1 Positivism and Fidelity to Law: A Reply to Professor Hart Author(s): Lon L. Fuller Reviewed work(s): Source: Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 630-672 The Harvard Law Review Association Published by: Stable URL: http://www.jstor.org/stable/1338226 . Accessed: 29/04/2012 17:53 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected] The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Harvard Law Review. http://www.jstor.org
2 POSITIVISM AND FIDELITY TO LAW REPLY A TO PROFESSOR HART Lon L. Fuller * the Rephrasing question of "law and morals" in terms of and "order good order," Professor Fuller criticizes Professor A. H. L. Hart for the ignoring internal "morality of order" to necessary the creation of all law. He then rejects Professor Hart's of theory statutory interpretation the on ground that we seek the objectives entire of provisions than rather the meanings of individual words are which claimed to have "standard instances." PROFESSOR HART has made an enduring contribution to the of literature I if he the issues dis- doubt legal philosophy. will cusses ever again quite assume the form they had before be- ing by touched his analytical powers. His argument is no mere of restatement Bentham, Gray, Austin, and Holmes. Their views receive in his exposition a new clarity a and new depth that are his uniquely own. I must confess that when I first encountered the thoughts of Professor Hart's essay, his argument to seemed to me from suffer a inner deep contradiction. On the one hand, he rejects emphat- ically any confusion of "what is" with "what ought to He be." will tolerate of no law and "merger" what of law conceptions to ought at be, but an Intelli- "intersection." the most antiseptic gible communication on to any subject, he becomes seems imply, if impossible leave we it uncertain whether we are about talking "what or "what to be." Yet it is" was this uncer- ought precisely tainty about it own Professor Hart's made diffi- argument which for cult at first follow of me At times to thread the his thought. he seemed to be saying that the distinction between law and how- and will that continue is morality to something exists, exist, ever It a it. we whether talk about may expresses reality which, or if we like we must it are to avoid we non- not, accept talking At the sense. he to seemed be us that other times, warning reality of in if is distinction mend not that the itself do we and danger our of a and we lose moral ways thinking talking may "precious * Law Stan- Harvard A.B., School. of General Jurisprudence, Professor Carter ford, I924, J.D., I926. 630
3 FIDELITY TO LAW i958] 63I in other It not to is of that law. ideal," fidelity clear, words, in distinction Professor the whether own Hart's between thinking law be" to and morality simply that is or "is," something "ought and in with him create to we should maintain. and that join helping Hart's the were These perplexities had about Professor I argu- I am I on sure when But reflection ment first encountered it. be would his any of criticism essay being as self-contradictory the no reason both is and unfair There unprofitable. why argu- be rested ment of for and a cannot strict law separation morality on intellectual the double ground that this both separation serves in difficulties and If clarity are certain moral there integrity. one to these two bringing relation reasoning lines of proper into those these another, affect also difficulties who the position of views of reject the Gray, Austin, For and Holmes. us of those who find the "positivist" position ourselves rest unacceptable do our on argument double ground that the its intellectual clarity is and specious that its harmful. or are, effects may be, the On one we for of hand, assert Austin's that law, definition example, in violates to the describe. it false reality purports Being fact, cannot serve of "an it Kelsen interest what calls effectively cog- nition." On the other hand, we assert that under condi- some same tions the law of may conception in become dangerous, since human what affairs mistakenly men as accept real tends, by the of their act to very acceptance, become real. is cardinal It a Professor virtue of Hart's argument for that the first time it for way a opens the profitable truly of exchange those views between whose differences on the center distinction between law and there no Hitherto morality. has been real joinder issue between of the opposing On the one camps. side, we en- - counter a of series A definitional fiats. of law is rule that is to - it and and really say, always simply is the a command sov- of a rule laid a ereign, by down judge, of a prediction the future incidence of state a pattern of force, behavior, official When etc. ask what we purpose these definitions serve, we the an- receive no "Why, swer, except to purpose, describe accurately the social reality that corresponds to the word 'law.'" When we "But reply, it doesn't look like that to me," the comes back, answer "Well, it to does me." There matter the to has rest. This state of affairs has most been unsatisfactory for those of us who are convinced that "positivistic" theories have a had on effect the distorting aims of legal philosophy. Our dissatisfac-
4 REVIEW LAW HARVARD [Vol. 7I 632 be- but we the impasse from not merely arose tion confronted, was that All so to us seemed unnecessary. impasse this cause side other on the an acknowledgment was it surmount to needed of images mere not are is" really law "what of definitions its that application the for posts direction but of datum some experience, forthcom- not was this acknowledgment Since energies. human of indeed is There continued. frustrations its and impasse the ing, which a theory by be confronted to than greater frustration no plainly only not it when describe, to prescribes, merely purports that fact the to precisely powers prescriptive special its owes but some debate, this murky Into intentions. prescriptive it disclaims in Kelsen's as break occasionally did light of shafts through, system his whole that repeated, never apparently casual admission, order of the ideal for preference emotional an on rest well might the in general that confess to have I But justice.' of that over has years twenty last the during conducted been has that dispute profitable. very been not new a takes discussion the paper, Hart's Professor with Now, both on now is acknowledged It turn. promising and explicitly and define best can we is how issues chief of the one that sides deserving as something Law, law. to fidelity of ideal the serve a be it cannot achievement; human a represent must loyalty, be- the in discernible pattern a or repetitive of fiat power simple must laws human to owe we respect The officials. state of havior the to accord we the respect from different something be surely our to a claim have bad even If laws, gravitation. of law laws, human of direction some general represent must law then respect, can we that and and understand can we that describe, effort to us to it seems when moment the at even in principle approve mark. its miss argu- Hart's of Professor virtue cardinal it a is I as believe, If, law, to of fidelity the issue the into dispute it that brings ment and to perceive a failure in lies I if say may defect, so, its chief argu- of frame the of this that enlargement implications the accept to less or more me to seems defect This entails. necessarily ment the to most it comes but prominently whole essay, the permeate regime.2 the Nazi and Radbruch of Gustav discussion his in fore RECHT OFFENTLICHES FUR 1 ZEITSCHRIFT 7 Naturrechtes, des Idee Die Kelsen, 1927). (Austria 248 22I, REv. L. HARv. 7I Morals, and Law 2 Separation the of and Positivism Hart, (I958). 593, 6I5-21
5 i958] FIDELITY TO LAW 633 whatever of the actual Without into re- any inquiry workings mained a of under Professor Hart the legal system assumes Nazis, that the that deserved have something must still persisted name of in law a sense that the ideal of to would make meaningful fidelity law. Not that Professor believes the laws should Hart Nazis' have been obeyed. Rather he a to considers that decision disobey them a not presented mere of but question or prudence courage, in a moral which genuine of dilemma ideal the law had to fidelity to be in favor sacrificed of more I fundamental should goals. have unwise it thought to such pass a without in- first judgment quiring with more particularity what "law" under itself meant the Nazi regime. I shall present later my reasons for thinking that Professor Hart is profoundly in his of mistaken estimate the Nazi situation and that he gravely the misinterprets Professor of thought Rad- bruch. But first I to shall turn some definitional preliminary prob- lems in which I what regard as the in central defect Professor Hart's thesis seems immediately apparent. I. THE DEFINITION OF LAW his Throughout Hart Professor essay himself with a aligns gen- eral position which he with associates of the names Bentham, and Gray, Holmes. He Austin, of recognizes, that course, the of conceptions as to these men "what is" law vary considerably, but this he diversity in considers irrelevant apparently his defense of their general school of thought. If the only issue were that of stipulating a meaning for the word "law" that would be conducive to intellectual there clarity, might be much for justification of all treating these men as work- ing in the same direction. Austin, for example, defines law as the command of the highest legislative power, called the sovereign. For on the other Gray, law in hand, consists the rules laid down A for statute not by a judges. is, but Gray, a law, only source of which law, becomes law after it only has been interpreted and our if court. a Now applied by only were object to obtain that from comes our which clarity definitions making explicit and to those then one adhering could strictly definitions, argue plausi- of that the either of "law" will bly conception do. meaning Both avoid to a confusion of morals conceptions and appear and law,
6 71 LAW REVIEW HARVARD [Vol. 634 to they propose meaning what know reader the let writers both "law." word the to attribute our if however, aspect, different very a assumes matter The become may it then for law, to fidelity of ideal the in lies interest the to is assigned position what importance capital of matter a for Confirmation government. of frame general the in judiciary constitu- of rumbling slight the in found be may observation this past the During today. country this in heard be to crisis tional urg- editors to their writing been have newspapers of readers year should we that sincerity, with apparently even and solemnly, ing of a restoration step toward first a as Court Supreme the abolish govern- our for remedy this that unlikely is It of law. rule the but Gray, or Austin of study deep any from derives ills mental view to be expected hardly could it propose who those surely those by law of offered definitions the divergent indifference with mean- Gray's of a it is perversion that said be it If jurists. two contro- for moral present any writings his from extract to ing me to seems it then Court, the of Supreme role the about versies to irrelevant as wrote he what for treating reason equal is there generally. to law of fidelity issue the by defended writers the among of opinion difference Another on their views and Austin and Bentham concerns Hart Professor Bentham the of sovereign. on the power limitations constitutional legisla- the highest preclude might a that constitution considered on For Austin, laws. of kinds certain issuing from power tive power lawmaking highest the on limit legal any hand, other the conscience to What guide an impossibility. and an absurdity was some that might a crisis in two writers these be offered by would that effect the to constitution of our the of out provision arise day with- state any to deprive be used never can power amending the 3 Surely Senate? the in of its representation equal its consent out clarity need we that life of everyday affairs the in not only is it and most but particularly to law, of fidelity the obligation about to has school positivist the If all of trouble. times in urgently may you however that, the is observation times in such offer morals, from different something is always it law, to define choose us. to use of much not are teachings its stands now it as thesis Hart's Professor that then, I suggest, goals the attain he can before that and incomplete essentially is V. art. CONST. 3 U.S.
