The papers from the NYU conference are now available on the web. (Thanks to Brian Leiter for the reminder & link.) Here are titles, links, and tastes:
LES GREEN (University of Oxford), “Positivism and the Inseparability of Law and Morals”
Lon Fuller . . . thought Hart was recommending that “law must be strictly severed from morality”6 for, if he wasn’t, then why did Hart say it is morally better to retain a “broad” concept of law, one that applies even to wicked legal systems? And anyway, if positivists weren’t recommending separation, then what advice were they offering politicians who have to design constitutions or judges who have to decide cases? The answer, of course, is that they weren’t offering advice. They were trying to understand the nature of law. Fuller’s inability to grasp the project flowed from his apparent conviction that such attempts amount to nothing better than “a series of definitional fiats.”7 He was certainly not the last to have doubts about the prospects for a philosophical understanding of law, nor the first to think it more important to change the world than to interpret it. The only surprising thing was that Fuller also supposed that world-changing could be assisted by philosophy-changing. He thought jurists could improve society by treating philosophies of law, not as efforts to understand social reality, but as “direction posts for the application of human energies.”8
JULES COLEMAN (Yale Law School) "The Moral Force of Legal Directives"
Coleman requests that his paper not be quoted, but despite his overly modest disclaimers, this paper is well worth a read for its concise and illuminating narration of the history of the intellectual history of analytic jurisprudence and especially his discussion of the importance of the turn to "content."
LIAM MURPHY (NYU Law School) "Better to See Law This Way"
Fifty years on, it seems to me that the dispute over the a nature of law remains a clash of two fundamentally different pictures of law. On the one hand we have the picture of law as fact. The law is simply what is posited, or put forward by a person or people. We may all hope that what gets posited is good, that it matches closely with what the law ought, morally speaking, to be. But, insists the positivist, it would be simply mad to look at what has been put forward as law by people and see there, instead, what ought to have been put forward. Suppose someone were to argue that slavery is illegal in a particular place in part because it is a violation of people’s moral rights. The positivist sees such an argument as like defending the claim that sexual promiscuity causes disease by saying that promiscuity deserves to be punished with sickness.
The second picture is well captured by Fuller’s notion of fidelity to law: Law is in its nature something good, or at least striving towards being something good, and deserving our obedience, all else equal. For most people of in the grip of the fidelity picture, positivism is hopelessly and obviously wrong. To see law as ultimately grounded in social fact is to be blind, perhaps willfully so, to these essential normative aspects of law. From this point of view it may turn out that the Nazis and the Taliban have no law, but who cares about that? If there is something interesting going on in this whole domain, something worth reflecting on, especially something worth reflecting on philosophically, it must be because there is something valuable or at least potentially valuable about law, or at any rate something immediately morally relevant about law, and part of the philosophical task is to figure out what that is.
FRED SCHAUER (Harvard University) “The Last Word on Vehicles in the Park”
Fuller of course was compelled to take Hart’s example as Hart presented it. But in terms of what we can understand as Fuller’s larger point, an example using the word “vehicle” might turn out to be distracting.13 In order to see why this is so, we have to move the debate to a higher level of generality. That is, we have to see that the question was not only the familiar one about the potential conflict between the text of a rule and its purpose – between the letter and the spirit of the law – but about legal formality in all of its (defensible) guises.14 The question the debate about vehicles in the park raises is the question of the ever-present potential for conflict between the letter of the law (about which much more will be said in the following section) and what would otherwise be the best, fairest, wisest, or most just resolution of some legal dispute or the best answer to some legal question. If the straightforward reading of the law produces an absurd or even merely suboptimal outcome, are legal actors required or even permitted to reach the right outcome instead of the outcome seemingly mandated by the plain meaning of the words on the page?
BEN ZIPURSKY (Fordham Law School) "Mischief under the Penumbra"
Positivism and the Separation of Law and Morals1 contains an important social criticism that continues to go unheeded. Hart protested that judges and jurists too frequently try to pass off their own imposition of individual political and moral views as legal interpretation; there is too much of what I shall call “mischief under the penumbra.” We ought to have clarity and candor in legal interpretation, not moralizing or pursuit of individual political goals masquerading as law. Hart’s American contemporaries supposedly rejected positivism because they regarded it as being a kind of formalism, and they regarded formalism as simpleminded and disingenuous. But the nearly automatic rejection of positivism was a really a prelude to all kinds of interpretive shenanigans that in effect obscured or misrepresented the law. This lack of clarity and candor was regrettable, Hart argued, both intrinsically, and because it hindered effective evaluation of the law, thereby obscuring questions as to whether the law should be respected or reviled, renewed, revised, or rejected.
