CREIGHTON Law REVIEW Vol. 57, No.2 SCHOOL OF LAW CREIGHTON OMAHA, NEBRASKACREIGHTON Law REVIEW ARTICLES ‘Tue Supreme Count’s Errogous Equat. Prorection CLAUSE ANALYSIS: SOCIETAL Discemmnation, THE Harvanp COLLEGE DEcision As ‘raz New PLessy v. Fercuson-Lite, AND THE ‘TeaereeNTH AMENDMENT «Larry J. Pittman A Caumionany Essay RevLucrine on Tue Use oF Conrexruat, ARGUMENTS IN TexTUaList STATUTORY Consraucmion ANALYSIS --- Edward J Imwinkelried ‘Unnavenine ie ConuNDRUM THAT 1 SHELLEY V. ‘Kearwer: ENFORCEMENT oF RacialLy Restaicrive Covenants 1s Star ACTION Alex M. Johnson, Jr (Ow Law ap Moraurry: A New Loox at THe Hart-Fuuen Denare reo a CLASsiCaL, PeRsrEcrive Robert P. Kraynak PROBABLE CAUSE AND THE PRESUMPTION OF Inwwocance: How a Canavat, Derexpanr’s Rigi? 70 Far Tata. Reuss on Your Kin's Epucarion in Fine ‘Ants tenes ta sewn ah Henry Nunn NOTES ‘Suoxe an Minnors: Tae Aupicvous NATURE oF THE ‘Mayor Quastions Doctsive as a REFLECTION OF THE InreLuctue Prinowir Tis. «David McGuire ‘Stare v. Winuias: Tue Court oF CRIMINAL APPnaLs oP TENNESSEE INCORRECTLY ALLOWED Rap Lyrics as EVIDENCE 70 Prove THE CHARACTER OP THE ACCUSED 22.222... 2 eee eee eeeeeeee Bryce Kasamoto 189 265 287 347 391 427 467Robert P. Kraynak is Professor of Political Science and Co-Director of the Center for the Study of Freedom and Western Civilization at Colgate University, Hamilton, N. Y. Emai Kraynak@ecolgate.edu347 ON LAW AND MORALITY: A NEW LOOK AT THE HART-FULLER DEBATE FROM A CLASSICAL PERSPECTIVE Ronerr P. Kraywaxt While the famous debate between legal scholars H.L.A. Hart and Lon Fuller took place more than a generation ago, the issues involved have not lost their salience. The central question remains—What is the relation of law and morality?—which both Hart and Fuller understood as the relation of “positive law” to an idea of justice known as “natural law.” This article offers a fresh perspective on the debate by explaining the implicit political assumptions and philosophical commitments of the two legal scholars, which most critics have ignored. It also attempts to uncover the missing ingredients in the debate by turning to Aristot- le's insights about the relation of law to political regimes and Aquinas's analysis of the inherent connections between human law and higher law. These insights are crucial for understanding law’s relation to mo- rality, politics, and ultimate reality, and they reveal the limitations of Hart's analytical jurisprudence and Fuller's procedural jurisprudence. I conclude with some contemporary reflections on the relation of posi- tive law to higher law in such areas as human rights advocacy and international law which re-open perennial questions about law and morality. My aim overall is to bring classical ideas into dialogue with modern problems in order to broaden the horizons of legal studies beyond analytical and procedural jurisprudence. I. INTRODUCTION...... Tl. HART'S LEGAL POSITIVISM: POLITICAL AND PHILOSOPHICAL ASSUMPTIONS. 350 Il. FULLER'S PROCEDURAL NATURAL LAW: CLAIMS AND LIMITATIONS. . IV. MISSING INGREDIENTS IN THE DEBATE: ARISTOTLE’S REGIME ANALYSIS AND AQUINAS'S HIGHER LAW... V. CONCLUDING REMARKS: MOVING BEYOND ANALYTICAL AND PROCEDURAL JURISPRUDENCE IN CONTEMPORARY LAW AND POLITICS. - 363 . 878 . 885 TL would ke to thank my colleaguos—Prolussors Stanley Brubaker, Samuel Zet- tin, and Lake Bierman—for reading drafts ofthis article and offering invaluable sugges- ‘ona for improving it. Iam grateful for their professional advice and friendship.348 CREIGHTON LAW REVIEW (vol. 57 INTRODUCTION ‘The relation between positive law and natural law is an ondur- ing problem that arises inevitably and almost naturally whenever citizens criticize an “unjust law” by comparing the established law to an ideal of justice. The issue also arises when philosophers question the existing laws and customs of a political community in order to discover the true meaning of justice and morality. Without using the precise terms of legal analysis, citizens and philosophers are compar- ing a man-made law which is the established law of the Iand—the root idea of positive law—with a higher moral law that is accessible to reason as a universal and timeless standard of right and wrong—the root idea of natural law. The challenge in examining the two types of law arises from their complex relation as they are sometimes in har- ‘mony and sometimes in conflict with each other—without a clear and predictable way of reconciling them, either in theory or in practice. Socrates wrestles with this dilemma in Plato's Apology and Crito, where he defiantly questions the law, religion, and democracy of Ath- ens but ultimately accepts the verdict of the Athenian jury, even if it is unjust, and rejects Crito's plea to escape from jail. Socrates also explores the many dimensions of law in the dialogue Minos, which begins with the question “What is Iaw for us?” and moves through various definitions—from law as a decree of the Athenian assembly; to several views of higher law, including law as a universal idea and law as a reflection of ultimate reality (“the discovery of what is”); to the divine law of Minos, that requires moral virtue and moderation in wine drinking. After Plato's dialogues, the works of Aristotle develop these points more explicitly, comparing conventional justice with nat- ural justice and examining their many features, such as distributive justice and rectifying justice. Later, Aquinas develops the discussion by classifying laws into eternal law, divine law, natural law, and hu- ‘man law, while insisting that human law must be based on natural law in order to be legitimate, In the modern age, the American found- ers engaged in passionate debates about the ideal of natural law, as, reflected in the Declaration of Independence’s appeals to “the laws of nature and of nature’s God,” in order to justify resistance to the laws of the British Parliament and the decrees of King George IIL ‘Throughout American history, from the Civil War to the eivil rights movement, as well as the culture wars over abortion and marriage, many of the greatest political disputes have been framed as compari- sons between the existing positive laws and higher law ideals of jus- tice, usually expressed in the language of natural rights or human rights. Even today’s passionate appeals to “social justice” against2024) ON LAW AND MORALITY 349 oppressive structures are traceable to the ancient debates about the relation of positive and natural law. Given this lineage in Western and Anglo-American legal philoso- phy, it is somewhat surprising that the Hart-Fuller debate about the merits of legal positivism versus natural law, published in 1958 and continuing over several decades, appeared as such a striking novelty and provocative discussion to legal scholars. One suspects that the surprise was due to the discrediting of natural law thinking by previ- ous generations of scholars and the influence of schools of legal realism and pragmatism, as reflected in the writings of Oliver Wendell Holmes, The Path of the Law (1897) and his almost satiric piece, Natural Law (1918). One may also suspect that the revival of interest in natural Taw debates was an aftershock of World War II, when the experience of Naziam in Germany shook the commitment to legal positivism by figures such as Hans Kelson and prepared the way for the Hart-Fuller debate of the late 1950's Indeed, the precise legal issue that Hart and Fuller cite as their reference point was a German court case in 1949 about whether some- one could be convicted and punished in hindsight under a Nazi-era law that prohibited criticism of the Nazi regime. The disagreement between Hart and Fuller arose from the question: was the Nazi law really a law, meaning a validly enacted positive law by the state, even though it was an immoral and unjust law? Or was the Nazi-era law not a law at all because it egregiously violated common notions of jus- tice and morality and therefore was not binding then or later? ‘This technical point about the status of a Nazi-era law was the spark that lit the debate between the two scholars, with Hart taking the posi- tion of legal positivism, claiming it was a valid law, though a bad law, and Fuller taking the position of procedural natural law, claiming it never existed as a law at all. Interestingly, both scholars claimed the Nazi-era law was not binding, but their underlying reasons were so different that it led to a sharp debate about the questions, “what, is law? and “what is the relation of law and morality?” and “what gives law its real existence?” with the assumption that answers could be derived from a precise conceptual analysis of legal language and principles. What I would like to show is that this debate offers a rich oppor- tunity to see analytical and procedural jurisprudence at work, and it clarifies some important issues between Hart and Fuller. Yet, I would also like to show the limits of their approach in avoiding the underlying philosophical and political issues of Hart's legal positivism and Fuller's version of natural law. My thesis is that these deeper issues are hinted at in the debate, but they need to be uncovered and made explicit (as explained in Parts II and Ill). I then argue that a full understanding350 CREIGHTON LAW REVIEW (Vol. 57 of the implicit assumptions leads us to Aristotle and his insights about, the relation of law to political regimes, as well as to Aquinas and his views on the inherent connection between human law and higher law, especially natural law, and the role of prudence in determining politi- cal obligations (as explained in Part IV). These classic insights provide a better understanding of the relation of law to morality, polities, and ultimate reality than the analytical and procedural jurisprudence of Hart and Fuller; and they can help us understand contemporary prob- Jems in international law and human rights advocacy (as explained in Part V). Il, HART'S LEGAL POSITIVISM: POLITICAL AND PHILOSOPHICAL ASSUMPTIONS ‘The debate between Hart and Fuller first appeared in two articles published in the Harvard Law Review in 1958, beginning with Hart’s “Positivism and the Separation of Law and Morals" and Fuller's “Posi- tivism and the Fidelity to Law ~A Reply to Professor Hart,” and con- tinuing in their books, Hart's The Concept of Law (1961) and Fuller's ‘The Morality of Law (1964). Other scholars jumped into the debate as well, such as Ronald Dworkin in Taking Rights Seriously (1977) argu- ing against Hart, and the collection of legal scholars in The Hart-Fuller Debate in the Twenty-First Century: 50 Years On (2010) taking different sides.* I shall begin by summarizing the claims of the two sides, while also attempting to uncover the unstated philosophical and political as- sumptions of their arguments. ‘Turning first to Hart, one might observe that he is not initially mo- tivated to refute the theory of natural law, but to clarify the meaning of legal positivism —a school of thought whose accepted formulations seemed too narrow to Hart, even though he was broadly sympathetic to it. Those formulations came down from John Austin and Jeremy Bentham (and more distantly from Thomas Hobbes) as the “command theory of law.” According to this theory, law is nothing more than the command of a “sovereign” backed by the threat of force and habitually obeyed. In this view, a law is a law, even ifit is not just or morally right or in accordance with divine will; it merely has to be “posited” (meaning 1 LA Har, Psitv {598-629 (1958); Lon I. Fuller, Positivism and Fidelity to Low~A Reply to Professor Hart, ‘71 Hav L. Rev. 690-72 (1968). 2. HLA. Has, Taz Concerr or Law (1961; 24 ed, 1994);Los L. Fou, Tax Mosal- ry oF Lar (1964; rev. ed, 1969) 8. Roxaup Dwouamy, Takive Rims Sswousty (Harvard Univ. Press 1977); Dar ‘Mane Puuisn Duaxre 1 mu Twatery-Fiusr Cramune: Firrr Yeas Ov (Peter Crane, ed, 2010) hereinafter Tur Hase-Funtak Dena).2024) ON LAWAND MORALITY 361 laid down or settled, as the Latin term positus implies) and backed by sanctions, In the words of Austin: the existence of law is one thing; its merits or demerits is an- other. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry. A law, which actually exists, is a law, though we hap- pen to dislike it... Every positive law, or every law simply and strictly so called, is set by a sovereign person or body of per- sons, to members of the independent political society wherein that that body is sovereign or supreme.* Ina broad sense, Hart follows Austin’s approach because it is real- istic rather than idealistic: it describes “law as it is, rather than law as it ought to be,” and it implies that a bad law is still a valid law, even if it is unjust and oppressive. Hence, Hart and Austin emphatically reject the traditional view of natural thinkers, attributed to Aquinas and oth- ers, that “an unjust law is not a law."* And they affirm that there is no necessary connection between law and morality—that law and moral- ity should be treated separately as two different things. It is interesting to note (though sometimes puzzling and frustrat- ing) that Hart rarely discusses his primary reasons for accepting legal positivism’s separation of law and morality. Hart does not argue like Hobbes, who is often regarded as the earliest spokesman for legal posi- tivism in the modern era, that the sovereign’s laws or decrees must be considered absolute and final because the demand to measure positive law by a higher law of morality and justice is inherently dangerous—it leads to anarchy and civil war by giving self-appointed wise men, usu- ally ambitious priests, lawyers, and philosophers, pretexts to disobey the laws of the realm and to foment rebellion, which Hobbes blames for the English Civil War. Nor does Hart argue on metaphysical grounds, also like Hobbes and later Oliver Wendell Holmes and Hans Kelsen, 4. Jou Avena, Tu Paowxce o7 Juniaupice Denne 184 (Cambridge Univ, Press 1954) (1832). 5. Sr. Twos Aqumus, Suna Tuzovacica Part Ll, Q. 96, Art. § (Fathers of the English Dominican Province, transl, 198]). As we aball see, Aquinad’s statements put him on both sides ofthe Hart Fuller debate, since his exact words imply that an law seems Uke itis not properly a law, since i is not binding in conscience (which ‘to Fuller’ view); but an unjust law i tila law in the sense of being a positive law that “should obeyed in most circumstances, bt not all circumstances, in order to avoid eeandal cor instability (which is close to Hart's view). 1d. Aquinas's statements on unjust laws are Actually more subtle and qualified than those atiributed to him. 1d. Aquinas's precise words are: unjust laws “are acts of violence rather than lawa; because as Augustine sas in De Libero Arbicrio, [5 ‘a law that is not just, aeems tn be no law at all emphasis addedi. Wherefore such laws do not bind in eanaciones, except perhaps to avoid scandal ar dinturhanea, for which # man shanld even yield hia right” fH (quating St Augustine ‘of Hippo, De Libero Arbitrio 15 (Dom Mark Pontifex, trans. 1955)(e.988A.D.). The Latin ‘word translated inere as “seems” videtur, meaning to look like orto appear rather than tbo identical to lawlessness. 1.362, CREIGHTON LAW REVIEW [Wol. 57 that natural law is a fiction, an illusion of scholastic immaterial meta- physics, which scientific materialism can overcome.’ Hart does not argue for positivism on the grounds that jurisprudence is a positive science, the “science of the law.” He goes out of his way to explain that the separation of law and morality is different from separating “facts” and “values” (the “fact-value” distinction).” Hart reminds readers that positive law is laden with values and moral terms, such as malice, neg- ligence, intention, murder, wrongs, and so on. In contrast to scientific positivists, Hart never denies the existence of objective standards of justice beyond the positive law.’ And while he is concerned that natu- ral law may encourage moral imposition on others or promote judicial activism in judging “hard cases” where positive law is unclear, Hart does not seem to worry that anarchy might result from appeals to nat- ural law, indeed, as we shall see, he even affirms “a minimal content of natural law.” The main reason Hart follows Austin on separating law and morality is for the sake of conceptual clarity—to avoid the roman- ticillusion that law is an ideal and to expose the real reasons why laws are obeyed as well as the difficult concessions that are often made to accept imperfect laws." ‘To illustrate this crucial point, Hart revisits a disturbing court case in 1949 about the treatment of Germans who had followed Nazi era laws and were tried after the war for obeying or exploiting those laws (often claiming innocence of wrong-doing because they were fol- lowing laws that were considered valid at that time). Hart criticizes the view of the German jurist, Gustav Radbruch, who was a legal posi- tivist during the Nazi era, but repudiated legal positivism after the war and argued that Nazi laws were invalid because they were never laws at all—their inherent immorality made them ipso facto invalid laws even at the time they were considered valid by the state and many citizens." The case was a tricky one because it involved the trial of a German woman after the war for accusing her husband of critic ing the Nazi-regime—in violation of a 1934 law prohibiting such criti- cism—which she apparently did for the purpose of getting rid of her husband! In 1944, her husband was convicted and punished for violat- ing the 1934 law; but he survived and sued her after the war for her misuse of the law as a “grudge informer.” The post-war German court, ruled that the scheming wife should be punished, but the court argued, “Har, supra note 1, at 606-07. Hart, supra note 1, at 625. See td. at 625-27 ‘See generally, HLA. Hart, The New Challenge to Legal Positivism (1978), 36 wen Jor Sun (2010) harsher The New Ohelengd 10. See generally, Hart, supra note 1 iL Taateis,12024) ON LAWAND MORALITY 353 surprisingly, that she was guilty of depriving her husband of liberty in violation of an 1871 German Criminal Code prohibiting illegal depriva- tion of a person’s freedom. In making the ruling to punish the wife, the German court did not use the 1934 statute because the court viewed that statute as “contrary to the sound conscience and sense of justice of all decent human beings” and therefore it was not a law; and s0, the court punished her under the 1871 statute that was considered just and still enforceable.” In other words, the German court followed a type of natural law thinking by punishing the woman under a law that it considered a just law (the 1871 Code), rather than using an “unjust law” that it claimed was no law at all (namely, the 1934 statute). Hart reports that the German legal scholar, Gustav Radbruch, ap- plauded the court’s ruling because Radbruch had abandoned his legal positivism for a natural law approach and agreed with the court's natu- ral law reasoning that the 1934 statute was not a law at all—rejecting the earlier positivist slogan of ‘law as law” (gesetz als geset2) and em- bracing the view that an immoral law cannot be a law. Hart harshly criticizes Radbruch's conversion and rejects the court's reasoning while agreeing with the punishment: (The court's) reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to me to be hysteria, Many of us might applaud the objective—punishing a woman for an outrageously immoral act—but this was socured only by de- claring a statute established since 1934 not to have the force of law, and at least the wisdom of this course of action must, be doubted. Hart then explains that the court’s reasoning should be rejected as hysterical because it hides the genuine moral dilemma of the case: it was right to punish the woman, but it would be wrong to punish her by denying the validity of the 1934 law; instead, one should honestly admit that punishing her would require a legal anomaly, namely, the “introduction of a frankly retrospective law [with] full consciousness of ‘what was sacrificed in securing her punishment in this way.” It is un- clear here what Hart means by a retrospective law; but his view, stated somewhat tentatively and ambiguously, seems to be that the only rea- sonable solution was to create a new statute in 1949 that retrospec- tively outlawed misuse of the Nazi law for personal grudges, so that the court would not have to pretend that the 1934 statute was never valid, 12, Tat aie 13, 1d. at 616-17. 14, Td. at 619, 15 id,354 CREIGHTON LAW REVIEW (Wol. 57 nor resort to the 1871 law. Hart claims that “this case would at least have the merits of candour. It would have made plain that in punish- ing the woman a choice had been made between two evils, [namely], leaving her unpunished and that of sacrificing a precious principle of morality endorsed by most legal systems (namely, the principle of not ‘trying people under retrospective laws." Hart thus concludes: Surely, if we have learned anything from the history of mor- als, itis that the thing to do with a moral quandary is not to hide it. ... The vice of holding] that, at certain limiting points, what is utterly immoral cannot be a law or lawful, is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately fit into a single system, that no one of them has to be sacrificed or compromised to ac. commodate another.” In other words, Hart adheres to legal positivism for the sake of realism and rational clarity, not because he adheres to scientific positivism, which views natural law as a metaphysical illusion (as Holmes and Kelsen assert). Nor does Hart reject natural law as a moral ideal sim- ply because it encourages civil disobedience and invites the anarchy of the state of nature, as Hobbes famously argued. Hart's legal positivism is intimately connected with his analytical jurisprudence that socks rational clarity about what law actually is and why law is accepted as valid—a motive that is primarily conceptual and moral rather than political or metaphysical. Indeed, Hart's attraction to legal positivism seems to be motivated by moral concern—by a kind of “veracity” (as Zipursky calls it) that prevents people from seeing law as they would wish it to be, rather than the way it is.#* Hart also refuses to hide the difficult trade-offs of law in choosing between lesser evils, insisting that lawyers, judges, legal scholars, and citizens understand precisely what is involved in their moral choices and do not confuse obeying the law with satisfying justice or morality. Ironically, then, Hart suggests that opposing the notion that “an immoral law is not a law” enables the legal positivist to strengthen certain aspects of morality, tality, Hence, Hart totally rejects the critic in Germany contributed to the blind worship of the state that helped the Nazis rise to power, a claim he supports by pointing out that legal positivism in England, promoted by Bentham and Austin, was highly 16. Id, 1 Td ono, 18, See Benjamin C. Zipursky, Practica! Positivism versus Practical Perfectionism: ‘he Hart Fuller Debate at Fifty, 88 NYU. L. Rev 1170 (2008) etering to Hart's ciel soa of veracity” as “practical postiviam’ because i socks to tech judges honesty sbout What the law is rather than what judges would ike i tbe).2024) ON LAWAND MORALITY 355 critical of the existing state and was reformist in nature. At this level, Hart is following in the footsteps of Bentham whose philosophy, ac- cording to Hart, was primarily a project of enlightenment aimed at the “demystification” of law through a precise analysis of language—ex- posing the myths, mysteries, and illusions of legal language that have kept rulers in power and people in misery.” The puzzle we are left with is what exactly Hart means by “morality,” since legal positivism separates law from morality while serving moral reform and recogniz~ ing standards outside positive law that improve the human condition. While Hart never answers directly the question of his moral mo- tives, he recognizes that the complex relation of law and morality re- quires him to develop a more nuanced and sophisticated view of legal positivism than his predecessors. His dilemma is that he rejects Aus- tin’s view that law is simply a command of the sovereign backed by force and habitually obeyed; yet, he also rejects the view that positive law gains its strength by its inherent justice and morality. What, then, gives law its power and validity, if not the sovereign’s will backed by physical force (as in Austin and Hobbes), or its inherent justice and morality derived from the application of natural law (as in Aquinas or Faller)? Hart’s answer is “the social sources of law .... [which] hold that the existence of law requires some form of social practice that includes Judges and ordinary citizens . . . [and] determines, in any given legal system, the ultimate tests of legal validity”® Hart's emphasis on the social sources or social practices of law is a kind of third way between law as a command and law as an ideal of ustice—an approach that, at first glance, sounds like an empirical, historical, or sociological study of law. But this is not the case. Hart's novel idea is that the social practices of law are best explained by an analytical or conceptual view of legal systems as “rules,” which he classifies into different types with his own labels—namely, “primary and secondary rules” and the “rule of recognition” which together produce a legal system. Much scholarly acclaim is given to Hart's novel analytical terms because they develop ‘a more nuanced and complex theory of legal positivism than Austin’s and Bentham’s theories, and Hart's analysis of rules purports to of- fer a more realistic explanation of how law and legal language actu- ally works. The challenge of interpretation, as we shall see, is that his novel terms are presented conceptually rather than historically, with- out reference to familiar aspects of Anglo-American constitutionalism, making them difficult to grasp concretely. 