7 1958] FIDELITY LAW TO 635 a more with he himself seeks he will to concern have closely of of the that will make law definition meaningful obligation to law. fidelity THE II. OF MORALITY DEFINITION of is of the Pro- view those of characteristic It point sharing that is concern to their Hart fessor the primary preserve integrity of of law. the concept have Accordingly, they generally sought a definition but not to precise of at have been state law, pains just to it what is they mean by their exclude definitions. They men for a wall the of like a are defense who building must village, is wish to it what but who know need and they indeed protect, not, know forces those what cannot, walls have turn to invading may back. Austin law from and When Gray distinguish the morality, word stands for almost "morality" indiscriminately con- every standard human which ceivable by conduct be that may judged itself is inner of not law. The voice notions of conscience, right on based and wrong common religious of belief, de- conceptions - fair and cency conditioned play, all culturally prejudices of under are these the grouped together of heading "morality" and from domain of law. For excluded the the are most Professor part in his the Hart tradition follows of predecessors. he When speaks of to seems he in mind all have morality generally sorts of extra- legal notions about to "what ought be," of regardless their sources, or intrinsic pretensions, worth. This is particularly apparent in of of his treatment the problem interpretation, where uncodified of to what notions be are ought viewed as affecting only the of its hard core penumbra law, untouched. leaving the end Toward of the Professor essay, however, Hart's argu- a turn that to takes seems ment from the depart prevailing tenor in This consists his of that us thought. reminding there is such that immoral and as an a there are thing morality many standards that can to be" "what be called of moral.4 ought Let hardly us that the he and grant, says, judge may properly inevitably legis- of a in the late and that penumbra legal this enactment, legisla- default of other must tion be (in any standard) guided the by to what notions of be. this judge's would ought be Still, true even evil most devoted to the where in a the society ends, judge would 4 at 624. 2, note supra Hart,
8 7I REVIEW LAW HARVARD [Vol. 636 that iniquity the with statute the of insufficiencies the supply says grant, also us Let occasion. the for apt most him to seemed times at is there that essay, his of end the toward Hart Professor process, judicial the in discovery like looks that something even clearly more bring to seems principle a restating by judge a when he Again, beginning. the from sought really was what light to highest the to devoted society a in happen could this us, reminds rule evil an of demands implicit the where sin, of refinements a to applied was rule the when discovery for matter a be might formulated. was it when considered consciously not situation who to those addressed warning a be to is this that it take I is Hart Professor law." the into morality more infuse "to wish that morality the adopted is program their if that them reminding his is this If liking. their to be not may infused gets actually been it had wishes one though one, valid a is certainly it point fundamental most the much raises it for more explicitly, made obliquely, made is point the Since argument. whole his of issue to I have shall in commenting it, I misinterpreted have and may questions. and observations summary few a with myself content have may aims evil that assume to seems Hart Professor First, refuse one, ones. for I, good as logic inner and coherence much as or raising, here I am that I realize assumption. that accept to prob- difficult most the into lead that questions dodging, perhaps to I were if competent Even of ethics. the epistemology of lems for the is not place this direction, that in an excursus undertake seem may that a of belief assertion on the rest to have shall I it. affinity more have and goodness coherence that namely, naive, that believe I also this belief, evil. Accepting and than coherence decisions, their and to justify explain are men compelled when good- toward decisions those to be pull will effect generally the Ac- are. there ultimate of goodness standards whatever by ness, in any a I incongruity considerable find these beliefs, cepting common the which in future a that possible envisages conception more a toward case" to case from itself pure "work would law of iniquity. realization perfect weak- a that our in society a serious is there danger if Second, an would permit and morality law between the of partition ening is what the remains, "immoral question morality," of infusion myself I cannot this danger? against effective most protection the by espoused position the in positivist be found to is it believe me to seem writers those For and Hart. Holmes, Gray, Austin,
9 I958] TO FIDELITY LAW 637 to into the a falsify which problem leaves specious un- simplicity issues the real where touched difficult lie. dangers Third, a let bent us his suppose on judge realizing through an that most would decisions citizens objective ordinary regard or to as such a mistaken be evil. Would the judge likely suspend letter would of the Or law"? statute a by openly invoking "higher "law that maxim he is more be take likely behind to the refuge it and that in law" a decision his would such explain way appear to be the itself? demanded by law Hart nor to Fourth, I neither Professor that belong anything in to a said sense could be a be in significant "minority group" This its our and disadvan- has countries. respective advantages tages to to a and one law aspiring of view philosophic government. But to a were we our where suppose both transported country the beliefs and in we, where were anathemas, turn, regarded pre- vailing morality as in thoroughly No evil. this doubt situation we would have fear reason to that the law might be covertly manipu- I lated our doubt if us of to either would be appre- disadvantage; that hensive its injunctions would be aside set an by appeal to a than morality felt higher If we law. that the law itself was our safest would refuge, be not it the because in even most per- verted is regimes there a certain about hesitancy writing cruelties, and intolerances, inhumanities is not And it law? into clear that this itself hesitancy not derives, from a separation of law and but morals, precisely from an identification of law with de- those of mands morality that are the most urgent and the most obvi- ously justifiable, which no man need be ashamed to profess? Fifth, over great areas where the judicial process the functions, of an danger infusion of or at immoral, least unwelcome, morality I does not, suggest, present a real issue. Here the danger is pre- cisely For the in opposite. example, field the of commercial law the British in courts recent years I have, if may say fallen so, into a "law-is-law" formalism that constitutes a kind of belated coun- terrevolution all against that was by accomplished Mansfield.5 The has matter a reached stage approaching crisis as commercial cases are increasingly taken being to arbitration. The chief 5 For an see outstanding example, G. Scammell and Nephew, Ltd. v. Ouston, A.C. 25I I (1940). personally would be [I94I] to inclined under put the same head Victoria Ltd. v. Newman Laundry, Industries, 2 Ltd., K.B. [I949] 528 (C.A.).
10 REVIEW LAW HARVARD 7I [VlOL 638 to take are willing arbitrators is that development for this reason of standards and ordinary commerce of needs account the into repudiates Hart Professor realize that I fairness. commercial theory his think I later why show to I shall try but "formalism," direction.6 that in leads necessarily pre- that question is one many of there in thinking the Sixth, morals, and law of relation in of the discussion any dominates the on or said heard is that everything coloring the to of point Pope's pro- the I by raised of kind question the to refer subject. divorce in judges of Catholic duty the concerning nouncement issues. But grave raise indeed does pronouncement This actions.7 of the on law, a relation between not the does it problem present of con- right on views shared other, generally the and, one hand, dis- and that experience have through duct grown spontaneously pro- two that a between of conflict rather is The issue cussion. you if will, be authoritative; claim to which both of nouncements, of kind issue of this another. When kind one law is it against the of law morality, to the and whole the as problem taken key is that distorted and exchange denatured is so profitable discussion of the this last dispute aspect In mentioning impossible. becomes Professor that intimate not to mean I do "positivism," about I dominated is arriere-pensee; any by Hart's own discussion I indi- have that sure I time am same the At not. is it quite know of the minds in be that issue will the uppermost cated accurately his read essay. as they many to not I do want scant these with remarks, content In resting taken that to in a direction the to opposite seem problem simplify "immoral raised The Hart. Professor morality" by questions by I or Hart Professor either than careful a more deserve exploration these in offered pages. have ORDER LEGAL A OF FOUNDATIONS MORAL THE III. command of "the theory Professor Hart rejects emphatically backed a a command is law which to by simply according law," com- such a that He observes effective. it make to sufficient force and "law a loaded man a with surely be can gun, mand by given 6 608-I2. at 2, note supra Hart, See 7 speech a of (report ed.) city (late col. 4 p. I, 8, Nov. Times, N.Y. See I949, Catholic of the Union of Committee Central the to 7, I949 on November made Lawyers). Italian
11 FIDELITY i958] TO LAW 639 not is the gunman writ situation 8 is no need There large." to on dwell here the the of command inadequacies since theory, Professor Hart has already its revealed and more defects clearly I His than could. is that succinctly conclusion the foundation of a is legal not system coercive but certain "fundamental power, I rules accepted the essential specifying lawmaking procedures." When reached I this in his felt certain I that point Pro- essay, fessor Hart was about to an acknowledge important qualification on his I thesis. confidently that he would expected to on go say I like something insisted have on this: the throughout importance of keeping law sharp distinction and the between The morality. question may now be raised, as to the nature therefore, of these fundamental furnish rules that the framework within which the of law making On place. takes the one hand, seem to they be of not but rules, of law, derive their morality. from They efficacy in a which general turn rests on acceptance, a ultimately per- that are and ception can they right necessary. They be hardly said to law in be sense an of the authoritative pronouncement, their since is function a when to state pronouncement is authorita- tive. On other the in the hand, of the daily functioning legal sys- tem and are they often treated much as applied of rules ordinary law we must confess is are. Here, there then, that can something a of law called be and and to the which "merger" term morality, "intersection" is scarcely appropriate. Instead of such some of pursuing course to thought, my surprise found I Hart Professor leaving completely the untouched nature of the fundamental rules that make law itself and turn- possible, his ing attention to instead what he considers a confusion of on thought the of the of part critics positivism. out Leaving of his account discussion of analytical his jurisprudence, argument runs something as follows: Two views are associated with the of Bentham names and is Austin. One the command theory of law, is an the other on insistence the separation of law and mo- - rality. of Critics in these writers came to time perceive "dimly" - Professor Hart says that the command theory is untenable. a loose of By association ideas they wrongly supposed that in ad- reasons for vancing rejecting command the theory they had also refuted the view that law and morality must be sharply separated. This a was "natural but mistake," plainly a mistake just the same. 8 Hart, supra 2, note at 603. 9 Ibid.
