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Hart-Fuller debate?
(Assignment submitted towards the partial fulfilment of the assessment in the subject of
Jurisprudence)
Submitted To:
Submitted By:-
SUMMER SESSION
JULY-NOVEMBER, 2015
TABLE OF CONTENT
INTRODUCTION......................................................................................................................1
HART-FULLER DEBATE.........................................................................................................2
The Debate.............................................................................................................................3
KRAMER-SIMMONDS DEBATE...........................................................................................5
Debate 1.................................................................................................................................6
Simmonds view..................................................................................................................6
Kramers Response............................................................................................................7
Conclusion..........................................................................................................................7
Debate 2.................................................................................................................................8
Simmonds Riposte............................................................................................................8
Conclusion..........................................................................................................................9
CONCLUSION........................................................................................................................10
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INTRODUCTION
The debate over whether law has an attachment to morality is not a new one but has existed
since the very first thought on jurisprudence emerged. Morality can be roughly described as a
set of values common to society, which are normative, specifying the correct course of action
in a situation, and the limits of what society considers acceptable. 1 Law can be seen as the
state echoing, and seeking to uphold, these values. 2 These descriptions can be seen to be,
however, not entirely correct, and the issue of law and morality is undeniably complex.
At first there seemed no difference between law and morality as the ancient societies like the
Greeks considered a person who follows law to be morally good. Slowly, people realised the
difference between what is legal and what is legally right. From here various thinkers started
debating over law and morality and soon various thoughts on this aspect emerged.
It appears that the schools of thought- the positivists and the naturalists, have been on two
sides of this debate. Positivists choose to defend the idea that law has no moral connection
whatsoever, while the naturalist believe the contrary. The result of this is various debates
between thinkers on this proposition. In this paper, I will be briefly touching upon the Hart-
not highlight or choose a side in this debate but view it from a neutral angle because my
actual pursuit is to find whether the debate on Moral Status of Rule of Law can prove the case
either for the positivists or for the naturalists. Lastly, I would conclude by holding the
outcome of this debate whether fruitful or not, if fruitful then for which side.
1 Marmor, Andrei and Sarch, Alexander, "The Nature of Law", The Stanford Encyclopedia of Philosophy (Fall
2015 Edition), Edward N. Zalta (ed.)
2 Ibid
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HART-FULLER DEBATE
In his book, Concept of law, Hart criticised Austins theory that law is the command of the
sovereign enforced by the threat of punishment while giving a distinction between internal
Hart says, legal system is not full of commands but rules. These rules come from the society
itself by a chain reaction of exerting pressure. Out of this pressure, emerges a rule. Thus, a
rule emerges from members of the society. Enforcement of customs is done by critical
comments, that is, by judging each other. Hart called this critical reflective behaviour. Now
these rules which have emerged from the society are called primary rules as they are primary
When society advances, it makes a new set of rules known as secondary rules. Primary rules
are duty conferring while these secondary rules are power conferring. Primary rules become
secondary rules when they pass the filter of namely three rules, those are:
a) Rules of identification
Thus for Hart, the key to understanding laws nature is its modes of operation.
In his book, The Morality of Law, Fuller says that just like we do not understand what a saw
is except by reference to its purpose, similarly laws purpose is central to understanding its
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nature. For him, law is an institution on a mission. 3 This mission is to subject human conduct
to governance of rules.4 According to him, the criteria by which we determine whether law
exists are only intelligible if one presupposes that law, by its nature, has the purpose of
principles of legality. The eight desiderata are that there must be: 5 (1) rules (2) which are
published (3) prospective and not retrospective (4) with which it is possible to comply (5)
intelligible (6) non-contradictory (7) reasonably stable across time and (8) officials must act
For him, if there is too much departure from these criteria then it cannot be said that a legal
system is in existence. Thus, once we realise laws purpose then we will realise that law is in
The Debate
The main issue of their debate is moral nature of law: Fuller proposes that the authority of
law (partially) derived from its consistency with morality while Hart suggests the other way
that law doesn't need to be consistent with morality to establish its authority. On 1958, this
debate was published in Harvard Law Review and the divide the positivist and naturalist law
Hart insisted that this rule has a core meaning only which is conveyed by its terms. The
exception to this rule exists only at penumbra like that of a bicycle or roller-skates.
