This is Part II of a two-part piece. Part I outlined a few of the elements of the famous Hart–Fuller debate, focusing on HLA Hart’s position. Part II places the emphasis upon Lon Fuller’s response to Hart’s position. Later, in taking stock of the lessons to be learnt from the Hart–Fuller debate viewed in its entirety, consideration is given to the Russian Federation’s recently introduced (so-called) ‘fake news’ laws, specifically applying Fuller’s eight principles of legality to these laws.
Fuller’s Principles of Legality: the ‘Inner Morality’ of Law
In his initial response to Hart in 1958, Fuller questions Hart’s general position that under Nazi rule there was law even if it was bad law. Fuller asks us to inquire how much of a legal system survived ‘the general debasement and perversion of all forms of social order that occurred under the Nazi rule’. He asks what moral implications this ‘mutilated system’ had for the conscientious citizen forced to live under it. As Sean Rehaag comments in a book review in the Osgoode Hall Law Journal (2010):
‘It is important to note that Fuller did not argue, in natural law terms, that Nazi dictates had immoral ends and that such immoral ends simply could not be accomplished through law properly so-called. Rather, Fuller argued that fidelity to legality – i.e. to ensuring that laws are public, clear, non-contradictory, proscriptive, reliable, possible to comply with, and applied as articulated – is an essential feature of legal systems that allows human beings to govern their interactions with one another with reference to rules.’
In his more radical later approach in 1964, in his influential book, The Morality of Law, Fuller lays down eight ‘desiderata’ or (as Fuller puts it) ‘eight kinds of legal excellence towards which a system of rules may strive’. These are principles of legality which, according to Fuller, constitute the ‘inner morality of law’. In relation to Nazi law, specifically, Fuller’s position was that the systemic procedural irregularities in which Nazi laws were embedded, as Rehaag puts it, departed so seriously from the principles of legality that at least some Nazi dictates could not reasonably be characterised as legal. The eight criteria that Fuller highlights for discussion are:
- The generality of laws – laws must apply generally and not single out individuals for adverse or unfairly discriminatory treatment.
- The need for promulgation – laws must be publicly disseminated so that the persons to whom they apply are aware of them and can arrange their affairs to comply with them.
- The need for non-retroactivity – the key difficulty here is that such laws offend against the principle nulla poena sine lege (there should be no punishment without law).
- The need for clarity – laws that are opaque or incomprehensible will be intrinsically unfair.
- The need for non-contradiction – this is similar to the need for clarity.
- The imperative that laws are possible to comply with – a law that is impossible to comply with (like a law lacking clarity) will be incoherent and unjust.
- The need for constancy – the persons to whom laws apply need to be able to rely on the consistent and non-arbitrary operation of the system.
- Congruence between declared rule and official action – this is a systemic requirement rather than a characteristic of a law per se.
Rehaag highlights instances where, in the case of Nazi Germany, departures from Fuller’s criteria would have been endemic. For example, the use of legislation that retrospectively rendered criminal acts (including mass murder) lawful, secret regulations and legislation and political interference with the judiciary such that the interpretation and application of laws became subject to executive whims.
Raymond Wacks points out that, according to Fuller, ‘[w]here a system does not conform with any of these principles, or fails substantially in respect of several, it could not be said that ‘law’ existed in that community’. So, essentially this is a procedural, not a substantive, natural law approach.
The difficulty with Fuller’s approach is that lawmakers need to become actively (and, doubtless, morally) involved in the business of promoting the principles of legality. They must engage faithfully – hence Fuller’s notion of ‘fidelity’ – with the principles. When and if they fail to do that, what then? If the principles of legality do not themselves take the form of posited, enacted laws, they will have no overriding effect on a law perceived as immoral. And even if the principles were to take the form of enacted laws, there is nothing to prevent a repressive regime from repealing those laws. At the same time, this sidesteps the core dilemma of what one should do when faced with a substantively immoral law, even one that meets all of Fuller’s principles of legality. As Wacks comments:
‘It is arguable that compliance with Fuller’s ‘internal morality’ [in other words, the eight principles of legality] is no guarantee of a just order; the apartheid South African legal system probably satisfied all eight principles – though Fuller contends that its apartheid legislation revealed a gross departure from the demands of the internal morality of law on the ground that this legislation defined race arbitrarily’. (Raymond Wacks, Understanding Jurisprudence: an Introduction to Legal Theory (4th edn, Oxford University Press 2015) p 43)
(Incidentally, Wacks’s argument relating to the arbitrary definition of race is too much like substantive, as opposed to procedural, immorality.)