12 LAW HARVARD REVIEW 7I [Vol. 640 that in believing is committed mistake any think not I do too and improperly formulating in error Austin's and Bentham part was morals and law of relation the of problem the simply think I law. of theory command the to led that error larger a of we if clear can be made two errors these between connection the of system to Austin's happened have would what ourselves ask theory. command the abandoned had he if thought help 10 cannot VI and V Lectures Austin's reads who One command to the doggedly hangs he way the by impressed being mind keen own his of pull every that fact the of spite in theory, monarch, a of sovereign case the In it. abandoning toward was of say we shall what But commands. monarch the what is law monarch "lawful" the who tell which succession of "laws" the addressed be it that command a of essence the of is It is? many," "sovereign a of case the in yet inferior, an to a superior by since itself command to seems sovereign the a parliament, say, him- he law a under convicted be may parliament of member a in unlimited be must sovereign The for. voted and drafted self a of su- bounds legal the adjudicate could for who power, legal accept must many" "sovereign a Yet power? lawmaking preme body a Such all. at law make can it before rules of limitation the "cor- in a acting by only issue commands to power the can gain to "agreeably proceeding by only do can it this capacity"; porate the making for accepted and established forms" and modes the su- the them by to delegated power a exercise Judges law. of out to carry commissioned are and power, lawmaking preme a in federal system Yet commands." circuitous or its "direct of conflicts competence resolve must which is courts it the and components. its federation the between ex- of degrees with varying Austin sees problems of All these over and Over them. with mightily he struggles and plicitness, command the of an abandonment of the on edge teeters he again view a as has Hart described Professor of what favor in theory funda- "certain order in of a foundations legal the discerns that the pro- essential lawmaking rules specifying mental accepted be- it not take He does the never takes he Yet plunge. cedures." black-and- the forfeit would it that a sure had insight he cause whole the that was and law morality between distinction white - ob- enduring the one say, may Lectures his indeed, of object 10 I885). ed. (5th I67-34I ON JURISPRUDENCE LECTURES AUSTIN, I
13 i958] FIDELITY TO LAW 641 of a For if law ject made dedicated is life. possible by "fundamen- rules" for Austin -which tal be of must accepted not rules, law, - but what are we of of the positive morality rules that to say enacts the its own to power lawmaking regulate We lawmaking? have election laws, laws allocating legislative representation to of rules specific geographic rules areas, parliamentary procedure, of for the qualification and voters, and laws many other rules nature. do of similar These remain not all of and fixed, them in the shape varying degrees Yet lawmaking how process. are between we to those distinguish rules owe basic that their validity those which and to are acceptance, rules of properly law, valid men consider even them when to or evil be generally ill-advised? are how we In to define other the words, words "fundamental" in Professor "essential" Hart's and own formulation: "certain rules fundamental the accepted essential specifying lawmaking procedure"? for this The solution in Kelsen's problem is theory instructive. in does the fact take Kelsen which over Austin hesitated plunge Kelsen realizes that before too can we long. between distinguish law is and what what is there must an be not, of some acceptance which law is In basic made. procedure by any there legal system fundamental some be must that rule points to unambiguously from come in source which must laws the order to be laws. This rule Kelsen called basic "the In his own norm." words, is norm not it because The basic valid has been created in a certain is but its assumed virtue of its way, validity content. It by is valid, of . like natural law . norm a . . The then, idea of a pure positive of that its natural law, has like law, limitations."1 that Kelsen be noted not will as It Professor speaks, Hart does, "fundamental rules" that of the of of regulate but a making law, no rule or norm. Of is there such single rule in course, single any The notion the of basic modern norm is society. admittedly a a fact. It is a not that embodies the symbol, symbol positivist for clear and some test of quest unambiguous for law, some clean, will that the divide line rules which owe their sharp to validity and those which their owe their source to validity acceptance The intrinsic difficulties Austin and avoided appeal. by sticking Kelsen avoids the command a with fiction which theory, sim- by into form that can be a absorbed plifies reality by positivism. 11 AND LAW THEORY OF KELSEN, GENERAL STATE 40I (3d ed. I949).
14 7I [Vol. REVIEW LAW HARVARD 642 we when result that problems the all of exploration full A that of rules virtue by only possible becomes law that recognize of effect the consideration into drawing require law, would not are a consti- Such constitution. written a of or absence the presence dis- been I have problems the simplifies ways in some tution writ- as a far so In them. complicates ways some in and cussing, re- may it procedure, lawmaking basic defines constitution ten de- effect in a parliament when arise that the perplexities move writ- a under operating legislature a time, same the At itself. fines law- the affect profoundly that statutes enact may constitution ten statutes If these outcome. predictable its and making procedure the within remain may they cunning, sufficient with drafted are it institutions the undermine yet and constitution the of frame of proposal "court-packing" the to If establish. intended was at it unequivocally, this danger illustrate not does 'thirties the consti- of it is fanciful. No written fear that the not least suggests it not be effective requires To be can self-executing. tution enact- for legal ordinary we show deference the respectful merely we to of effort moral give that but convergence willing ments, properly may belief. One an active have we which in principles remains it as so unamended but a long amend constitution, to work amounts this All it. or around it against not it, with work one must ac- written constitution must be a effective to be that saying to law. as but good as law, not just least at provisionally, cepted, fidelity of ideal the do with to these considerations have What and to that do with deal a they have it, I think great they law? to to serve view that of the positivistic essential the incapacity reveal ideal of this a that realization I believe For ideal effectively. what is that and must we precisely which for plan, is something do. to refuses positivism realization a for I mean what planning by illustrate me Let written a are we drafting to law. of ideal Suppose the fidelity of violence of a from a period for emerging just country constitution previous with continuity of legal thread which in any disorder and constitution a such Obviously broken. been has governments simply law be it cannot into legality; itself lift unaided cannot of the that efficacy in mind should We it is. it keep because says make to and that will acceptance work general upon our depend con- the that belief a be general must there secure acceptance this the of The and provisions is good. itself right, necessary, stitution understandable, and simple be kept therefore, should, constitution
15 i958] FIDELITY TO LAW 643 in not only in and also but language, Preambles purpose. other of what which would be is being sought, objec- explanations in an tionable find an ordinary statute, may appropriate place our in constitution. should think our We of as es- constitution a basic for tablishing procedural framework future governmental in action and the of enactment administration laws. Substantive on limitations the of power government should to be mini- a kept mum and to should be confined for a which those generally need be In can so far as generally appreciated. substantive possible, aims should be achieved on the if that procedurally, principle men in to are compelled the act will right way, do they the generally right things. These seem considerations been to have widely ignored in the that constitutions into have come existence since World War II. Not these constitutions a uncommonly host of eco- incorporate and nomic measures of the political would one type ordinarily with associate law. is It statutory that hardly likely these meas- have been into ures written the constitution because they represent aims that are shared. generally One suspects that the reason for their inclusion is the a precisely opposite, fear namely, that they the not be able to survive vicissitudes of would an exer- ordinary of cise the divisions of power. parliamentary Thus, that opinion a normal are of are accompaniment written lawmaking into the that law document makes This itself is possible. obviously a that contains serious procedure for a future dangers of realization ideal the of to law. fidelity I have ventured remarks these the on of making constitutions I not think because can claim they any special profundity, but I to I wished what mean because illustrate by the planning con- that will make it to ditions the realize ideal of possible fidelity within of Even the limits to law. modest my what I purpose, have If said be it would may clearly not wrong. so, be for me to say I am also I whether wrong clearly. will, however, venture to I am I if am that assert wrong, wrong What significantly. disturbs of the school is about it that me not positivism legal only refuses the I sort of have with deal to problems but just discussed, bans on from the of them principle province legal In philosophy. its the to the labels to men concern assign right things do, this school lose all interest to in whether men seems asking are doing the right things.
16 7I REVIEW LAW HARVARD [Vol. 644 ITSELF LAW OF MORALITY THE IV. re- be can essay Hart's Professor by raised issues the of Most order. good and order between the of distinction terms in stated law is order Good simpliciter. order represent to said be may Law men's or or morality, of justice, demands the to corresponds that useful is issue the of rephrasing This be. to ought what of notions un- Hart's of Professor nature ambitious the light to bringing in thing easy no is it that agree all would we for surely dertaking, example, for said, is it When order. from good order to distinguish under obtains which order public that represents law simply that - or- 12 the - Communist or Fascist, democratic, all governments We cemetery. or morgue of a that not certainly is intended der at to be has order an such and order, a functioning mean must stand- some by functioning as considered be to enough good least requires usually order workable that A reminder other. or ard is orderly, too be cannot and therefore the in joints, play some involved be would that the of complexities some to suggest enough and between order distinction a draw to sharp attempt in any order. good in clear- fact can we us let suppose however, time being, the For Even order. of that from of good order the concept separate ly contains itself order of notion the form and abstract unreal this in "mo- this me illustrate Let a element. moral be called may what us Let form. most elementary and its crudest in order" of rality known law only is the word whose monarch, an absolute suppose selfish be utterly to him suppose We further may his subjects. to ad- own his solely his subjects with his relations in seek to and commands, issues time to time from monarch This vantage. punishment and threatening for compliance rewards promising fellow, and forgetful a dissolute He however, is, for disobedience. in have who ascertain to attempt the slightest makes never who he a result As not. have who and his directions followed fact is It ap- disobedience. rewards and loyalty punishes habitually selfish own his even achieve never will monarch this that parent that self-restraint that minimum to is he accept until ready aims his and words his between connection a meaningful create will actions. 12 22 Rule AUSTR. the and I62, State L.J. Planned Law, of The Friedmann, E.g., (I948). 207
17 645 TO FIDELITY LAW I958] a of change undergoes monarch our that suppose now Let us said yesterday he what to attention some pay to and begins heart the to order or bounty to distribute occasion has he today, when, new this of responsibility, strain heads. off the Under of chopping directions in other attention his relaxes monarch our however, his commands. of the phrasing in slothful hopelessly becomes and a inaudible so in uttered are and ambiguous so become orders His wants he idea clear what that his have any never subjects tone his for monarch if our it that is apparent again, Here, do. to them like anything his in realm to create wants advantage selfish own assume and himself he will to have of together law pull a system responsibility. still another im- its own then, contains, order, as merely considered Law, are we if respected be must order of morality This morality. plicit Law law. bad even law, be called can that to create anything Until existence. into this to morality is bring itself powerless by his of po- responsibilities the is face ready to monarch our really futile com- still another issue him to do will no good for it sition, with himself pun- and this threatening self-addressed time mand, his ways. mend he if not does ishment be cannot that law it is true which in sense a twofold is There must be make law to authority law. First of on the built all, it it to the competency accord moral that attitudes by supported to law, external a morality with dealing are claims. we Here not We may alone is But makes enough. this law which possible. norm" desig- "basic in accepted the that our monarchy stipulate We law. of source possible as the only himself monarch the nates the is to accept until our monarch law ready still have cannot law itself. of internal morality moralities and internal external In life nation these a the of of the a deterioration one another; of influence law reciprocally in almost will the other. a deterioration produce one inevitably Lowie related anthropologist that when the are they So closely underlying postulates of ethical accepted generally "the speaks their guarantee- and as sanction ultimate our institutions ... legal have he to smooth their be presumed may 13 functioning," ing of in mind. them both I have internal "the be to called of seems morality law" What make He does Hart. Professor by neglected completely almost 13 THE THE LowIE, ORIGIN OF STATE 113 (1927).