19. See H.L.A Hart, The Demystifcation of the Law, in Bssavs On Bextuau: Stuns I Jonseaupecy Axo Poumical Tiwoxy 23-80 (Clarendon Press 1982) hereinafter Be- sars on Brena. 20. ‘The New Challenge, supra note 9, at 461-62.356 CREIGHTON LAW REVIEW vol. 57 In one of his succinct formulations, Hart says that “law may most illuminatingly be characterized as a union of primary rules of obliga- tion with secondary rules,” and these rules are accepted because of an ultimate “rule of recognition” which gives them “legal validity.” At first glance, the distinction of primary and secondary rules sounds like the difference between ordinary statutory law and the underlying con- stitutional law (either written or unwritten), which provides guidelines for the processes and officials that enact statutes, Hart explains that Primary rules preserve minimal social order by restricting violence, murder, theft, and deceit and require basic duties and social obliga- tions, while secondary rules are the underlying constitutional order that grant powers to officials and determine how the primary rules are created, adjudicated, and changed This description, distinguishing between statutes and constitutions, is accurate; but it is apparently in- complete, Hart claims that primary rules may be expressed as unwrit- ten customs in primitive tribal societies as well as in written law codes (uch as the laws of ancient Israel); and he asserts that secondary rules are found in modern states which have a constitutional structure that could be written or unwritten (he seems to have England and America in mind, without citing historical examples). The combination of pri- mary and secondary rules is presented as a formal description of legal systems that can be applied to a variety of cases and is meant to be general or universal Yet, there is more to a legal system than primary and secondary rules because Hart acknowledges the need to explain the “foundations” of the whole legal system, meaning the way it gains acceptance or “va- lidity” in the eyes of both public officials and citizens. Here is where his analysis gets tricky and fuzzy, and seemingly circular. Hart argues that there must be an “ultimate rule of recognition” among those who habitually obey, but it should not be traced to belief in a higher moral law, like divine or natural law: Instead, it must be due to the mere “social fact” of acceptance over time—where being “accepted” is to be considered “legally valid” and being legally valid means to be accepted or “recognized.” This seems like a circular argument. The problem. 21 Haws, supra note 2, a 110-18, 22, 1d. at 89, 23. The New Challenge, supra note 9, at 464, 2. Id. 25. Hawn, supra note 2, at 97-120 where Hart explains these foundations, See Dwor- kin's comments on Harts primary and secondary rules and rule of recognition as "ac- cepted” because they are "valid and valid beestse “practiced but Dworkin misses the Elroularity: “A mle may hoeamn binding on m gmp af penple heeanee that gry them fe practices accepts the rule as a standard for its conduct - (and) are called vali? rules” Rosa. M. Dwosxay Is Law a System of Rules? in Tue Prxosorny oP Law 41 (Ox- ford Univ. Press 1977)2024) ON LAW AND MORALITY 387 can be seen in several passages in The Concept of Law where Hart wrestles with the conundrum: ‘The simplest form of remedy for the uncertainty of ... primary rules is the introduction of what we shall call a ‘rule of recog- nition.’ This will specify some feature . . . by [which] a sug- gested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts... [I]n the early law of many societies, [it may] be no more than an authoritative list of texts of the rules .. . carved on some public monument . . . what is crucial is the acknowl- edgment of the writing or inscription as authoritative, ie., as the proper way of disposing of doubts as to the existence of the rule. Where there is such an acknowledgement there is a very simple form of secondary rule: a rule for conclusive identifica- tion of the primary rules of obligation. ‘This quote raises the question: What makes a rule of recognition au- thoritative? Hart answers: a rule of recognition is unlike other rules of the system. The assertion that it exists can only be an external statement of fact, For whereas a subordinate rule of a system may be valid and, in that sense ‘exist’ even if it is generally disregarded, the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private per- sons... . Its existence is a matter of fact.” Hart then clarifies what the existence of a rule of recognition means as a matter of fact: in applying an accepted ultimate rule of recognition . . . [a legislator] need involve no thought .. . that what he does is the right thing both for himself and for others . . . He need not think of his conforming behavior as ‘right; ‘correct, or ‘obligatory ‘The implication is that “acceptance” of a legal system as “valid” occurs in its “practice”: On the one hand, those rules of behavior which are valid ac- cording to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recogni- tion specifying the criteria of legal validity and . . . of change and adjudication must be accepted as the common public standards of official behavior by its officials.” In other words, Hart claims that a legal system consists of pri- mary rules (ordinary statutes and customary laws of social order) and. ‘Hiawr, supra note 2, at 92 (alteration in origina. Td at 107 (emphasis added), Td. a 112, 14.113, BENE358 CREIGHTON LAW REVIEW (vol. 87 secondary rules (underlying constitutional orders) resting on an ulti- mate rule of recognition (the foundational act of acceptance). Its of- ficials and citizens accept those rules because they practice them, and they practice them because they accept them as legally valid according to a rule they recognize as authoritative—without having to believe that the rule conforms to an objective standard of natural law that is just, right, and true, Law therefore rests on the social fact that it is actually practiced—rather than enforced or believed to be right—a so- phisticated but circular and unsatisfying explanation of how law gains its binding power. The questions remain: Why is a specific set of social practices selected over another in the ultimate rule of recognition? Is the selection a matter of utility, as Bentham might say, or a matter of prescription and tradition, as Burke might say, or an arbitrary asser- tion of will, as Nietzsche might say? Hart seemingly evades the ques- tion by distinguishing “internal” motivation from “external” behavior and focusing his philosophy of law mainly on external behavior while leaving internal motives to the brute fact of acceptance because it is accepted. But this account, in terms of social practices, is not the whole story of Hart’s concept of law. As if to contradict himself, Hart concludes The Concept of Law with two chapters entitled “Justice and Morality” (Ch. 8) and “Laws and Morals” (Ch. 9), where he seems to back-track by bringing morality back into the analysis of law—even arguing for “a minimum content of natural law.”" In chapter eight, on “Justice and Morality” Hart displays a subtle Aristotelian understanding of justice and its many dimensions, such as distributive and compensatory jus- tice. He explores the nature of justice while sticking to a framework of legal positivism by distinguishing three things, each more comprehen- sive than the others: (1) Law; (2) Justice; and (3) Morality. Hart's pur- pose is to answer the traditional critics of legal positivism who think that law, justice, and morality must necessarily be connected because they deal with human goods that are intertwined. Hart attempts to show that they are conceptually distinct and should be treated on dif- ferent levels in a kind of hierarchical order from lower to higher goods that keeps them separate. Law is narrower than Justice, and Justice is narrower than Morality, and Morality deals with highest human ideals. ‘More precisely, Law deals with the basics of social order that re- quire rules to be “justly administered” in the narrow sense of follow- ing procedures that are impartial and that follow general rules by observing “the principle that ‘like cases be treated alike’ Here, Hart 0, 1d. at 168-6. BL. 1d at 151-95. 