concessions to natural law arguments, covering the content of law, the justice with which it is administered and the followability of law. We can refer to these as substantive natural law, procedural natural law and the morality of law, respectively. In his 1958 paper “Positivism and the separation of law and morals”, Hart introduces the concept of a necessary minimum level of law – and hence a minimal framework of substantive natural law – by reference to the fact that we are not giant land crabs.

suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances (the details of which can be left to science fiction) rules forbidding the free use of violence and rules constituting the minimum form of property – with its rights and duties sufficient to enable food to grow and be retained until eaten – would not have the necessary non-arbitrary status which they have for us, constituted as we are in a world like ours. At present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them there would be no point in having any other rules at all. Such rules overlap with basic moral principles vetoing murder, violence, and theft; and so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points, the statement that this is, in this sense, necessarily so.

The argument is developed further in The Concept of Law, in which Hart identifies three fundamental facts of social life from which we can derive a minimal system of mutual forbearances, and hence the “minimum content of natural law”:

  1. human vulnerability
  2. approximate equality
  3. limited resources
  4. limited altruism
  5. limited understanding and strength of will

It has to be said that Hart’s second and fifth qualities don’t entirely seem to belong. The last is introduced in the context of the need for sanctions to back up voluntary compliance with a code of forbearances, rather than the need for the code itself. The second seems more to be a background condition of any human society. Hart refers to the impossibility of imposing a generally-accepted framework of rules on individuals of vastly differing capacities; in the absence of general rough equality, in other words, the 20-foot noblemen (or the mutant superheroes) could lord it over all of us and no law of ours could bind them. This seems a counterfactual too far, and Hart seems to have brought it in mainly in reference to international law; he argues that the absence of this condition is precisely the key problem in that setting.

If we remove these, we are left with a core list of three facts of life:

  1. human vulnerability
  2. limited resources
  3. limited altruism

These three can all be seen as vulnerabilities – vulnerability to direct physical harm; to material deprivation (ultimately, to hunger and cold); and to social abandonment and neglect. The three vulnerabilities have the interesting quality that the removal of any one of them would address the other two. (Try it: for the third one, “imagine all the people sharing all the world”. Also, “imagine there’s no scarcity” and “imagine we’re all solar-powered land crabs”. Some would say that John Lennon missed a trick there.)

There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)

Substantive natural law, then, gives a minimum content to positive law. It has a considerable degree of overlap with the precepts of morality, but it derives – as does morality – from the facts of human existence. Substantive natural law is the minimum framework of mutual forbearances required to regulate society in response to the irreducible fact of human vulnerability (physical, material and social).

It’s the Law

Procedural natural law is introduced by Hart in his 1958 paper as follows:

If we attach to a legal system the minimum meaning that it must consist of general rules … 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 of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles. Natural procedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this aspect of law and which are designed to ensure that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in this sense.

In The Concept of Law, Hart develops this argument; he also includes a second argument in response to Fuller. (Fuller’s Anatomy of Law had not yet appeared at this stage, but Fuller had replied to Hart’s 1958 paper in the same year, arguing for an ‘inner morality of law’.)

We may say that [the idea of justice] consists of two parts: a uniform or constant feature, summarised in the precept “Treat like cases alike” and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. … In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them equally. Consistently with this, the procedural standards such as ‘audi alteram partem‘ ‘let no one be the judge in his own case’ are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself. The connection between this aspect of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice. (pp. 160-1)

Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact involved in any method of social control … which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed one critic of positivism has seen in these aspects of control by rules, something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity. (pp. 206-7)

For Hart in 1958, “natural procedural justice” consists in applying general rules objectively and impartially so as to treat like cases alike; this is “justice in the administration of the law”, which can be distinguished from “justice of the law”. For Hart in 1961, “to apply a law justly” is to apply the same rule to different cases without prejudice; however, he does not refer to this (in his own voice) as a principle of natural justice. He is also reluctant to extend the label of ‘natural’, or the term ‘morality’, to the ‘requirements of justice’ identified by Fuller as an ‘inner morality of law’; Hart prefers to characterise these as ‘features of control by rule’, requirements which are (‘in fact’) characteristic of any form of rule-based social control. However – in a seemingly nugatory concession which has the effect of making Hart’s position much stronger – Hart grants that Fuller’s ‘inner morality of law’ may be accepted as such, with the dismissive proviso that it appears to have no effect (moral or otherwise) on the outcomes produced by a legal system.

Friendly Fire

By 1961, then, Hart’s attachment to any idea of procedural natural justice was already qualified and reluctant. What, then, to make of the closing paragraph of the “Introduction” to 1983’s Essays in Jurisprudence and Philosophy?

I hope that in what is a second exchange of friendly polemics between myself and Fuller … I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon’s [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in [“Positivism and the separation of law and morals”] and repeated in my Concept of Law that a minimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification.