18 LAW HARVARD REVIEW 71 [Vol. 646 which the law," of the in administration "justice of mention brief elevated by whatever of like cases, like treatment the in consists But be defined."' may "like" word the standards perverted or rele- special no having as law of aspect this dismisses quickly he enterprise. to his main vance to neglect his is It mistaken. profoundly is he I believe this In through- him leads that order of morality of a demands the analyze human into itself projecting datum a as law treat to his essay out realize we When striving. human of object an as not and experience becomes it for, be worked must that something is itself order that evil or a bad even system, a legal of existence the that apparent recognize we When degree. of matter a always is system, legal impossible it becomes legal experience, of everyday fact simple this simple a with regime Nazi the by presented the problems dismiss to law." bad was it if even law, was there Nazis the "Under assertion: survived of a much system legal how to inquire instead have We order social of forms of all perversion and debasement the general implications moral and what rule, the Nazi under occurred that to forced citizen for the conscientious had system mutilated this it. under live moral such upheavals to dwell on however, not is necessary, It the positivis- incapable how completely see to regime the Nazi as it ideal professes, moral one the high of is serving tic philosophy be- actually ideal this in serving default Its to of law. fidelity that that problems in the everyday I believe, most apparent, comes moral the of meeting desirous are who earnestly those confront functions have who but responsible a of order, legal demands due. is which toward loyalty order in the very discharge to exten- an had has who trial of a judge case the us suppose Let a whom and before great matters commercial in sive experience a in a As subordinate ju- are tried. commercial disputes many the to follow the of course has our duty judge dicial hierarchy, has Scrutton Our court. imaginary his supreme down by laid law he which court a under live to supreme however, the misfortune, commerce. of needs and of the ways ignorant woefully considers commer- of field in the decisions of court's this his many mind, To judge a If conscientious sense. make do not law cial simply philosophy to the to turn positivistic were in this dilemma caught to no do good It will he certainly could succor expect? what 14 at 623-24. note 2, supra Hart,
19 FIDELITY TO LAW I958] 647 an of to He remind him law. that is he obligation has fidelity of his of the it is this aware since already source and so, painfully it must predicament. if Nor to it will help he that say legislates, his must be "confined contributions be that or "interstitially," 15 molar of to from molecular statement This mode motions." a as to think of be to like not congenial may those who pur- law, directions as posive thing, but dimensions and an the expression of of But I cannot believe that the power. trite state essentially behind this to idea advice lifted the be can by literary eloquence for will offer real it to one point where any help our judge; thing, be for him to know his whether it court may impossible supreme of would his as regard any wide contribution particular or being narrow. a is that distinction core it Nor between and likely penumbra of would be The helpful. predicament our judge derive, may well from not particular from a precedents, but mistaken of conception nature which of the extends over commerce decisions and many in as far his them penetrates So degrees. varying problem arises use of the find particular from he that may well the su- words, court uses the terms of in preme often ordinary commerce senses If to actual foreign business dealings. he interprets those words as a or he executive business accountant would, well may reduce to bound to is a the he precedents shambles. apply logical On the in find other the hand, he great may difficulty discerning exact in the sense court which used in since those supreme his words, of that itself the is a mind sense confusion. product not it that it is Is clear positivism's insistence on precisely a as it is it of rigid law as law separation from ought to be that rend- the of our ers positivistic -philosophy incapable aiding judge? Is not our that clear can it never achieve a also judge satisfactory of his dilemma unless he his views of resolution duty fidelity to a which also his in law embraces context for responsibility making it to law what ought be? I case The have seem supposed may extreme, problem the but it our whole If suggests pervades the system. legal divergence Pac. v. U.S. Southern 15 Co. 244 22I Jensen, dissent- 205, (I9I7) (Holmes, J., v. Storti ing), paraphrasing 6o Commonwealth, I78 N.E. Mass. 549, 554, 2IO, 2II (I90I) in which was held it (Holmes, that C.J.), a statute for providing electrocu- as a means of tion the of death was not inflicting punishment or cruel unusual Massachusetts the Declaration within punishment of MASS. Rights, CONST. pt. First, it because art. XXVI, simply its accomplished object by molecular, rather than molar, motions.
20 HARVARD REVIEW 7I LAW [Vol. 648 views between judge and his supreme court were less dras- of our tic, it would to present his predicament graphical- be difficult more of perplexity his position might the increase. Per- ly, but actually of this a normal accompaniment are the discharge of plexities sort adjudicative function; they perhaps reach their most of any intensity in field of administrative law. poignant the - can One surely not likely case Professor Hart's imagine a in - or mine a judge might hold profound moral country where convictions those the opposite of exactly held, with that were his by equal attachment, court. He might also be con- supreme vinced the precedents he was bound to apply were the direct that of a he considered abhorrent. If such a judge did product morality in the for his dilemma solution surrendering his office, not find might well be driven to a wooden and literal application of he which otherwise could not precedents apply because he was he of the philosophy that animated them. incapable understanding I in that But a doubt this situation would need the help judge find to these his of from positivism legal melancholy pre- escapes I that do think a Nor such dicament. likely predicament to is arise where and law nation a law both within are regarded as good of in human need constant collaborative achievements renewal, still in where are at least as and lawyers "What interested asking law?" as are in is is asking they "What law?" good THE FOR PROBLEM OF RESPECT LAW AND RESTORING V. JUSTICE THE A THAT AFTER OF RESPECTED COLLAPSE REGIME NEITHER of Nazi the the were courts the German After regime collapse It a was with for faced frightful truly predicament. impossible or to as treat whole void to declare the them illegal dictatorship Hit- that had emanated from enactment decision and legal every would dislocations have resulted Intolerable government. ler's all a that occurred over wholesale of such any from outlawing was it other the On twelve of years. hand, equally impossible span effects the of the into new to forward carry every government of name in the committed had been that Nazi perversity law; any with future the indefinite tainted an have would course such poi- Nazism. sons of - af- a which This indeed, pervasive predicament one, was, series a in head law - came to a dramatic of all branches fecting
21 TO LAW FIDELITY 649 i958] had taken of who the informers advantage involving of cases unwanted rid of enemies or Nazi terror spouses. personal to get were decisions judicial all statutes indiscriminately If Nazi and since were they creatures guiltless, despicable these then "law," them- the which Nazis to processes over their turned had victims Yet it was of law. intolerable, especially name by the selves knew these of that the and friends victims, for relatives surviving the their of the while unpunished, objects should go people about of im- after being released years were dead, or were spite just still, simply remained unaccounted or, more painful prisonment, for. does not by any means escape The this situation urgency of expe- is moved to recommend an he Indeed, Professor Hart. of in air dient a certain itself not is despera- that lacking surely have statute criminal would He that retroactive suggests a tion. the This statute the least been solution to problem. objectionable him a and as criminal, would informer, branded have the punished been for regards as having perfectly Hart which an act Professor it.16 he committed when legal the other On without Hart condemns qualifica- Professor hand, tion un- in courts themselves which the decisions judicial those which dertook of the Nazi statutes under to certain declare void help the been convicted. One cannot victims had informer's as issue presented the whether question the this at raising point of Hart is Professor that himself to Surely law. truly fidelity by criminal statute would retroactive a of implication a be it necessary of for the at purposes that statute least, informers against that, to or to the be informers laws as victims their were Nazi applied the void. to this turn as no seems longer question With regarded have to not was once declared be now can be what law whether but do rather the been the or should work, courts dirty who law, the legislature. as Professor himself the are suggests, issues at stake Hart But, in serious risk them a semantic if much too Even to tangle. losing of were one we whole remind should the our- words, question in where an area that are we have a words selves effect powerful should I attitudes. human on to de- a like, undertake therefore, and to advance German my reasons in the why, of courts, fense do not the of decisions their represent abandonment opinion, 16 note 2, at 6I9-20. Hart, supra See
22 HARVARD LAW REVIEW 7I [Vol. 650 under- to In order them. in sees Hart Professor that principle legal move have to shall we decisions those of background the stand witches' of the distance caldron smelling within a little closer shall We Hart. Professor far by so brought been have we than in his ignored problem of the aspect an consider to also have have I what observed Nazis the to which degree the essay, namely, itself. of law morality inner called the assume to seems Hart Professor discussion his Throughout English say, and, law Nazi between difference that only the are ends that to achieve laws their Nazis used the that is law I think, seriously is, This assumption an to odious Englishman. me to it to of seems and acceptance Hart's Professor mistaken, to it purports the problem his to unresponsive discussion render address. generous Nazis took the control of period their Throughout legisla- American to not unknown wholly a device of advantage The irregularities. statute retroactive legal past curing the tures, oc- of a such statute of the curative use dramatic powers most this the "Roehm When after purge." I934, curred on 3, July more over and Nazis than affair seventy was shooting intraparty - - Hitler out," "rubbed avoid saying can hardly one been had law a from his ratifying cabinet procured and to Berlin returned and between measures taken July 30, June the and confirming were names those now of the who mentioning I, without I934, Some time later been have to executed.'7 lawfully considered "the Roehm court the supreme that purge declared during Hitler an not of consisted 18 . . surely . myself," of the German people if he acted one which takes in the of overstatement capacity "the on retroactive enactment legality the conferring seriously taken." measures to never occur anyone it would and America in Now England be cannot it that law of the nature in is "it retroactive," that say to cer- inhibitions constitutional of prohibit may course, although, law a for normal is it would We of kinds say tain retroactivity. it that it be that and ought arguable may to prospectively, operate occult certain a be would but there otherwise, never operate the violates that in assertion retroactivity any unpersuasiveness a to country we have Yet imagine law itself. of nature only very that see in to order are retroactive laws all retroactivity which in 17 ed.). col. (late city 3 P. 3, N.Y. 1934, 4, JulY Times, ed.). city (late col. July Times, N.Y. 18 2 P. 5, See I934, I4,