52, Td. at 159-61.2024) ON LAW AND MORALITY 359 sounds like Fuller in emphasizing the generality of law as a source of ‘morality found in legal procedures.” Yet, Hart insists that law should avoid implementing a notion of justice because different conceptions of justice make it impossible to agree, especially regarding the question of whether justice is a kind of equality or inequality, as Aristotle and Plato were acutely aware." In addition, those who try to link law with social justice, understood in terms of the “general weifare of society” or “the common good,” have difficulty defining these concepts: “It is not clear what these phrases mean, since there seems to be no scale by which contributions of the various alternatives to the common good can be measured and the greater [good] identified . . . [leaving it] open to criticism as merely partisan and unjust.”** Hart's argument is right ‘out of Aristotle's Politics, where the competing claims of justice among democrats, oligarchs, and aristocrats are weighed and Aristotle himself seems to leave open which claim best represents the common good. Hart is clearly educated by Aristotle (without citing his works), but draws the conclusion that law's need for impartiality makes it difficult to define or implement justice, and therefore law should have lower as- pirations than substantive justice, Ultimately, Hart admits that, even ifjustice were possible to define and to implement, it does not embrace all of morality: “Principles of justice do not exhaust the idea of moral- ity; nor are all criticisms of law on moral grounds made in the name of justice.” What, then, is morality according to Hart? Here, he fi- nally gives an answer which seems to be drawn from both Aristotle and Aquinas without citing them: Morality deals with duties that are dif- ferent from legal rules because morality is not man-made. Essentiall “moral rules cannot be brought into being or changed or eliminated’ in the same way that legal rules can be created or changed." At the highest level, moral rules even go beyond duties; they are voluntary and cannot be legislated, Hart argues, because morality deals with the highest virtues—with the peaks of human existence found in the ideals of heroes and saints: ‘The hero and the saint are extreme types of those who do more than their duty . . . deserving praise for the moral virtues 38. See Jeremy Waldron, Positiviem and Legality: Hart Equivocal Response t0 Fuller, 8 NYU. L. Rev, 1185 (2008), which emphasizes Hart's inconsistency in both denying and alirming the morality inberent in legalism. ‘34. See Harr, supra note 2, at 158. 36. Id. at 162-63. 36. 1d. at 168. See also, Aron, Poumcs (Barker trans1, 1968) bi. III, ch. 10, 128]a11-1281a12 (tating “But it is a mattor of question what ought to be the sovereign ‘power in the state. Clearly it must be either the multitude, or the ric, or the goed, or the ‘one man who is best ofall, or a tyrant, Dut all ofthese arrangement appear to involve disagreeable consequences”). ‘ST. Id. at 163 38, Id at 171-72.360 CREIGHTON LAW REVIEW (Vol. 57 which they manifest in daily life such as bravery, charity, be- nevolence, patience, or chastity . . . {they] carry forward be- yond the limited extent which duty demands.” Hart recognizes that to try to legislate heroic and saintly virtues would “cramp human liberty, especially in the discussion and practice of religion... .™° In other words, Hart concludes in the spirit of J. S, Mill (again, without citing the philosopher by name) that the law of society should provide people with liberty and equality and “protec- tions from harm” which allow people to choose their way of life: “One of the great justifications of democracy is that it permits experimentation and revisable choice between alternatives.” This chapter may well be the richest chapter in the book because it is the most substantive discussion of human goods and the good life (which may explain why it is the least cited, since it is so un-Hartian). Tt shows that Hart is fully aware of the peaks of human aspiration, even though his legal positi ism is ultimately based on a minimalist view of law that limits law's capacity to promote the highest human virtues—which Hart removes from law’s realm in the spirit of modern liberalism. This chapter sug- gests that Hart is a legal positivist, not only for conceptual clarity, but also from a love of liberty and commitment to liberal democracy, whose notion of limited government requires the separation of law and mo- rality.? What is odd about Hart's analysis is that so many of his cru- cial points allude to political philosophers who are hidden from sight: Hart’s rule of recognition, based on “social practices,” could suggest Benthamite utilitarian explanation of something that is adopted be- cause it is useful for many people; Hart, also admits that the rule of recognition resembles Hans Kelsen's Basic Norm, except the rule of recognition is not a fictional norm but “a customary rule actually fol- lowed by the law enforcing agencies of the legal system,’—a claim that, sounds like Burke's prescription. * We also noted that Hart’s defense of 39, 1d 178. 0. Id 41 1a at 179 42, See Juv: Suxtan, Lesassw (2nd ed. 1986) for a trenchant critique of legalism {for masking the unavoidable political goals of legal eystems, especially when it masks the goal of advancing decent liberalism. See also, her comments on the limits of the Hiari-Fuller debate for aot acknowledging the inherent connection of legalism with libor- alism and for not clarifying the virtue of justice, at 107-10, 113, ‘48. Sce Haws, supra note 2, at 245 (comparing Hart's rule of recognition with Kalson's Basic Norm); se also, The New Challenge, eupra note 9, at 451, 465 (stating “[Kelsen's) Basie Norm obviously has a certain affinity with the rule of recognition. The latter is not, however, as Kelsen's Basic Norm is, a mere postulate or hypothesis of le gal theory, but it has the nature of a customary rule setwally followed + (emphasis ‘added)) In othor wordy, Hart’ rulo of resognition io an actual practic, not ation, that derives its reality from custom enforced by courts and polie-resembling the unwritten constitution of Burke's prescription, codified into common law by eourts and made into ‘enforceable positive law Id2024] ON LAWAND MORALITY 361 liberty is stated in the language of J. S, Mills liberalism which protects individuals from “harm” and allows for “experimentation” in testing ideas, Finally, there is Hart's description of heroic and saintly virtues, which are Aristotelian and Thomistie notions, presented as supererog- atory ideals that are internally motivated and above the positive law. Hart's complex position on law and morality is further developed in the complementary chapter nine of The Concept of Law, entitled “Laws and Morals” where Hart again qualifies his legal positivism by arguing for a “minimal content of natural law.” He recognizes the ap- parent conflict with strict positivism, but he proceeds nevertheless to defend an accommodation to natural law by reminding readers that “egal positivism . .. is the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy the demands of morality, though in fact they have often done so." Hence, natural law can be included in the actual practice of law because it is fact of legal and social life. Hart then proceeds to discuss and to reject Aristotle's no- tion of natural law as natural teleology—the idea that “every existing being is conceived as not only tending to maintain itself in existence but as proceeding towards a definite optimum state which is ts specific ‘good—or the end (telos, nis) appropriate for it... . [like an] acorn grow- ing into an oak [tree].” Instead of aiming at perfection or virtue, how- ever, law should aim at the “minimum purpose of survival which men. have in associating with each other™* Hart bases his argument for minimal natural law on five claims about human nature which seem to him undeniable and are implicitly drawn from Hobbes: (1) human vulnerability, meaning anyone can be killed or hurt by others; (2) ap- proximate equality—meaning differences in intellectual capacity do no negate the rough equality of power “since even the strongest must sleep at times and . . . lose temporarily his superiority ... requiring mutual forbearance and compromise.” Hence, “social life with its rules ... is irksome but at any rate less nasty, brutish, and less short than un- restrained aggression for beings approximately equal”; (3) limited altruism—meaning humans have a social nature but not enough to dispense with controls; (4) limited resources—requiring dependence on others; and (6) limited strength of will, requiring rules respecting per- sons, property, and promises as necessary. This analysis of the facts of human nature leads to Hart’s surprising admission: the simple truisms we have discussed not only disclose the core of good sense in the doctrine of Natural Law. They are of “44, Tas, eupra noto 2, at 181-82, (emphasis added), 4, Id. at 186-86. 