What indeed? We’ll find out next time, by way of a reading of David Lyons’s 1973 paper “On formal justice”.

Mutterings in favour of Kelsen

Hart’s Essays in Jurisprudence and Philosophy includes two pieces engaging, in tones of patient and courteous bafflement, with the ‘pure theory of law’ propounded by Hans Kelsen. Hart focuses on four main assertions:

  1. Law is a system… All valid laws, qua valid laws, form a single system. Kelsen was willing to extend this argument to cover international law, with the implication that there is only one system of law in the world.
  2. …which is logically coherent, Every legal system must be logically self-consistent throughout, such that no two valid laws can contradict each other.
  3. rests on a basic norm… While a legal system must be observed (treated as binding on conduct) in order to have any validity, every legal system is also founded on a presupposed ‘basic norm’ on which all legal powers granted within that system, and all laws laid down by those powers, ultimately rest.
  4. and has no moral content. Legal obligation and moral obligation are distinct and separate concepts, deriving from separate logical systems: if moral obligations were allowed to impinge on the law, it would be possible for obligations to conflict, which would destroy the logical coherence of the law as a system. The statement that a valid law is immoral is thus of no more legal significance than the observation that it was enacted on a Tuesday.

For completeness, I should add that Kelsen subsequently revised the second and third points here, allowing the possibility of valid contradictory laws and redefining the ‘basic norm’, not as a norm which was presupposed rather than having been enacted, but as a fictitious norm enacted by a fictitious lawmaker. The second of these is more promising than it sounds; I haven’t been able to find any commentary on the first.

Hart’s arguments against Kelsen are both meticulous and dense, but they take two main forms: demonstrations that one of Kelsen’s assertions cannot be logically sustained, or has unsatisfactory implications if assumed to be true; and demonstrations that, even if true, the assertion would not do the work Kelsen claims that it does. I’m certainly not in a position to say anything authoritative about Kelsen, let alone rebut any of Hart’s criticisms. In this post I want to take on an easier target: Hart’s bafflement. Repeatedly in Hart’s two papers we seem to hear him muttering Why would you think that? Or perhaps, Yes, that’s very neat, but why would you think it’s true? (Something similar can be heard, rather less sotto voce, in Neil Duxbury’s 2007 paper on the later ‘fictitious’ basic norm.) In Hart’s hands, Kelsen’s pure theory comes across as the proverbial beautiful hypothesis brought down by an ugly fact – or rather, a dense and elaborate hypothetical architecture undermined by a closely-marshalled assault by ugly facts. Kelsen’s model seems to do some of the work done by Hart’s own theory of law, but only some of it and not as adequately.

For me, this prompts the question: why would you think that? If we took Kelsen’s pure theory as a starting point, what would it give us – would it take us anywhere that Hart’s legal positivism doesn’t? Here are some thoughts about three of the four counter-intuitive propositions above (I’m not touching the second, on grounds of not being familiar with Kelsen’s later revisions to it).

Law as a single system: well, plainly, all valid laws don’t compose a single system. Kelsen (on Hart’s account) advances very few arguments in support of this proposition, and Hart finds it easy to dismantle those which are offered. But the complex of ideas which Kelsen reduces to this assertion – the mutual recognition (or constitution) of international and domestic law; the tendency (and on occasion the need) for one jurisdiction’s laws to be honoured by another – may be worth more attention than Hart gives them. We could argue, for example, that law tends to universality, and that this tendency (as well as practical necessity) underlies the tendency for discrete legal systems to find points of contact and forms of understanding; international law, in this framework, would be a separate enterprise undertaken to provide a single universal solution to this problem, like a connectivity standard – SOAP to municipal law’s XML. (And there goes my very last reader!) We could then go further, treat the tendency to universality as a norm (part of a ‘morality of aspiration’ in Fuller’s terms) and suggest that, to the extent that a legal system refuses arrangements of mutual recognition with other systems, to that extent there’s something unlawlike about that system. This certainly isn’t a move Hart would make – for Hart there wasn’t much more to say in formal terms about the legal system in Nazi Germany than that it was one – but that doesn’t mean it’s necessarily a bad idea. In other words, perhaps what Kelsen had in his sights here is, precisely, an aspect of the morality of law.

The basic norm: digressing slightly, I found Duxbury’s paper both enlightening and frustrating. It’s frustrating because it appears to solve its central mystery halfway through and then carry on as if it was still unsolved. (Unless I’m missing something obvious – also a frustrating thought!) To fill in the background, Kelsen saw the law as composed of ‘norms’ – conceived mainly as statements that behaviour X would attract sanction Y – which had been enacted by acts of will; the acts in question had been validated by prior norms, setting down how and by whom law could be made. However, these norms themselves had (by definition) been enacted by acts of will, creating an infinite regress (or founding the law on the brute facts of history, although this doesn’t seem to be an alternative Kelsen entertained). Hence a basic norm, never actually enacted, had to be presupposed as the foundation for the entire system. Late in life Kelsen changed tack: rather than presupposing a basic norm which (although not enacted) was both real and valid, he proposed that we treat the basic norm as a fictitious norm, enacted like all other norms, but enacted by a fictitious act of will.