23 LAW TO FIDELITY 65I i958] we If of internal law. morality the for problem real a presents in his realm to exist monarch allows who absolute an suppose could he that we would of say hardly anarchy, state constant a con- curative statute a a of law enacting by simply regime create date its to had that up on happened everything legality ferring statutes similar to enact every intention an announcing and by in future. months six the of in statutes curative resort past legal to A the increase general mo- in of legal form that deterioration a represents irregularities such of exist. The threat itself cannot which law rality without on law and robs every whole legal system, hangs over the statutes a threat And general surely of significance. of its the some books such use to willing is government a when implied of is sort this mur- execution was simple what into lawful to statute transform a when it der happened. of "secret rumors repeated there were Nazi regime the During Radbruch men- Hart, In by Professor article criticized the laws." in concentration camps killings the wholesale that tions report a there surely Now enactment.'9 secret a "lawful" made were by a Would statute. no than secret be can monstrosity legal greater the war German that the following recommend seriously anyone for laws the among have should searched unpublished courts rights could be citizens' so that Hitler's government left files by a reference to these laws? determined by the to of his laws known The extent make obligation legislator's of a of his morality has that legal problem course, to is, subjects least under discussion at since the Secession active of the been has not been no state that modern probably There is Plebs. in form likely most is this or another. It one problem plagued by with in societies to arise modern adminis- to unpublished respect in Often these are directions. good faith trative regarded quite as issue them who those matters of internal affecting only by But the since an adminis- followed by procedures organization. in its "internal" even trative affect seriously may actions, agency, of the interests and these or the unpublished, citizen, rights often are a for complaint. "secret," subject regulations 19 2 des Die DiE Radbruch, Erneuerung WANDLTUNG Rechts, 9 8, (Germany I947). with the of Nazi discussion to reference the A useful practice publicity given laws und in found will be ARCHIV DES Giese, Verkiindung Gesetzeskraft, 76 OFFENTLICHEN I on this 464, article 47I-72 RECHTS (Germany rely I951). for the remarks that text. in the follow
24 HARVARD LAW REVIEW 7I [Vol. 652 under kept is most societies in what retroactivity, with as But mon- in out broke legal decency of restraints tacit the by control Nazi whole the was loose so Indeed, Hitler. under form strous be should what just know to easy is not it that law of morality unpublished Since law. secret or unpublished an as regarded let- the destroy could law the administering those to instructions inter- outrageous an on it imposing by law published any of ter law every of meaning the which in sense was a there pretation, thousand a that Hitler from order verbal a Even 'secret." was an once at was death to put be camps concentration in prisoners un- done everything of a validation and direction administrative "lawful." it as being der by law of morality the to affronts important most the But exemplified those as forms subtle such no took government Hitler's first the In discussed. have just I outcroppings in bizarre the pos- always was it inconvenient, became forms legal when place, act "to through and them entirely to bypass Nazis sible the for them bring dared who no one was There in streets." the party the In the thus be committed. might outrages account for to whatever to were ready courts always Nazi-dominated second the place, the themselves, Nazis those enacted by even statute, any disregard a that if feared lawyer-like or they convenience their suited this if "above." displeasure incur might interpretation their even to Nazis the of disregard willingness This complete take to Radbruch an factor leading was enactments important own Profes- criticized so in articles by the severely did he the position action the of fair that I do not believe appraisal any Hart. sor this take unless we is courts possible German the of postwar do. to Hart fails Professor as completely into factor account, and in their inconclusive seem generality remarks may These at turn us Let fact. than assertion evidentiary on to more rest Hart.20 Professor case discussed actual to the by then, once, while wife his to a visit short soldier a German paid In I944 he the a orders on day single During travel reassignment. under his of his to wife he something privately conveyed was home, of He Hitler the of disapproval expressed government. opinion other and Hitler leading personali- iuber) geaussert abfdllig (sick not had bad Hitler it was too He also said Nazi the of ties party. on occurred had that the assassination in his end attempt met 20 StDDEUTSCHE Bamberg, Oberlandesgericht, 5 I949, 27, of July Judgment (I95I). REV. L. HARV. I005 64 I950), 207 (Germany JURISTEN-ZEITUNG
25 FIDELITY LAW TO 653 I958] his who 20th after his departure, July wife, Shortly of that year. to turned other "had duty absence military during his on long remarks to his get of him, reported rid wished who men" and to man who "a that observing of leader party, the the local Nazi The live." result a does not deserve to say like thing would that sentence a trial of a and the military by husband was a tribunal of of period short imprisonment, instead a being of death. After of the After the front again. executed, he collapse was sent to for wife the trial regime, brought to the Nazi having procured was on rested the the her defense Her husband. imprisonment of the and Hitler her about her statements to ground husband's that in force. Nazis the then under crime a According- constituted laws her on was when husband she she informed bringing ly, simply a criminal to justice. defense rested on This statutes, one passed in the two I934, in these us first consider the second of Let enact- I938. other a of which creat- more was part legislation ments, comprehensive ing whole series of special wartime a offenses. I reproduce criminal below a of the translation only pertinent section: The following are guilty of destroying the national power persons of resistance be punished by death: Whoever publicly and shall of or incites to a the the service solicits in obligations refusal fulfill of with armed in armed or allied Germany, Germany, forces forces or who publicly seeks to injure otherwise destroy the will of the or German or to allied assert themselves an stalwartly people people enemies.2' against their is It almost that a inconceivable of present-day Germany court would the husband's remarks to hold wife, who was barred his from military duty by her sex, to be a violation of the final catch- all provision this statute, particularly when it is recalled that of the text above was part of a more comprehensive reproduced dealing with such things enactment harboring deserters, escap- as ing duty by self-inflicted military and the like. The injuries, question arises, then, as to the extent to which the interpretive the principles applied courts of Hitler's government should be by in whether the determining husband's remarks accepted in- were deed unlawful. 21 is of a statute The translated passage ? 5 a creating Kriegssonderstrafrecht. 2 Law of REICHSGESETZBLATT Aug. I7, pt. I938, at [I939] I, The I456. translation mine. is
26 HARVARD LAW REVIEW 654 [Vol. 7I becomes This acute question that note applies the we when act to or acts only public remarks utterances, whereas the husband's in were his the privacy of it home. that the own Now appears courts Nazi it be (and should noted with a special we are dealing military court) quite disregarded limitation and generally this act extended to the all or Is Profes- public.22 private utterances, Hart say that sor to prepared meaning of the statute legal this to is in be light of the determined uniform this apparently princi- of judicial interpretation? ple turn Let now to the us statute other Professor upon which in relies Hart that the assuming unlaw- was utterance husband's of This ful. is the act relevant portions the which are of I934, translated below: or makes publicly Whoever (i) statements provocative spiteful or statements which directed disclose a base against, to- disposition the of personalities ward, leading nation or the National the of Workers' toward or German measures taken Socialist in- or Party, and of such stitutions established to a them, by nature under- as in the confidence mine people's political leadership, their be shall punished by imprisonment. in in treated not made be Malicious shall (2) utterances public them manner the as utterances same when the public making person the should or have realized realized public. reach would they of order for the on such Prosecution shall utterances only be (3) of in was directed the Minister utterance the National case Justice; German Socialist a of the National personality against leading shall order of Minister the Workers' Party, Justice prosecution only of Leader. of with the the consent advice the and Representative and with of the advice National Minister The Justice shall, (4) shall who of determine of the the consent Representative Leader, i Section for of of class the to leading personalities belong purposes above.23 is Extended this comment on legislative monstrosity scarcely uncontrolled is it as undermined and overlarded called for, by offers it that note administrative We discretion. first, may only: no the death whatever for justification penalty actually imposed wife's the if that never carried on the husband, though second, out; 22 I950). (Germany 2IO 207, JURISTEN-ZEITUNG SUYDDEUTSCHE See 5 on Attacks Malicious Against of A Law article II is translated passage 23The of Law Uniform, Party the of for the Protection and the and Party State the is translation mine. The I REICHSGESETZBLATT I269. 20, Dec. I934, [I934]
27 I958] FIDELITY TO LAW 655 in on act husband made remarks her informing his "public," there is no such this utterance as statute. a under I thing private should like ask to share the whether he reader can Professor actually Hart's in of the indignation the that, perplexities re- postwar fit the saw construction, to declare this German courts not thing a law. Can it be been argued have it that more seriously would to if beseeming the the had courts judicial process under- postwar taken a of in study "the force interpretative Hit- principles" during ler's rule and had then solemnly those to applied as- "principles" certain the of other this statute? meaning On the would hand, the courts have really if been for law Nazi showing respect they had construed the Nazi their statutes by own, quite different, of standards interpretation? Professor Hart castigates the German not courts and Radbruch, so much for what they believed had be but to because done, they to failed see that they were confronted a dilemma by moral of a sort that would have been immediately to apparent Bentham and Austin. By the simple of dodge a saying, "When is statute evil sufficiently it ceases to be ran law," from they away the problem they should have faced. This criticism is, I believe, without justification. far So as the are courts concerned, matters not certainly would been have helped if, instead of saying, is "This not law," they had said, "This is law but so is it will evil we to refuse apply it." Surely moral confusion reaches its height a when court refuses to apply something it admits to be law, and Professor Hart does not recom- mend any such "facing of the true issue" by the courts them- He selves. would have a preferred retroactive statute. Curiously, was this also the preference of Radbruch.24 But unlike Professor the Hart, German courts and Gustav Radbruch were living parti- in a cipants situation of drastic emergency. The informer prob- lem was a pressing one, and if legal institutions were to be re- in habilitated Germany it would not do to allow the to people be- gin taking the law into their own hands, as might have occurred the while courts were waiting for a statute. As for Gustav Radbruch, it I is, believe, wholly to unjust say that did he not know he was faced with a moral dilemma. His postwar writings repeatedly stress the antinomies confronted in the effort to rebuild decent and orderly government in Germany. 24 io See Die Radbruch, Erneuerung des 2 Rechts, DIE WANDLUNG 8, (Germany I947).