46. 1d. at 199, (citing Tuowas Hounes, Lavumuan, chs. 14-15 (1651), Davao Hones, ‘Tanaris oF Hinuax Naruns (1739) , IIL 2 in Harr, eupra note 2, at 254). 41. Td. at 191 (quoting Taos Hoses, Levamiax, ch, 13 (1851),362 CREIGHTON LAW REVIEW (Vol. 57 vital importance for the understanding of law and morals... . in this form we should reply to the positivist thesis that ‘aw may have any content.#* In what appears to be a further concession to the idea of a minimum content of natural law, Hart seems to say that law should provide a minimum of protection for the inherent dignity of every human be- ing, even if many societies have not done so. This point emerges from Hart's emotional and wistful criticism of slavery as practiced in many societies, including the United States, which Hart highlights by refer- ring to a passage in Mark Twain's Huckleberry Finn where Huck seems to casually dismiss the death of a Black man, before Huck eventually comes to recognize the humanity of Jim.‘* Hart observes that, “un- fortunately,” societies can be “viable” without extending recognition of human dignity to all human beings, but they should try to respect the humanity of all people as a matter of minimal natural law jus- tice, where natural law is now equated with basic human dignity and human rights in a Kantian sense, along with selfpreservation in a Hobbesian sense.” In sum, the preceding analysis of Hart’s concept of law shows that, Hart has a complex, and perhaps fatally inconsistent or contradictory, view of the relation of positive law and natural law. Hart remains com- mitted to legal positivism because he believes there is no “necessary conceptual connection” between law and morality, even if they are often connected contingently as social facts, Hart is engaged in the enter- prise of analytical jurisprudence, describing “law as it is, rather than law as it ought to be,” while going beyond Austin’s command theory of law by introducing many qualifications drawn from the great po- litical and moral philosophers, largely unacknowledged. Indced, one could say that Hart’s analytical jurisprudence is only the surface of his seemingly neutral and apolitical legal positiviem—it is like the tip of an iceberg that rests on a largely hidden substructure of philosophical theories and political commitments. These theories and commitments include Hart’s claim that law owes its binding power, not simply to force or to an ideal of justice, but to a rule of recognition that resembles Kelsen’s Basic Norm. However, Hart's claim differs by being an actual social practice that is seemingly accepted as a brute fact, while also be- ing “a customary rule actually followed” in a Burkean prescriptive way or being useful in a Benthamite utilitarian way. Other philosophical ‘theories and political commitments that add qualifications to Hart’ le- gal positivism are the “minimum content of natural law” derived from Td at 104-95, 49. Td. at 196, 50. 7a,2024) ON LAWAND MORALITY 363 facts of human nature which require protections for life and property, as Hobbes argued for the natural right of self-preservation, and Hart’s discrete suggestion that law should respect human dignity by opposing slavery and segregation, reminding one of Kant’s moral imperatives. Ultimately, Hart argues that law should respect the limits of political power in the classical liberal style of J. S. Mill and that the state should not try to legislate the highest virtues of heroes and saints, which Hart derives from Aristotle and Aquinas. In later writings, Hart even ap- proves of Mill's addition of moral rights to Bentham's utilitarianism and admits that, despite theoretical difficulties, “a theory of rights is urgently called for . . . (due to] the last half century [of] man’s inhu- manity to man’; for the same reason, Hart praises the U. N. Charter for affirming “human rights and the dignity and worth of the human person.” Do these several important qualifications mean that Hart is not really a legal positivist but a kind of chastened natural law thinker who is advancing a political and philosophical agenda? Let us turn to Fuller and to the broader issues of the debate in order to shed light ‘on these questions. II FULLER'S PROCEDURAL NATURAL LAW: CLAIMS AND LIMITATIONS Fuller elaborates his spirited reply to Hart in his 1958 article, and later in his book, The Morality of Law (1964). In the exchanges be- ‘oveen the two legal scholars, Fuller identifies himself explicitly as a natural law thinker, but he clarifies his view by rejecting traditional natural law doctrines—meaning, Fuller rejects ancient and medieval versions of natural law, as expounded by Aristotle and Aquinas, which are theories of virtue—as well as the early modern versions of natural law expounded by Locke and by the American founders in the Dec- laration of Independence—which are theories of God-given natural rights. Fuller's reasons for rejecting the classic natural law doctrines 51, HLA Harr, Uiilitarianiem and Natural Rights, in Bssavs w Jumseauence 210 Paaosoetr 181, 196 (1983). Hart's shit in nearly affirming human rights is significant ‘compared to his earlier skepticism about any moral rights beyond a basic equal right to freedom, as expressed in HLA. Hart, Are There Any Natural Rights? 64 Pat. REY. 175-81 (1965). 52. See W.C. Starr, Law and Morality in HLL.A. Hart's Legal Philosophy, 61 Mana LL. Rev 678, 686 (1984). William Starr discusses Hart's apparent contradiction without seeing the problom: “Hart asserts that there isa core of morality in every legal system, ‘Thus, to seriously maintain that legal polliviam isa priori uneympatholie to all varict- jes of natural law isto make an unsubstantiated clan” Yet, if Hare admits that there is ‘a necessary coe of morality in all lav, then Hart is no longer a legal positivist. ‘58. Fullor explicitly rejects these doctrines in his early book Lato in Quest of Itself, stating T should like to have it understood that any compliments inthe direction of nat- ural aw are not addressed to the doctrine of natural and inalienable rights364 CREIGHTON LAW REVIEW (ol. 57 are never fully developed or fully explained, but they seem to be due to philosophical reasons about the untenability of notions of divine cre- ation, natural teleology, immaterial metaphysics, and foundationalist, notions of human nature, While Fuller expresses gratitude to Catholic natural law thinkers for preserving some of these ideas, he distances himself from them." Fuller refers to the classical and Catholic doc- trines as “substantive natural law,” which he opposes (for the most part) out of wariness of all higher law doctrines—dismissing them as intangible fictions which are like a “brooding omnipresence in the skies.” Instead, Fuller defends a viewpoint that he calls “procedural natural law"—meaning a type of morality and justice that arises from the forms and procedures of a proper legal system which is neutral (again, for the most part) regarding the content of morality and jus- tice, Fuller believes he is strengthening “fidelity to lav,” in contrast to Hart, whom he accuses of weakening fidelity to law by separating law and morality. Fuller seeks to bring law and morality together with his modified natural law that shows “the inner morality of law” implicit in the procedures, as well as in some of the “purposes” of the rrule of law itself” The puzzle in interpreting Fuller is that he also affirms some features of “substantive natural law” and even defends a “morality of aspiration” that he derives explicitly from the classical Aristotelian conception of virtue aimed at the perfection of man as a social animal in service to the common good. I shalll present Fuller's position and arguments in four interrelated points, drawing upon his ‘books and articles. Fuller's first and fundamental criticism of Hart's legal positiv- ism is that it locates the primary source of law’s binding power in the wrong place. According to Fuller, law is not binding simply because it is backed by threats of force (a point Hart also makes), nor because it is embedded in customary, useful, or accepted social practices as a rule of recognition (Hart’s main thesis). Rather, law is binding because it is Inor] a defense of ll things said in the name of that excellent philosopher, Saint ‘Thomas Aquinas. [although] there is much of great value for the present day in the writings of those thinkers. Low L, Funan, Law mv Quist oF I1SEL? 100-01 (Boston: Beacon Press 1940). ‘54 Fuller, supra note 1, at 660. 