Fuller asks a question that whether the rule excluding vehicles from the park would apply to a
group of local patriots who want to mount a pedestal in the park a truck used in World War II,
3
as a memorial. He asks that would this truck in perfect working condition count as a
penumbra. Thus, he is trying to make two points, firstly, understanding a rule is a matter of
understanding its purpose and secondly, this purpose of a rule can only be understood in the
In his review of Fullers Morality of Law, Hart was dismissive of Fullers claim that Fullers
desiderata amounted to an inner morality of law but he argued that they were merely
principles of efficacy. Simmonds argued that the choice to govern ones subject through law
rather than some other means serves the distinct moral value of preserving for those subjects
This sparked the debate between supporters of Hart and that of Fuller resulting in a further
6 Nigel E Simmonds, Straightforwardly False: The Collapse of Kramers Positivism, (2004) 63 Cambridge Law
Journal 98 -131
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KRAMER-SIMMONDS DEBATE
The debate between the two is a continuation of the Hart-Fuller debate as it is over whether
there is any connection between morality and observance of Fullers eight precepts or
(1) Is there any moral point or value in following in Fullers eight precepts?
(2) Will a wicked ruler seek to follow Fullers eight precepts in long term?
If the answer to the first debate is yes, then the ruler wont just think of the desiderata as a
wise piece of advice but he will find himself morally bound to do so.
If the answer to the second debate is no, then it would go on to show that in long term
Fullers precepts are followed by only morally good rulers and thus, show a connection
1. Someone who chooses the first possibility will say that there is no connection
between morality and Fullers precepts. Firstly, the precepts are merely ones of
efficacy and useful for governing people effectively via law. Secondly, because of this
advantage even an evil ruler will govern his people according to these precepts in long
term.
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2. The one who chooses second possibility just like first one will say that there is no
sceptical about it as these precepts might come in the way of the evil ruler to pursue
his selfish agenda. Therefore, there is a small connection between rule of law and
morality sometimes.
3. The third thinker will be of the view that moral point in giving effect to Fullers
precepts of legality but also agrees that even a wicked ruler will have sufficient
prudential reasons to adhere to Fullers eight precepts. Thus, he thinks that there is a
Debate 1
Simmonds view
Simmonds is of the view that the moral value of adhering to Fullers precepts lies in the way
that adhering to those precepts guarantees to the subjects of law a degree of independence
that they could not enjoy under any form of government. 7 He says that someone who lives
under the rule of law has a freedom even though that freedom exists within rule of law. He
enjoys a freedom which a slave under a master can never have and therefore someone who
lives under the rule of law has no master. It follows that any failures to give effect to Fullers
precepts are a matter of moral regret though they might be justifiable when othe moral
Kramers Response
His first objection to Simmonds view that adherence to Fullers precepts of legality ensures
that people who live under the rule of law enjoy independence from the will of the others is
7 Ibid
8Simmonds, Kramers High Noon, (2011) 56 American Journal of Jurisprudence 135
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that the rule of law can serve to establish the institution of chattel slavery. 9 He says that far
from guaranteeing people freedom from the will of others, law can be used to take this
freedom away as the government could use its legal powers to enslave them.
Simmonds responds to this objection by saying that law established slavery is a special case
because someone who is made a slave effectively exists outside the law and its protection.10
Conclusion
Now the important point is that this argument continues for long and it will be difficult for me
to encompass all the replies of Kramer and Simmond to each others objections. Therefore, I
will cut down this debate short and come to a more recent objection raised in this aspect.
Kramer objects that adhering to Fullers precepts is both good and evil. 11 The good part of
adhering to these precepts is evident but the evil part goes unnoticed by most men. Adherence
to Fullers precepts is evil because there are some evils which cannot exist without these
precepts. Given this paradox, one should drop moral transmissibility thesis and with that the
Although Fullers supporters can still counter this objection by saying that Kramer is
confusing two different forms of social ordering here: managerial direction and law. 12 Thus, it
can be easily seen that this debate will stretch as long as there exists at least one supporter on
each side.