28 HARVARD REVIEW LAW 7I [Vol. 656 own let Radbruch's shall I law, to fidelity of ideal for the As position: his state words light the not in -especially from ourselves conceal not must We - what dictatorship twelve-year the during experiences of our of the in notion contained be can law of rule the for dangers frightful duly to law of quality the refusing in and lawlessness" "statutory statutes.25 enacted know to man a enables positivism legal that not is The situation be- Radbruch's while choice, of problem a difficult faces he when The face. to problem no is there thinking into him deceive liefs we shall How is: Radbruch and Hart Professors dividing issue real which in dilemma the of nature the is What problem? the state caught? we are that say I when Hart Professor to unjust being not am I hope I use to but it sees he as dilemma the of describing way no find I can have we hand, one the On following: the as words such some of quality peculiar the has which law, called datum amoral an a have we hand, other On the it. obey to duty moral creating a are we When decent. and right is think we what do to duty moral have we evil, thoroughly be to believe we statute a by confronted duties. two those between to choose re- in hesitancy no have I then position, positivist the is If this a of formulation verbal the has states it "dilemma" The it. jecting like is It no sense. makes states it problem the but problem, man a food to starving giving between choose to have I saying unfair is think it not I do borogoves. the with mimsy being and co- never any it gives that to say philosophy the to positivistic This to law. of fidelity obligation moral the to meaning herent to unrelated sui as wholly conceived to generis, be seems obligation funda- The human life. of ends extralegal of the ordinary, any severed be - must law that strictly of positivism postulate mental - be- of bridge the any to possibility deny seems morality from obligations. moral law and other to obey the obligation tween on demands their respective can measure principle mediating No worlds. in exist for separate wholly they conscience, Radbruch's to all of postwar I subscribe not would While - - he think I to law" those "higher relating especially views 25 i SfUDDEUTSCHE Recht, Obergesetzliches und Unrecht Gesetzliches Radbruch, RECHTS- in RADBRUCH, (reprinted I946) I07 (Germany I05, JURISTEN-ZEITUNG mine. is translation The I950)). ed. (4th 354 347, PHILOSOPHIE
29 TO FIDELITY LAW 657 I958] much than does Professor Hart, the true na- more saw, clearly the dilemma confronted Germany seeking to rebuild in by of ture to restore had both Germany legal her shattered institutions. these of for neither Though justice. respect and law for respect en- were antinomies the painful without other, be could restored as Radbruch both at in restore once, attempting countered to dilemma as Essentially saw the Radbruch too all saw clearly. on and the order, one hand, those of meeting of the that demands be can de- formula Of course no pat of on order, good the other. unlike of problem. But, legal positiv- from the rived this phrasing no that have demands opposing us with it ism, not present does that simply shout their contradic- with one another, living contact can we seek we As meaningfully a across vacuum. tions order, it no is itself will do us unless good order ourselves that remind can we order our to we As for make seek good, something. good without is itself order, that impossible justice ourselves remind it make in to the and itself must not that lose attempt order we good. POSITIVISM MORAL LEGAL OF THE IMPLICATIONS VI. is there for the reach whether now We ground any question of the Radbruch's belief that a Gustav posi- acceptance general the smoother made in Germany philosophy tivistic pre-Nazi Hart regards Professor Understandably, route dictatorship. to as all this of against positivism. charges most outrageous the Here of indeed controversy, a hazardous area enter upon we where words charges have become commonplace. and ugly ugly no in the this country last issue of legal half century During of ink and adrenalin than the caused more spilling philosophy has in views the "totalitarian" implications that are there assertion of Even the most cautiously phrased Wendell Holmes, Jr. Oliver criticisms of old that from the age of Darwin, Huxley, grand figure and Haeckel of the reader's mind with seem memory to the stir to suggest that perhaps Holmes past acerbities.26 It does no good did not all the of his own this philosophy, for perceive implications is insult for another. Nor does it help one merely to substitute of of one the closest companions recall the dictum of much to - - Holmes' observer that Holmes no imperceptive youth surely 26 529 REV. L. 64 Holmes, Justice of Mr. Positivism The Howe, e.g., See, HARv. (I95').
30 LAW HARVARD REVIEW 7I [Vol. 658 rolled people a half different two and of at least was "composed skin, tight in' one together them keeps way he the and into one, 27 remarkable." is do, they more than any quarreling without waters, jurisprudential all of roughest these upon venturing In Professor man as a moderate so even to see reassured not one is Rad- oar. the of strokes broad pretty some in Hart indulging tem- the assessing in naivete"' extraordinary bruch "an disclosed its ad- that supposing and in in Germany profession own his of per judgment His power.28 to Nazis the helped positivism to herence digested half "only had he that shows matters and on other this he thought mistakenly he liberalism" of message the spiritual is re- A "hysteria"30 of state his countrymen.29 to conveying was German of reorientation wholesome a who see those by vealed in the rendered were as decisions judicial in such thinking legal cases. informer ad- and invective of tools blunter the least at aside put us Let legal whether question to the can we as calmly as ourselves dress or could had, Germany, in preached and practiced as positivism, power. ascent to Hitler's with connection any causal had, have the Nazi before years seventy-five in the that recalled be should It a in Germany achieved had philosophy positivistic the regime Austin praised no other country. in it enjoyed such as standing law within the clarity- international for bringing scholar German a with pleasure reported Gray of positivism.3' restraints producing all were time his of "abjuring German "abler" the jurists that an as cited example.32 and Bergbohm Reckt,"' 'nickt positivisckes whose a scholar was for an is Bergbohm This example, illuminating own its live to make pre- to up German was positivism ambition na- of traces to encounter distressed was vestigial He tensions. In be to in par- positivistic. claiming writings tural-law thinking no- of such recurrence the disturbed was he frequent by ticular, for need moral to a its law owes that perceived efficacy as tions legal a he of that man nature in the is requires it that or order, to never a realized, announced program, Bergbohm etc. order, the from miasmas last these swamp from thinking drive positivistic 27 (I935) 297 OF JAMES WILLIAM AND CHARACTER THOUGHT THE I PERRY, See I869). in James by William written a letter (quoting 28 at 6I7-I8. note 2, supra Hart, 29 6i8. at Id. 30 at 6I9. Id. 31 V). (Lecture ed. 73 ON JURISPRUDENCE LECTURES i885) i (5th AUSTIN, 32 ed. (2d I92I). LAW THE OF SOURCES AND NATURE THE GRAY, 96
31 I958] FIDELITY TO LAW 659 of German natural law.33 jurists tended generally to the regard common Anglo-American a law as and messy unprincipled con- of law and glomerate the was Positivism morals.34 of only theory that law could claim in to "scientific" an of be Science. Dis- Age from this senters view were characterized with that by positivists man fears above modern epithet all "naive." The others: result it was that be could that "to found be reported by I927 of guilty to law adherence natural theories of is kind a social disgrace."35 this To we background the must add the observation that to seem Germans have achieved never curious that ability pos- sessed the to by extent the and some British, of by Americans, holding their logic on short leash. a When defines German law, he means his definition to be If taken a seriously. writer German had hit upon the slogan of American "Law is legal realism, simply the of behavior patterns and judges he state other would officials," not have regarded an as this interesting little conversation-starter. He would have believed it and acted on it. German not banned legal positivism from only science legal any consideration of the moral ends of law, in- but it was also different to what I have called inner the of law itself. morality The German was lawyer therefore peculiarly prepared to accept as "law" anything that called itself by that name, was printed at government expense, and seemed to come "von oaen herab." In of the these light I considerations cannot see either absurdity or in the perversity suggestion that the attitudes prevailing in the German were to legal the profession Nazis. helpful did Hitler not to come power a violent by revolution. He was Chancellor before he the became The Leader. of exploitation legal forms started and became bolder cautiously as power was consolidated. first The attacks on the established order were on ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle. Professor Hart and others have been understandably distressed a to references by in law" "higher of some the decisions concern- ing informers in and Radbruch's postwar writings. I suggest that if German had jurisprudence concerned itself more with the inner of morality law, not it would have been necessary to invoke 33 i BERGBOHM, JURISPRUDENZ UND RECHTSPHILOSOPHIE 355-552 (I892). 34 See, Die e.g., Krisis Heller, der Staatslehre, FUR ARCHIV SOZIALWISSENSCHArT 55 UND SOZIALPOLITIK 289, 309 (Germany I926). 35 Voegelin, Kelsen's Pure Theory of Law, 42 POL. SCI. Q. 268, 269 (I927).