55, See Lon L. Puller, Reason and Fiat in Case Lave, 59 Hav. LR, 976,979 (1946) (drawing on Justice Holmes’ dissenting opinion to describe notions of intangible higher Jaw as illusions of immaterial metaphysies and divine will, although one cannot find a systemati refutation of higher aw in Fuller's writings, only a blunt diesel) oe also South Pac. Co. v. Jensen, 244 US. 206, 222 (1917) (Holmes, J, dissenting) (referring to common law as piein-the-sky). 56. Puller, supra note 1, at 633, 57. See Id. at 660-64 58, See Id. at 685-72.2024] ON LAWAND MORALITY 365 believed to be “necessary, right, and good." In one of his succinct for mulations, Fuller says: “[An effective constitution] must be accepted . .. not as law, but as good law.” ‘This is the main difference between legal positivism and natural law thinking: ‘Most of the issues raised by Professor Hart's essay can be restated in terms of the distinction between order and good order. Law may be said [by positivists] to represent order sim- pliciter. Good order is law that corresponds to the demands of justice, or morality, or men’s notions of what ought to be ... {aithough) it is no easy thing to distinguish order from good order By emphasizing good order as the essence and aim of law, Fuller puts himself on the side of natural law thinkers who see positive law as nec- essarily connected to or derived from justice and morality. After this claim, however, Fuller's position gets complicated— which leads to my second major point: Fuller is not willing to embrace, at least not initially, a notion of good order based on substantive natu- ral law, meaning, ideals which specify the content or ends of the good life, such as the classical ideas of virtue and the common good or the modern idea of natural rights or human rights."' Fuller rejects the ap- peal to “higher law” in its several classic versions as being too intangi- ble, too uniform for the diverse aims of individuals, and too disputable to serve as a standard for judging positive law." Instead, Fuller argues for his special claim that good order can be found in procedural natural Jaw, which he also calls the “internal morality of law” or “inner moral- ity of law. What does this phrase mean? In a well-known chapter of ‘The Morality of Law, Fuller describes the eight criteria of genuine or valid legal systems that are procedural rather than substantive: Law must be (1) general, consisting of rules that apply to classes of people or things; (2) promulgated, made publicly known, if not actually written down; (3) prospective, rather than retrospective; (4) clear and under- standable; (5) free from contradictions; (6) not impossible; (7) constant over time, meaning not frequently changed; and (8) display congruence between official action and the law.“ Fuller claims that these eight, criteria constitute “legal morality” and may be considered a version of natural law—but not the traditional kind: Do the principles expounded in [this] chapter represent some variety of natural law? The answer is an emphatic, though qualified, yes. 59. 1d. at 642 60. 1d. at 644. 61, Td. nt 659-61, 62. Id. at 651 83. Id. at 45, 64, Fuutin, supra note 2, at 6-94.366 CREIGHTON LAW REVIEW (ol. 57 What I have tried to do is to articulate the natural laws of a particular kind of undertaking, which I have described as ‘the enterprise of subjecting human conduct to the governance of rules. These natural laws have nothing to do with any ‘brood- ing omnipresence in the skies’ Nor have they the slightest affinity with any such proposition as that the practice of con- traception is a violation of God’s law. They remain entirely ter- restrial in origin and application. They are not ‘higher’ laws; if any metaphor of elevation is appropriate, they should be called ‘ower’ laws. They are like the natural laws of carpen- try... .respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in ite Fuller's famous claim is that there is something called “procedural natural law” that inheres in any legal system that follows the pur- poseful “enterprise of subjecting human conduct to the governance of rules”—it will produce, not mere order, but “good order” (also called “eu- nomics”) without aiming at a substantive end or good, such as virtue or distributive justice, or the progress of civilization or a specific regime such as liberal democracy and human rights.* How is this possible? Fuller's answer is that “fidelity to law’—meaning, the rule of law itself—contains implicit moral assumptions of a substantive kind, without aiming at them, and that “substantive aims should be achieved procedurally.”* In support of this view, he observes that the rule of law is not morally neutral because it assumes a specific moral view of hu- man beings—man as “a responsible moral agent” with the ability to ‘understand, to follow the general rules of law, and to be held account- able for his faults." His argument has a strongly Kantian flavor in its references to moral agency as a reflection of rational autonomy and human dignity: Every departure from the principle of the law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him todo an act that is impossible, is to convey .... indifference to his power of self-determination ... . I should like to recall what we would lose if the concept of responsibility ever disappeared from the law. The whole ‘body of law is permeated by two recurring standards of deci- sion: fault and intent. emphasis in text]. Philosophic discus- sion of these notions has largely concentrated on their role in criminal law . . but these twin standards play an equally 65. 1d at 96, 66. Fintan, supra note 2 at 106, 87. Fuller, supra note 1, at 643. 68, Fuss, supra note 3, at 162, 167,2024) ON LAWAND MORALITY 367 important role in the law of contracts, torts, and property. .. . if we were to lose throughout the law the view of man as a responsible center of action . .. we would be at a loss to know what justice requires.” In addition to the Kantian element of recognizing the dignity of man as a responsible agent, Fuller’s view of the morality of law includes an Aristotelian touch with references to citizens living under law. A re- cent scholar, Kristen Rundle, highlights this dimension of Fuller's legal theory under the rubric of the “forms of law” based on “eunomies,”liter- ally good law or well-made law, which Fuller takes to mean the moral relation of ruler and ruled inherent in the rule of law: For Fuller, there can be no meaningful concept of law that does not include a meaningful limitation of the lawgiver's power in favor of the agency of the legal subject. This is not a moral objective that is imposed on the enterprise of lawgiving from without, It is simply something that follows from the formal distinctiveness of law as the enterprise of subjecting human conduct to the governance of general rules.” Ina farther elaboration, Rundle argues that Fuller's chief insight is that the rule of law limits and restrains the power of the state in a way that permits self-governing citizens to flourish: Citizens will only have reason to engage in the activities and dispositions necessary for a legal order if the law-giver abides by certain moral principles . . . jurisprudential accounts of law must recognize that ‘maintaining a legal system depends upon the discharge of interlocking responsibilities ~ of gov- ernment toward the citizen and of the citizen towards the government." ‘These insights raise Fuller's account of the inner morality of law to lofty moral ideals that are closely connected to Kant's ideal of hu- man dignity and Aristotle's civie virtue (although Fuller does not: ac- knowledge these