Philosophy, Political Morality and History: Explaining the Enduring Resonance of the Hart-Fuller Debate 3

Furthermore, Fuller claimed, Hart’s own position could not consistently deny some such connection between law and morality.  For in his argument about the open texture of language, Hart claimed that judges deal with ‘penumbral’ cases by reference to a ‘core’ of settled meaning.  This, Fuller argued, suggested that legal interpretation in clear cases amounted to little more than a cataloguing procedure.  Yet even in a very simple case such as a rule providing that ‘no vehicles shall be allowed in the park’, the idea that judges can appeal to a ‘core’ meaning of the single word, ‘vehicle’, was problematic.  In deciding whether a tricycle or an army tank put in the park as a war memorial breached the rule, the core meaning of ‘vehicle’ in ordinary language would be next to useless in judicial interpretation: rather, judges would look to the purpose of the statute as a whole.  And these questions of purpose and structure would inevitably introduce contextual and evaluative criteria in the identification of the ‘core’.  For Fuller, the interpretive force of these purposive criteria was closely bound up with the ideal of fidelity to law.  Hart’s and Fuller’s engagement therefore raised issues which went to the core of their overall legal philosophies.  Furthermore, this joinder of issue anticipated what was to become the central preoccupation of the analytical jurisprudence of the next half century – the precise sense not only in which moral criteria are implicated in the identification of valid laws, but also in which legal reasoning is a species of moral reasoning.  This preoccupation in turn has been fed by another, fascinating yet somewhat inchoate, debate: the confrontation between Hart and another powerful interlocutor whose approach was arguably shaped to significant extent by Lon Fuller: Ronald Dworkin. 

Historicising the rule of law

Is the striking contrast between natural law and positivist positions which forms the centerpiece of the Hart-Fuller debate best understood as a philosophical disagreement?  Or is it rather – or equally – a moral and practical disagreement about what institutional arrangements are likely to maximize the realization of valued social ends or ideals under specific social and historical conditions?    Does the debate between Hart and Fuller centre on a timeless conceptual distinction?   Or is its lasting significance as much to do with the vivid context in which it framed perhaps one of the most pressing moral and political questions confronting post-Enlightenment constitutional democracies:  how to develop laws capable of constraining abuse of power, and of addressing such abuses?   These may seem false dichotomies: philosophical debates – particularly those in legal, moral or political philosophy – do, after all, confront pressing practical issues, and not merely conceptual disagreements.  But the distinction directs us to an important component of the debate, and one which is sometimes obscured within philosophical analysis: the importance of the context in which the debate is framed in illuminating not merely the concept of the rule of law but also its point, purpose, function or social role.  To put this in the terms of the linguistic philosophy by which Hart was influenced, contextualizing the debate helps us to look to the ‘use’ rather than the ‘meaning’ of the concepts in which we are interested, and to ask questions about the preconditions under which particular conceptions of, or dispositions towards, the rule of law are likely to take hold.  For it seems likely that the question of whether a positivist or a naturalist attitude to law would best equip a society to resist tyranny is itself historically contingent to some degree.  In an intensely hierarchical and unequal society, for example, Hart’s liberal vision would simply be unfeasible, and an inculcation of Fuller’s natural law vision a possibly more practical way of encouraging resistance to abuse of power.  In this respect, it is instructive that, in early modern societies, political and legal dissent was so frequently framed in terms of religion or other matters of conscience.    

To take this argument further, let us consider how an historical analysis focused on ‘use’ rather than ‘meaning’ of the rule of law might modify our view of its contours and significance.  At its most basic level, we find the concept of the rule of law reaching back into classical philosophy, with the Ancient Greek idea of ‘the rule of law and not of men’.  A thin concept of the rule of law as signifying regular constraints on political power and authority might plausibly, then, be seen as ‘the central case’ of the concept.  But if we look at thicker, richer conceptions of the concept – the different ways in which, and purposes for which, it has been invoked – historical circumstance quickly enters the picture.  Let us take a few examples.  In a politically centralized and authoritarian system such as the monarchy of early modern England, it is not clear that the operative concept of the rule of law can intelligibly be read as implying the universal application of law, reaching even to the sovereign.  This idea – central to modern notions of the rule of law - was the object of long political contestation, and took centuries to be accomplished: even at a conceptual level, we see Bentham still working to articulate a coherent notion of limited sovereignty, with Hart finalizing the job in a characteristically elegant way in The Concept of Law. We can, surely, acknowledge that the Eighteenth Century conception of the rule of law in England was different to that in the Twelfth Century without concluding that, in the latter, no such conception existed: indeed, it existed in part as a critical conception which informed some of the political conflicts which shaped modern constitutional structures.   The conception of law’s universality is itself tied up, in other words, with the emergence of a certain idea of limited government.  The interpretation of the requirement that laws should be reasonably susceptible of compliance has similarly changed in tandem with shifting notions of human autonomy and entitlements.  Right up to the early Nineteenth Century, English law, while priding itself on its respect for the rule of law and the ‘rights of free-born Englishmen’, included a variety of criminal provisions – notably those on vagrancy – which manifestly violated, in relation to certain groups in the population, today’s conception of possibility of compliance.  This was not just a question of a practical inability to match up to acknowledged ideals: it was also a matter of whether this was seen, normatively, as a problem.  