32 7I [Vol. REVIEW LAW HARVARD 66o outrageous more the void declaring in sort of this notion any Nazi statutes. dictatorship a that saying in shocking nothing is there me To depart far can so form legal of tinsel a with itself clothes which itself, law of morality inner the from order, of morality the from itself calling a system When system. legal a be to ceases it that terms of the by judges disregard general a upon predicated is law habitually system this when enforce, to purport they laws the of retroactive by grossest, the even irregularities, legal its cures the in of terror to forays resort to only has it when statutes, even escape to order in challenge, dares one no which streets, - when legality of pretence the by imposed restraints those scant hard not is it dictatorship, a of true become have all things these law. of name the it to deny least, to at for me, in the involved statutes of the invalidity the that I believe such on considerations grounded been have cases could informer genera- a with raised were you But if outlined. as I just have way only the feel may you it, meant and law" is said that tion "law this and it, off against another to set law is one escape can you "higher of notions these Hence law." "higher a be must perforce themselves be a may for alarm, cause which are a justifiable law" legal positivism. fruit of German belated Roman in chiefly is it that this point remarked at be should It considered, is of natural law that the theory writings Catholic men will that enable those for search principles a as simply not can that for as a but something quest live successfully, together to with of law natural law." identification This "a called be higher demanded be by to seems in fact human laws that above law is a an authoritative of the pro- that asserts possibility doctrine any affected areas In law. those of natural demands the of nouncement conflict the as have so far been issued, such pronouncements by to views seems and doctrine Catholic opposing Roman between of two forms Fortunately, between a positivism. conflict me to be such no are which with the area concerned, of lawyers most over are who us of those areas I think In these exist. pronouncements Church to the Catholic can be faith of its grateful adherents not ethics. in tradition rationalistic the alive for kept having in- for the I have solution the that suggested assert not do I own its not have entailed difficulties, par- would cases former think I to But where one of familiar the stop. knowing ticularly mo- in serious deterioration the most that legal demonstrable it
33 I958] FIDELITY LAW TO 66i in- those like law the rality of branches Hitler took under in place in was no deterioration informer the volved cases; comparable It was law. in be to the observed ordinary branches of private in law most those where areas of the ends were odious by ordinary of was itself most of law the standards that decency morality In one have where would flagrantly disregarded. other words, been a it cannot to most evil tempted "This is be one say, so law," could is the of a have "This said usually instead, thing product to it so law that is oblivious system the not entitled of morality to more think law." be there is I called than accident a something for here, the overlapping that suggests cannot legal morality live it and from severed is toward when a striving justice decency. an informer solution for as But like the Profes- actual I, cases, Hart and a sors would retroactive stat- have Radbruch, preferred ute. not for this reason that My this the is is preference most near- of lawful unlawful ly law. what was once way making Rather I see would a a of a such statute as way symbolizing sharp break with as a of of a kind the past, means isolating cleanup operation from the normal of functioning the judicial process. By this it for become isolation the would to return possible judiciary more in rapidly condition a to which the legal demands of morality be could In other it proper given respect. would words, it make to more for possible of plan the effectively ideal regain to fidelity law its normal to meaning. OF THE PROBLEM VII. INTERPRETATION: THE AND THE CORE PENUMBRA It essential that is as clear we be just can as we be the about Hart's doctrine of "the Professor meaning of and the core penum- 36 bra," I the because casual reader believe likely to is misin- a what terpret has Such to he reader is say. to apt that suppose Hart is Professor merely describing that a is something matter of for the in that experience everyday lawyer, namely, in- the rules it is of case the terpretation legal typically not (though uni- situations that there are some which will versally so) seem to fall the while within others will rather be clearly rule, more doubtful. takes thesis no such Hart's Professor form. jejune His extended the of the core and is not a discussion penumbra just complicated are some that cases of while way recognizing hard, others are 36 Hart, note 2, at 6o6-o8. supra
34 7I REVIEW LAW [Vol. HARVARD 662 meaning language about of theory a basis on the Instead, easy. which interpretation judicial theory of a is proposing he generally, for- put been never has it Certainly novel. wholly I is, believe, before. form a uncompromising so in ward tacit add some (if we thesis Hart's Professor understand I As would he qualifications some as well as by it, implied assumptions run would statement a full supply) to his readers wish no doubt that commonly is of interpretation The task follows: as something rule, legal of a words of the individual meaning the of determining par- More a park. from vehicles excluding rule a in "vehicle" like of the range is to determine interpretation task of the ticularly, it to which of things or the aggregate word, a such of reference have a words because only possible is Communication points. relatively remains that meaning" of "core a or instance," "standard appear. may in word which the the context whatever constant, re- to proper be always will in it circumstances, unusual Except instance," "standard its as embracing like "vehicle" a word gard in ordinary all include would it of things aggregate is, that that will the word meaning This law. the without or within contexts, the word In applying purpose. its whatever in legal rule, any have the assumed by role is no creative instance," to "standard its it the law "as is." is He applying simply judge. have words also a however, core, constant to In a addition from will the vary unlike of meaning penumbra core, which, a in tricycle) the (say, question When object context. to context a to assume forced is the this judge area, within falls penumbral an first the for now He must time, role. creative more undertake, Hav- aim. or its in the of purpose the rule light of interpretation the parks, concerning in what was regulation by sought mind ing When as questions be considered to barring tricycles? it ought "is" of an is at least there "intersection" are decided sort this of does the what rule the in "is," since deciding and judge, "ought," to in be" to "it order of what notions his of in ought the so light its out purpose. carry it Hart's as Professor theory have I If interpreted properly The untenable. is it then I think "hard quite the affects core," that its in lies of his defect prob- assumption most theory obvious individual of turn on the of meaning lems typically interpretation ever of the common law a rule no applying judge Surely words. I take as that described such it, (and, procedure any followed even not we do normally Professor indeed, Hart; by prescribed)
35 FIDELITY I958] LAW TO 663 one of his think as Even in of problem the being "interpretation." have to we not of to case statutes, a commonly assign meaning, a or to a but a whole single word, or sentence, paragraph, page not a does have "standard more in- a text. of Surely paragraph constant whatever that context the in which it stance" remains ap- to a kind a seems If pears. that "core statute have of meaning" into can exact too we without a its apply precise inquiry purpose, we one can see this however formulate because is that, the might precise of objective within the this would case statute, come still it. in Even our where situations difficulties seem interpretive to head in up a Hart's to single word, Professor analysis seems me to give no real of account what In or does should happen. his of the illustration "vehicle," he tells us although word this has of a core in meaning that defines all contexts unequivocally a of range he objects embraced us tells never what these by it, If be. rule objects might the from vehicles excluding seems parks to I in easy some apply submit this is because cases, we can see in rule what clearly the at enough "is so that we aiming general" know there no is need to worry about difference the between Fords and If Cadillacs. in some cases we seem to be to able apply the rule without asking what its purpose is, not this is be- cause we can treat a directive if arrangement as had it no purpose. It is rather because, for example, the whether rule be intended to in quiet preserve or the park, to save carefree strollers from in- jury, we know, "without thinking," that a noisy automobile must be excluded. What would Hart if Professor local say some patriots wanted to on a mount in pedestal the park a truck used in World II, War other while the citizens, regarding proposed memorial as an eye- their sore, support stand "no by the vehicle" rule? Does this in truck, perfect fall working within the order, core or the penum- bra? Professor Hart to seems assert that unless words have "stand- ard instances" that remain constant regardless of context, effective communication break would down and it would become impos- 37 to sible a construct of "rules system which have authority." in If context words every took on a unique meaning, to peculiar that the context, whole process of interpretation would become 3 See id. at 607.