influences), Fuller's central claim is that rule of law itself—enshrined in such sayings as “Not Man, but Law is King’—has a moral dimension in procedural limits on power which moderates rulers and makes citizens into responsible and virtuous agents of self-government. ‘We can see the full power of Fuller’s argument about the morality of procedures in a third major point: Fuller’s trenchant analysis of law in the Nazi era, arising from the case of “the grudge informer” Here, 8. Td "70._Kzusroe Ruwous, Fonus Lamsaare: Recianano rice unisenvoence oF Lox L. FUER 2,75, 189 (2000), ‘7A. Mark Bonnett, Leaving the Hart-Fuller Debate and Reclaiming Fuller: Form, Agency, and Morality in Kristen Rundle's ‘Horme Liberate, 44 Vicwosiax Us. oF Wrutivorow L. Rev. 461, 465 (2013) (quoting Roots, supra nate 70, at 216)-368 CREIGHTON LAW REVIEW (Vol. 57 Fuller tries to get beyond the semantic tangle of the debate, where Hart insists that the 1984 Nazi law prohibiting criticism of the regime I a law, though a bad law and not binding, and Fuller insists that it was not a law at all and therefore not binding.” Fuller spends several pages explaining why the issue between them is not merely semantic: Hart's whole approach prevents him from seeing the very nature of tyranny as a lawless dictatorship with decrees of the tyrant used for murdering opponents and deceiving the masses by a veneer of legal normalcy. Fuller's criticism amounts to saying that Hart’s legal positivism prevents him from recognizing the full horror and cunning perversity of tyranny. Fuller argues powerfully that it is impossible itler’s fake ‘laws’ as valid laws that simply had an evil pur- g, for example, Hitler’s use of retrospective laws to rename the Roehm purge of seventy rivals in 1934 in order to “transform into lawful executions what was simple murder when it happened,” and the Nazi-regime’s use of secret laws by which “wholesale killings in concentration camps were made ‘lawful’ by secret enactment.” A fur- ther consequence of the phony Nazi ‘laws’ was the uncertainty among judges about what were arbitrary decrees or laws, s0 “courts were all ways ready to disregard any statute” and to leave unpunished the vi lence of “the party in the streets.”* These examples illustrate Fuller's major point about the way that forms or proper procedures, such as public promulgation and prospective rather than retrospective laws (ex post facto laws), limit rulers and restrain abuses of power. On a deeper and more controversial level, Fuller defends Gustav Radbruch’s claim that “a general acceptance of the positivistic philoso- phy in pre-Nazi Germany made smoother the route to dictatorship"—a claim that Hart dismisses as a false and outrageous charge against positivism.” Fuller even asks the daring question whether there is, “any causal connection” between positivism and Hitler's rise to power." Fuller documents the case that “seventy-five years before the Nazi- regime the positivistic philosophy had achieved in Germany a standing such as it enjoyed in no other country.” The German legal establish- ‘ment sought to purge from legal theory all “vestigial traces of natural law thinking” (spearheaded by Bergbohm) and to bring international law in line with the clarity of positivism; it regarded Anglo-American common law as “a messy and unprincipled conglomerate of law and morals” and asserted that “positivism was the only theory of law that 72, Puller, supra note 1, at 660, 78. Faller, eupra note 1, at 651. mH id 1B. Ta. at 657. 16. Td. at 658, Th ta.2024) ON LAWAND MORALITY 369 could claim to be ‘scientific’ in an Age of Science.” Hence, “German legal positivism not only banned from legal science any consideration of the moral ends of law . .. it was also indifferent to what I [Fuller] call, the inner morality of law itself” As a result: the attitudes prevailing in the German legal profession were helpful to the Nazis. Hitler did not come to power by a violent revolution. He was Chancellor before he became the Leader. ‘The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the es- tablished order were on ramparts . .. manned by lawyers and judges. These ramparts fell almost without a struggle.” Fuller's conclusion is that there was no real existence of law under the Nazis: “a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system . .. it is not hard to deny it the name of law" Yet, Fuller also insists that the right response ‘was not to appeal to higher law as the alternative to discredited legal positivism: But if you were raised with a goneration that said law is law’ {the slogan of legal positivism), you may feel the only way you can escape one law is to set another off against it, and this perforce must be a ‘higher law’ Hence, these notions of higher law’, which are justifiable cause for alarm, may themselves be a belated fruit of German legal positivism. In short, Fuller blames legal positivism for both the rise of Na- zism and for sparking a misguided overreaction that led to an unfor- tunate revival of ‘higher’ natural law. ‘The goal of Fuller’s legal theory , therefore, to find a middle ground between legal positivism, which weakens fidelity to law by taking away the moral dimension of law, and substantive higher natural law, which also weakens fidelity to law by appealing to transcendent standards that are unreal—like a “brooding, omnipresence in the skies.” In a surprising twist, however, Fuller concludes his analysis of Nazi-era lawlessness with two ironic remarks about the post-war case of the “grudge informer” wife who exploited the situation of phony Nazi ‘laws.’ Regarding the actual punishment of the woman, Fuller says: “L, like Professors Hart. and Radbruch, would have preferred a retro- active statute” but for different reasons: it would “symbolize a sharp break with the past . . . isolating a kind of clean-up operation from 78. Td. a8 659, mI a0. 1d aL Td 82, Id. at 660 (emphasis added)370 CREIGHTON LAW REVIEW (Vol. 57 the normal functioning of the judicial process”—meaning, presumably, that it would wipe from the books the 1934 law and “make it possible to plan more effectively to regain the ideal of fidelity to law its normal meaning” But the most surprising twist is Fuller's seeming endorse- ‘ment of some features of substantive natural law in German law. He concludes with the observation that, in the Nazi-era, the functioning of “ordinary branches of private law” were hardly disrupted by Nazi lawlessness because “ordinary standards of decency” were maintained, proving that “legal morality cannot live when itis severed from a striv- ing toward justice and decency” In other words, procedural natural law ultimately depends on substantive natural law in order to fune- tion, understood here as “justice and decency." ‘This surprising admission leads to a fourth and final point about Fuller's analysis: his reference to law needing standards of “justice and decency” (along with earlier claims about implicit assumptions of hu- man agency and responsible citizenship in procedural law) indicate that the rule of law is not neutral regarding its ends—it relies on some idea of substantive natural law that transcends procedural natural law. While Fuller may seek to keep “good order” within the regime of a liberal-pluralistic political society by opposing the legislation of a specific moral code, he ultimately has an ideal of higher law morality in mind that involves a substantive notion of the good life, which he apparently derives from Aristotle's ideas about moral virtue and the common good. At the beginning of The Morality of Law, he distinguishes two ba- sic types of morality—the “morality of duty” and the “morality of as- piration” and describes them in terms of minimal and maximal rules. ‘The morality of duty refers to the minimal “basic rules without which an ordered society is impossible,” such as prohibitions on murder and theft and the rules of economic exchange and reciprocity among citi- zens as expressed in the Golden Rule or Ten Commandments." By con- trast, the morality of aspiration refers to classical moral virtue—the perfection of character and mind—which Fuller attributes explicitly to ‘The morality of aspiration is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In the morality of as- piration there may be overtones of a notion approaching that of duty. But those overtones are usually muted, as they are in Plato and Aristotle... . [who] recognized that a man might 53, 1d. ot 661 34. Td, 85. Id 86, Ficus, supra note 2, at 5-16.