DAVID DYZENHAUS (University of Toronto Law) “The Grudge Informer Revisited”
For Hart, the only way to avoid talking “stark nonsense”16 is to adopt the view of his positivist predecessors, Jeremy Bentham and John Austin, and see that the question of the validity of particular laws does not depend on their moral content. Rather, if “laws reached a certain degree of iniquity then there [is] … a plain moral obligation to resist them and to withhold obedience”. He quotes with approval Austin’s example of the man who is convicted of a crime punishable by death when the act he did was in fact trivial or even beneficial. The man objects to the sentence that it is “contrary to the law of God”, but the “inconclusiveness” of his reasoning, Austin says, is demonstrated by the “court of justice” by “hanging [him] up, in pursuance of the law of which [he had] impugned the validity”.17
NICOLA LACEY (London School of Economics) “Philosophy, Political Morality and History: Explaining the Enduring Resonance of the Hart-Fuller Debate”
In what follows, I will set out what I take to be the main points of contention between Hart and Fuller, before moving on to consider the factors which I believe to explain the lasting resonance of the debate. First, I will suggest that the question of the precise nature of what I shall call the ‘complementarity’ between analytic, historical and moral enterprises in legal theory is more complex, and of greater intellectual interest, than Hart was willing to concede; and that the way in which his contribution to the debate with Fuller illuminates this complementarity is one of the key factors underpinning the continuing fascination of the debate. Second, I will suggest that the debate illuminates the sense in which conceptual analysis needs to be contextualized, and should prompt a modification of Hart’s own claims about the universality of analytical jurisprudence. I will further argue that the power of the debate to speak to us today is a product of the way in which it connects with pressing political issues, notwithstanding the fact that its analysis may be, as a matter of logic, contingently rather than necessarily so connected. One particular focus of my interpretation is the way in which Hart’s argument points us – paradoxically - towards a compelling case for the modest, positivist view of law within a world in which ‘law’s empire’ – its significance as a tool of not merely national but international regulation - has increased exponentially since the Nuremberg Trials which provide such an eloquent implicit context to the debate. The moral and practical upshot of different conceptions of law, and in particular of ‘the rule of law’, is accordingly now a matter of even greater significance given the role of the ideal of the rule of law in international regulation. As international criminal law develops apace – yet its genuinely universal reach and regulatory potential remain under question – Hart’s modest realism pitched against Fuller’s more ambitious optimism speaks to us in compelling ways.
JEREMY WALDRON (NYU Law School) “Positivism and Legality: Hart’s Shifty Response to Fuller”
I implied at the outset that Hart’s discussion of legality is equivocal. Often it seems to be motivated by a desire to say nothing more than is necessary to see off Lon Fuller’s critique, and if what is necessary to refute Fuller in one discussion is inconsistent with what is necessary to refute Fuller in a discussion of something else, Hart seems to rest his hopes of prevailing in the jurisprudential struggle on the fact that many of his readers will be more interested in Fuller’s discomfiture than in the inconsistency of the refutation. It is, I think a shabby episode in the history of modern positivist legal philosophy—the more so since it is done from a reputational platform in which Hart is supposed to hold the high ground (and is generously acknowledged by his opponent to hold the high ground) so far as standards of analytic clarity are concerned.56 Hart’s treatment of Fuller gives standards of analytic clarity in legal philosophy a bad name.
The basic contradiction in Hart’s account of the principles of legality consists in the answers he gives to the two questions that I said at the outset were suggested by Fuller’s reflections on the case of Nazi Germany. I said it was worth asking, (1) what exactly the relation was between the principles of legality and categories like law and legal system which we use to characterize systems of rule. Actually I want to pin question (1) down a little more precisely than this. It may be common ground among many participants in this debate that of course there is some logical connection between principles of legality and the concept of law: laws are what principles of legality are designed to evaluate; or principles of legality are (as John Finnis argues) principles for keeping legal systems in good shape, according to their specific virtues; or principles of legality may be designed (as Joseph Raz seems to think) to remedy or mitigate evils that only law makes possible.57 In another context I might want to contest that last point, but it is not the issue here.58 The particular connection between law and legality that interests me in this paper is the possibility that Fuller raised in a passage quoted earlier, to the effect that a system of rule might depart so far from the principles of legality as to undermine its claim to be called a system of law or a legal system.59 Fuller is raising the possibility that the principles of legality might be related criterially to the concepts law and legal system: they may be among the criteria for the proper application of these concepts. So the version of question (1) that I want to consider is this: is there any sort of criterial connection between the principles of legality and the application of the concepts law and legal system?