There is also a difference between the situation (on one hand) where lawmakers are under a prior duty to take steps to ensure that law is morally as it ought to be – e.g. pursuant to Fuller’s principles of legality (which duty lawmakers may or may not discharge) – and the situation (on the other hand) where law is simply, substantively, morally not as it ought to be. These are two distinct situations that are apt to be conflated. For instance, the first situation opens up a range of issues around what the implications and consequences may be (whether legal or moral) of lawmakers failing to take action to ensure that law is morally as it ought to be. It is perfectly possible that law may be morally as it ought to be regardless of the steps taken by lawmakers: even to the extent that they take, and need take, no action at all for laws to align with a prevailing moral outlook. That is because the law may already be considered substantively moral and may not call for any action or intervention. But if lawmakers fail to take action to ensure that law is morally as it ought to be does that merely imply a need to punish the lawmakers? If that is all, morally egregious laws may remain intact and unrepealed on the statute books. What, meantime, is achieved by punishing the lawmakers (and how do we lawfully punish them if they have not broken a law)?
Issues arising from the second situation are not necessarily resolved by the question of what lawmakers have a duty to do and what they have or have not done, in a given situation in response to that duty. When a substantively immoral law is already on the statute books, say (regardless of action taken or not taken by lawmakers), the ‘horse has already bolted’ so to speak, and a range of different issues opens up. How are we to react to that law? Should we disobey it? How should a successor state (like the Federal Republic of Germany, as successor to the German (Third) Reich) act? Should it, as urged by Hart, promulgate retrospective criminalising legislation? These questions are not necessarily resolved by the existence of a set of principles which govern how lawmakers should now act, or, historically, should have acted.
Fuller’s principles of legality, therefore, do not necessarily present a solution to the age-old dilemma which impelled the legal positivism –v– natural law debate in the first place.
Some Final Thoughts
We commenced Part I of this piece reflecting on laws that the Russian Federation had introduced to criminalise the spreading of allegedly false information, or so-called ‘fake news’, by journalists and others concerning the Russia–Ukraine conflict, the offence being reportedly punishable by a prison sentence of up to 15 years. As recently as March 2024, RusNews reporter Roman Ivanov was sentenced to seven years in prison on charges of spreading false information about the Russian army in the context of Russia’s so-called special military operation in Ukraine.
Are there any lessons that can be learnt here from Hart’s and Fuller’s respective approaches to laws that are judged to be immoral or repressive, or inherently destructive of human or natural rights?
Perhaps the overriding point to make about the idea of legal positivism is that a positivist stance does not actually rule out the possibility of morally evaluating the law, and condemning laws considered to be evil or unjust or repressive. A legal positivist such as Hart would argue that the use of an identifying criterion such as a rule of recognition, analysed in Hart’s The Concept of Law, actually facilitates the task of differentiating ‘law’ from ‘non-law’. Once we know what is (positive, posited) law, we can begin the task of critically evaluating it. The Russian Federation’s so-called ‘fake news’ laws are easily identifiable. That surely opens the door to taking a step back from those laws and reaching an objective and independent view about whether they restrict freedom of speech inside Russia to an extent that might retard progress towards the establishment of a secure peace in the region.
When, on the other hand, we apply Fuller’s principles of legality to Russia’s ‘fake news’ laws, what do we find? The laws are general: applying to everyone, not merely journalists. They are publicly disseminated: i.e. not secret. They had prospective effect: they applied from a specified date in 2022. They did not, in other words, fall foul of Fuller’s non-retroactivity imperative. In their practical impact, in a court setting, the laws will presumably have been found to be clear and non-contradictory. They are fully possible to comply with: journalists, in particular, can comply by saying nothing about the special military operation. The laws can be relied upon to be applied consistently and, some might say, vigorously. Finally, there has been no incongruity between official action taken to enforce the laws and the ‘letter’ of the laws. Official action has reportedly been akin to a ‘crackdown’.
So, in short, laws that have been widely condemned by the international community as perpetuating an unjust and destructive war that is illegal under international law and has allegedly involved the widespread commission of war crimes, meet all eight of the principles that, Fuller would argue, determine their ‘inner morality’. Does that mean that these laws are intrinsically ‘moral’ (good, right, just, fair) and unobjectionable? Sadly, Fuller’s approach does not take us any closer to an answer.