In other cases, it is not so much the development of political ideas as the practical preconditions for realizing them which underpins their changing contours.   An example here would be the tenet, widely shared in today’s constitutional democracies, that the law should be publicized and intelligible.  Even today, this ideal is difficult to realize.  But it would have been a far more distant ideal in societies with very low levels of literacy and without developed technologies of communication such as printing.  A further example of this kind relates to the ideal that official action should be congruent with announced law.  It seems obvious that this tenet must have a significantly different meaning in today’s highly organized, professionalized criminal justice systems than in a system like that of England prior to the criminal justice reforms of the early Nineteenth Century.  This was, after all, a system in which criminal justice enforcement mechanisms were vestigial, with no organized police force or prosecution, and much enforcement practice and indeed adjudication lying in the hands of lay prosecutors, parish constables and justices of the peace.  There was no systematic mechanism of law reporting and hence of communicating the content of legal standards to those responsible for their enforcement, nor was there any systematic process of appeals which could test and establish points of law.  

These institutional features of Eighteenth Century English criminal justice also had significant implications for the law’s achievement of coherence.  While the system of precedent of course conduces to both substantive coherence and even-handedness in enforcement, the relatively disorganized mechanisms for appeal and law reporting made significant regional variations inevitable – particularly in relation to criminal adjudication handled by lay justices rather than assize judges.  (To get a sense of the relative scales here, it is worth knowing that it has been estimated that in the mid-Eighteenth Century, there were about 5,000 justices, as opposed to just 12 Assize judges).  Again, standards associated with today’s rule of law played an important role in underpinning the modernizing reform movement from the late Eighteenth Century on.  But the fact is that, for many decades, these sorts of discretionary arrangements, inimical to our view of adequate levels of coherence and congruence, were regarded not merely as acceptable but as consistent with respect for the rule of law.  For the rule of law was, at that time, embedded within a highly personalized model of sovereign authority; one in which the discretionary power of mercy was a core rather than a penumbral feature.   

Does this imply that the rule of law in Eighteenth Century England was an empty ideological form, an aspect merely of the rhetoric of those in power?  This would be too quick a conclusion.  While the popular, as much as elite, association of the rule of law with the distinctive virtues of the English legal system stabilized an essentially hierarchical political order, the norms associated with the ideal did pose genuine constraints on official power. The rule of law, then, is double-edged: it plays a role in both constraining and legitimising power.  We therefore need to assess both its status as a modern ideal of democratic governance and its changing role in legitimising and constraining certain forms of state power.  In reflecting on the relationship between the rule of law and the perceived legitimacy of legal systems, it is worth considering, for example, the capacity of the rule of law under certain social and historical conditions simultaneously to structure political power and yet to legitimise laws which might be regarded as fundamentally unjust.  The delicate balance between legitimacy and power is well illustrated by E.P. Thompson’s famous study of the Black Act of 1723.  This statute, which dealt with poaching, enacted broad offences with draconian penalties: it was a piece of legislation which, in Thompson's words `could only have been drawn up and enacted by men who had formed habits of mental distance and moral levity towards human life  or, more particularly, towards the lives of the ``loose and disorderly sort of people'''.  Yet Thompson's study testifies also to the sense in which the rule of law genuinely constrained political power.  As Thompson famously put it - in terms resonant with both Hart’s positivist conception and Fuller’s inner morality of law: '....It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity. It is true that certain categories of person may be excluded from this logic (as children or slaves), that other categories may be debarred from access to parts of the logic (as women, or, for many forms of eighteenthcentury law, those without certain kinds of property), and that the poor may often be excluded through penury, from the law's costly procedures. All this, and more, is true. But if too much of this is true, then the consequences are plainly counterproductive.’ 

Eighteenth Century rulers – like their successors today – ‘traded unmediated power for legitimacy’.  But the form which this mediation takes has varied substantially over time and space.  In Europe, the quest for modern limited government realised itself in the great legal codes of the Nineteenth Century, in which the principle of legality was a key symbol of progress and modernity.  In the USA and many European countries, judicial review not only of executive action but of legislation in relation to a strong Constitution became the benchmark of limited government – an institutional arrangement which became acceptable in Britain only with the passage of the Human Rights Act at the start of the Twenty-First Century, and then only in highly attenuated form.   The first steps towards institutionalising an international rule of law emerged only in the Twentieth Century and that of an ambitious, human rights-oriented, moralised international law, only after the Second World War.  All these conceptions of the rule of law are born of their environment: the ideal takes its complexion both from perceived problems - whether arising from war, revolution, atrocities or ideological struggles - and from perceived institutional capacities.  Eighteenth Century English criminal justice looks to us like both a chaotic system and one which violated key precepts of the rule of law.  But in the context of the highly personalised system of authority prevailing up to the late Eighteenth Century, discretionary arrangements such as the prerogative of mercy itself constituted a guarantee of law’s authority, and may hence be regarded, paradoxically, as an aspect of the Eighteenth Century conception of the rule of law.  Similarly, the – to our eyes extraordinary – reliance on hearsay evidence about character and reputation itself represents a set of institutional capacities unthinkable to contemporary systems of criminal justice: the ability to draw, within a lay-dominated process located in a relatively immobile and stratified world, on local knowledge.  This is not to make any normative evaluation of the Eighteenth Century system. It is simply to point out that its capacities, and needs, for legitimation were significantly different from those of our criminal processes today.  These differences shaped to a significant degree normative concepts such as the rule of law in terms of which the system was rationalised and, ultimately, reformed.   Within certain limits, what counts as arbitrary power, or clarity, or certainty, in short, shifts over space and time.

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