9 Kramer, Freedom and the Rule of Law, (2009-10) 61 Alabama Law Review 827
10 Simmonds, Law as a Moral Idea, (Oxford University Press, 2008)
11 Kramer, Once more into the fray: challenges for legal positivism, (2008) University of Toronto Law Journal
1
12 Fuller, A Reply to Critics, 207
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Debate 2
Lon Fuller was always sceptical that whether a wicked ruler will abide by his eight precepts
in long term because eventually these precepts would get in his way. 13 Simmonds extended
this debate over connection between morality and legality and chose to favour Fuller.
Simmonds initially argued that a wicked government will inevitably will end up using extra-
legal force against opponents of the government who have managed to comply with all the
directives of the government. To this Kramer argued by saying that a wicked government
wont resort to using extra-legal force because if people know that compliance would still
result in punishments then they will see less reason to comply with the law. So in order to
maintain law as an effective agent for getting the people to do what the evil government
wants them to do, the wicked government will abstain from using extra-legal beatings.14
Simmonds Riposte
He argued that Kramers position was straightforwardly false. 15 In a society where even those
who obey law might still face having force used against them by their government, your
chances that force will be used against you will still be less if you obey the law than you
Kramer responded by arguing that people will be more likely to break the law the less they
think they have to lose by breaking the law. 16 Kramer conceded that it might at first seem
irrational for someone living under the regime where punishments are pronounced (second
regime) even when complying with the law to be more willing to break the law than someone
13 LL Fuller, Positivism and Fidelity to Law A Response to Professor Hart, (1958) 71 Harward Law Review
630-672.
14 Matthew Kramer, On The Moral Status of the Rule of Law, (2004) 63 Cambridge Law Journal 65-97.
15 Supra Note 6
16 Kramer, Incentives, interest and inclinations: legal positivism defended, (2006) 51 American Journal of
Jurisprudence 165
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living under the regime which adheres to Fullers precedents faithfully (first regime). This is
because whatever your regime may be, breaking the law will obviously increase the chances
of punishment. However, he argued that what we can call the less to lose effect is an
observable feature of human nature, and means that people living under the second regime
will be more willing to break the law than the people living under the first regime.
Conclusion
Although, one may conclude that Kramer clearly wins this debate by his last counter to
Simmonds but a keen observer will see that eventually there is no end to this debate also.
There is a possibility that less to lose effect can be made to dwindle into insignificance, and
incentives to obey the law maintained, under a truly wicked regime that is willing to engage
in extra-legal violence against its opponents. This can be done by making the punishments so
harsh that you will still have a lot to lose by breaking the law. Also it can be seen from the
history that no evil regime has ever abided by all of Fullers eight precepts.
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CONCLUSION
The debate over morality and legality having any connection or not has existed from times
remains unanswered. I believe that there will always be people arguing on both sides of the
law and morality question. We may call those favouring the proposition that Law has a bond
with Morality the Naturalist and those opposing it the Positivists because over the years in
jurisprudence it is one of the questions which has been debated between the two groups.
Clearly, there hasnt been any fruitful answer to this debate and even if it existed then the two
groups would still find some defence to their stand. Thus, it is one of those questions which
Kramer-Simmonds debate also ended in such confusion as it tried to stretch the Hart-Fuller
debate. There is a dead end and simultaneously there is an answer to this debate. It is like the
Schrodingers cat paradox. Both groups will believe that there exists some right answer to
this debate and therefore propound new ides to defend their thoughts. Thus, there is an
answer as well as no answer to this question on the Moral Status of Rule of Law.
Human mind is such a wonderful inventor that it finds an answer for anything and everything.
Thus, it is best to leave such debates open and not force ones opinion in the pursuit of a right
answer.
I would like to conclude by saying that it is not important whether one Positivists won or the
Naturalists but what is important is to see whether debate led to any relevant research in the
field of Jurisprudence or not. Indeed, the debate turned out to fruitful for both camps. Kramer
and Simmonds belong to the third generation of Jurisprudential thinkers and the thinkers in
this generation have found it difficult to break free of their predecessors and form some new
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thought. I believe the lesson which should be taken from this debate is to forget for a while
who won and who lost but instead try to find new questions in the field of Jurispudence.
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