Duxbury’s paper looks for support for the proposition that this isn’t as daft as it sounds, and largely fails – or rather (in my view) succeeds halfway through, almost without noticing. The key is in Kelsen’s definition of ‘fictitious’: he follows a philosopher called Vaihinger (not otherwise familiar to me) who distinguished between the partially fictitious (things which could exist but just happened not to) and the wholly fictitious (things which couldn’t exist). The basic norm, in Kelsen’s late formulation, is wholly fictitious: in other words, it’s a contradiction in terms, the paradox of a valid norm resting on an act of will which itself has no validation. Viewed in this light, the late formulation is, perhaps, a more satisfactory restatement of the earlier one. By putting our trust in the basic norm, we are not arbitrarily presupposing a norm which happens to have arisen without a prior valid act of will – which, in Kelsen’s terms, is a bit like arbitrarily presupposing a triangle which happens to have four sides. Rather, we are deliberately relying on a norm which we have defined as paradoxical and impossible: our triangle has four sides and we know it.

What does this get us? I think it gets at an aspect of the moral significance of law – another theme on which Hart wasn’t particularly keen. In terms of actually, practically grounding the validity of law, Hart cut Kelsen’s knot and warded off the infinite regress by proposing that every law-governed society has its own ‘rule of recognition’ – a rule, or practice, or assumption, or set of rules and practices and assumptions, which determines how law is made and who by. The reference is sideways rather than upwards, in other words (“Who can revise law A?” “Refer to rulebook X.” “Who can revise rulebook X?” “Refer to rulebook X.”). But, whatever the rule of recognition might in practice be, I think the idea of the basic norm – and in particular the fictitious basic norm – captures something important about why the law matters, or is believed to matter. Ultimately, perhaps, the question the basic norm answers isn’t “where did this law come from?” but “why should I obey this law?”. And here there still is a reference upwards, unless it’s cut off by a learned shrug (“why should you obey this law? because you’re a citizen of a law-governed country, this law is a validly enacted law according to that country’s rule of recognition, and as such obeying validly enacted laws is what you should do”). “Why should I obey this law?” “Because you should obey the Law[= those laws currently in force in your society].” “Why should I obey the Law?” “Because it’s right to obey The Law[=the laws laid down in pursuance of the project of subjecting social behaviour to just, consistent and uniform regulation]”. “Why is it right to obey The Law?” “Because the basic norm demonstrates how important the enterprise of The Law is – it’s important enough to be founded on a paradox; important enough for its foundations to be treated as real even though we know they’re not.”

No moral content: here Kelsen might seem to be cutting with the grain of Hart’s positivism, as well as against the grain of any kind of natural law theory. Things aren’t that simple, though; although Hart certainly maintained that the rule of recognition (and hence the law) could have no moral content, he was at pains to deny that it must have none. The rule of recognition itself could encompass moral precepts, in other words. Although we can see why Hart might have made this move – presumptively de-moralising the rule of recognition would have created hostages to fortune in his disputes with natural law theorists – I tend to think it creates unnecessary confusion. Although lawyers and legislators can and do invoke moral assumptions in their decisions (this being the avenue Hart would have wanted to close off) they do not do so in any predictable or systematic way, which is surely what would be required for moral arguments to form part of a rule of recognition. I would argue that the ‘rule of recognition’ model sits more comfortably with Kelsen’s austere division between moral and legal domains: whatever morality might dictate, the law is what is made law through the practices of legislators, lawyers and juries, and nothing else.

Despite appearances, treating law entirely as positive law is not the end of the line for the moral critique of law, or even for natural law. If law is autonomous of morality, this does not make the project of subjecting law to morality any less valid or important – if anything, the reverse is true. Moreover, if there is a ‘natural’ core to positive law, as Hart conceded; or if the conditions of possibility for a community living under the law can be considered as a ‘morality of law’, as Fuller argued; or if (as Jules Coleman has argued) morality itself requires that the law be applied consistently and interpreted without reference to moral norms; then the dichotomy between morality and positive law cannot be treated as absolute. And – paradoxically perhaps – if we want to think about how the dichotomy should be modified and reinterpreted, we’re better off starting with a theory which emphasised it (Kelsen’s) than with one which blurred and downplayed it (Hart’s).

In short, the reason why Kelsen’s theory looks logically airtight, unsustainable in the real world and ultimately slightly crazy may actually be that it is all of those things – but it’s still useful to think with, and in some ways more useful than Hart’s all-purpose scepticism.

Next up: Hart on Fuller. That should be quick and easy…

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