36 HARVARD LAW REVIEW 664 [Vol. 7I so that uncertain subjective and a ideal law would the rule of of other In words, meaning. its lose Professor say- Hart seems to be we ing prepared that unless are his of inter- to accept analysis surrender must all we pretation, hope effective mean- of giving an the ideal of fidelity to law. ing to a presents dark pros- This very if one as I pect indeed, believes, cannot his we do, that accept interpretation. do not of theory I gloomy a view of the take so the of of fidelity to future ideal law. An illustration help to test, will Professor Hart's not only theory the of core and the penumbra, its relevance to the ideal of but to fidelity well. Let us law as in suppose the leafing that through upon come the statutes, we shall be following enactment: "It a by a punishable misdemeanor, five dollars, to sleep fine of in railway We have no any station." perceiving gen- in the trouble eral the target nature of toward this statute is aimed. which we are likely at once to Indeed, to call picture of a mind the one an disheveled fashion on of in out spread tramp, ungainly the the station, benches of on passengers their keeping weary and feet This their ears and with filling raucous snores. alcoholic con- instance" the said to vision be "obvious represent fairly may from is far it though templated by the statute, certainly being the the "standard state called instance" of "sleep." physiological us see on the ideal of let how this bears Now example fidelity to are am a men and that two law. I Suppose judge, brought is a who for The first before this statute. me violating passenger arrested was he train. When a for A.M. at was waiting delayed 3 in heard was but an he was sitting upright fashion, orderly by is a man The second be to officer the arresting gently snoring. had and to the and station had a blanket ob- who brought pillow was He down the himself how- for settled viously arrested, night. these a to to chance Which cases of had he before go ever, sleep. If I of the word instance" dis- the "standard presents "sleep"? man and to the and fine decide set second that question, regard of to I I law? a violated have Have the free first, fidelity duty that I if word the in as used this violated duty interpret "sleep" to mean like on oneself "to out a bench statute something spread the to if as or the floor to or spend night, night"? spend of Professor Hart's it is another Testing aspect theory, really without to statute word in a a ever possible interpret knowing statute? we encounter the of the in- aim the Suppose following sentence: "All must be complete improvements promptly reported
37 665 TO LAW FIDELITY i958] if that even to assert seems Hart's theory ..."Professor to the construe before us we can safely this fragment only have we though to its "standard to instance," apply word "improvement" could we before rest of the sentence the know to have we would Yet of surely the penumbra." "problems with intelligently deal the word "improvement" I have quoted, sentence in the truncated "X." the of as meaning symbol as almost devoid is take on meaning will immediately The "improvement" word head "the or, nurse," the words, sentence with fill the if we out that the two meanings Authority," though Planning Town "the that said be It can hardly mind to dissimilar. are radically come accretion kind of penumbral some represent meanings two these And one wonders, parenthet- instance." "standard to word's the would penumbra the and the core of theory the how helpful ically, the to made to is plan- the when in be report whether, deciding be unmort- an includes "improvement" word the authorities, ning value of the market house that lowers a of monstrosity gageable is on which it built. land the other of the I to consider effect think, instructive, It be will "All add we the out improve- to, sentence. Suppose of filling ways Dean "the the . words, must . ." to reported be ments promptly once we as longer seem, Here we no of Division." Graduate the to reach- be the we now in seem to dark; rather, be groping did, the if into orientation better a little achieve an box. We empty ing we and feel the School," Principal of the "to final reads, clause if of the Com- Chairman "to the it ease at becomes, completely in the Primary the of Children on Parents with Relations mittee Division." "improve- word the what deciding in that noted be should It by simply proceed not cases, do all in we these ment" means prac- hospital such in as context, general some the word placing "improve- the so, were If or this education. town planning, tice, in of teacher the be that well as just last the might instance ment" this can rule What ask we ourselves, Rather, pupil. of the as that intended it is evil it good What avert? to be does for? seek What report, the receives who it head nurse" is "the When to promote? to find "Is a shortage there, perhaps, are we ourselves asking, apt so are sufficiently of that who improve patients space, hospital or are a to receive less home ward where will they sent assigned of If than offers more "Dean orientation attention?" "Principal" something the must we know this be because Graduate Division,"
38 7I [Vol. REVIEW LAW HARVARD 666 education and education primary between differences the about min- some have We must level. university postgraduate the on educational two these in which ways the with acquaintance imum encountered problems the with and conducted, are enterprises and "Principal" between distinction any before them, of in both interpretation our affect would Division" Graduate of the "Dean capa- sufficiently be words, in other must, We "improvement." of the drafted who of those position in the ourselves of putting ble light the in is It to be." "ought thought they what know to rule "is." rule the what decide must we that of "ought" this "pre- calls Hart Professor phenomenon the to now Turning what ourselves ask to we have penumbra," with the occupation the by of interpretation process the to is contributed actually situations. "borderline" various supposing of practice common are we unless all, at nothing "Why, say, to seems Hart Professor he what is If this penumbra." the of problems with working unex- it leaves for still one, his a puzzling I view find means, a penumbral with dealing is one if theory, his under why, plained prob- penumbral other about think to useful be it could problem, lems. Professor of interpretation, discussion whole his Throughout of kind procedure. is a cataloguing that it assume to seems Hart who clerk like a is library situation with novel a A faced judge are cases: There book. a new easy shelve to where decide to has under Nations Wealth The under of Bible Religion, the belongs librarian the when hard are there Then cases, etc. Economics, in whether as deciding of creative kind choice, a exercise has to Gulliver's or Politics under Economics, belongs Das Kapital decision the But whether or under Philosophy. Travels Fantasy librarian all the once it is made or is hard, shelve to easy where Pro- with is it so And judges, book the away. to is put to do has the Surely essential in all particulars. to seems Hart say, fessor a than more is procedure. cataloguing something process judicial an he when his pins responsibility not does discharge The judge about to do case. He has on the label something diagnostic apt ex- which this is It will. if responsibility treat larger to you it, it, a on turn never almost single problems interpretative why plains found the have for put- also and generations lawyers why word, "on the not cases borderline penum- only useful, of imaginary ting the to where know in order begins. penumbra but bra," on I made be drawing again can by believe, clear, These points
39 I958] FIDELITY TO LAW 667 our example of the statutory which fragment reads, "All improve- ments must to be promptly . reported . .." con- Whatever the the phrase has cluding not solved may his be, judge problems kind of what is by simply deciding meant. Almost improvement all in the words the of sentence but may require interpretation, most is so this and obviously What of "promptly" "reported." kind of is a "report" a written at contemplated: call the note, in a office, entry record? it hospital How be? Will must specific it "a be to enough say lot or better," "a a house with big bay window"? Now it should in be to apparent that any lawyer interpreting words like no and "improvement," real "prompt," "report," help is obtained by how asking some instance" "standard extralegal define would these much more when words. But, important, these words of are all of a parts structure single thought, they in are with one interaction inter- of another the during process pretation. is an "What it 'improvement'? some- must Well, be can that of a be thing the made for of subject report. So, purposes this statute 'improvement' means really 'reportable improvement.' of kind What must be made? that the 'report' Well, depends upon sort of about information which is desired 'improvement' and the reasons for desiring the information." we When look individual beyond words to a statute the as it becomes how whole, the of apparent putting hypothetical cases assists the interpretative process generally. our By pulling minds in first one in direction, then another, these cases help us to under- stand the fabric of before us. This thought is fabric something seek to so that we discern, we may what know truly it is, but it also is that we something to as create inevitably help we strive with our accordance of (in obligation to fidelity law) to make the statute a workable coherent, whole. I should have all considered these remarks much trite too to if put down here did they not seem be to demanded in an answer the to theory of interpretation proposed by Professor Hart, a he which by theory puts store such he that implies we cannot in law have fidelity to any meaningful sense we unless are pre- be it it. Can to pared accept possible that the positivistic philos- that we ophy demands abandon a view of interpretation which sees as central its not concern, but words, purpose and structure? then If the in stakes so, this battle of schools are indeed high. I am puzzled the by novelty Professor Hart attributes to the
40 7I [Vol. REVIEW LAW HARVARD 668 about example Wittgenstein's from draw to tried once I lessons the show to trying simply I was children.38 to game a teaching try- was I done. be to ought what deciding in plays role reflection what about decisions that as points simple to such make ing of an exchange by reflection, by improved are done be to ought imagining by and problems, same the sharing with others views that assuming was I presented. be might that situations various to sharpen serve might measures familiar and innocent these of all prod- the and that do, to trying were we what of our perception choice apt more a merely not be, might process whole the of uct itself. end the of clarification a but sought, end the for of means some- had bench the of English famous judge that had a I thought work- as law common the of spoke he when mind in this like thing is no longer of the If process view this judicial "itself 39 pure." ing what- say can that, I only its origin, of country the in entertained may British reputation Lord Mansfield's of the vicissitudes ever heroic a in this figure for us country remain will always he be, of jurisprudence. Hart's of Professor the deficiencies theory here stressed have I however, I believe, affects interpretation. that judicial as theory mistaken a from and result ultimately defects deeper its go that Hart Professor of the generally. language about meaning theory of theory "the pointer be called to what subscribe to may seems the on effect the or minimizes a which ignores 40 theory meaning," (1956). 700 697, 38 PHILOS. J. 53 Law, Natural and Purpose Human Fuller, I744) 26 (Ch. 22-23 I5, Rep. Eng. Atk. i 33, 2I, v. Barker, Omychund 3 Mansfield): Lord later Murray, of Solicitor-General (argument all in take can seldom statute a . . . very at arise not once; do occasions All from drawn rules works that by pure itself common the therefore law, cases, parliament. of act an to reason this for superior is of justice, fountain the essay the in be to seems that implied theory linguistic the of speaking am 40 I Definition brilliant address, Hart's inaugural Professor In here. discussion under point most the important REV. 37 (I954), L.Q. 70 in Jurisprudence, Theory and by defined be cannot and person" "legal "right," "rule," like terms that is made be can but external only in the world, actions or things correspondent to pointing as the in just them system, larger by function performed the of terms in understood a least at without out!" having "Y're ruling, umpire's the understand cannot one the in the in presented analysis Even of baseball. rules the with familiarity general of the that dependence think to seems Hart Professor however, address, inaugural systems, and formal of explicit a is peculiarity context and function on meaning he what that to not seems He recognize a system. legal or a game of those like over- and informal the of countless true is also systems explicit about say to has systematic These whole. a implicit as language through run that systems lapping mean- the once at understand to us enable often language in elements structural or regard the in as "Experts statement, novel sense, a in wholly used word a of ing
41 LAW I958] FIDELITY TO 669 the of and structure meaning words of of the speaker's purpose embraces language. the Characteristically, this school of thought notion of of "common usage." is that it The reason is, course, the to the with only it can seem aid of this notion attain inert that of datum it a isolated from the effects meaning seeks, meaning of and purpose structure. It not do to would an attempt here into extended excursus lin- guistic I theory. to shall have content with myself remarking of the that theory in Professor meaning implied Hart's essay been me men seems to have to three who rejected the at stand by modern head of in very developments logical analysis: Wittgen- and stein, Whitehead. Russell, Philo- Wittgenstein's posthumous of sophical a sort constitutes Investigations running commentary the on way words shift and their transform as meanings they move from context to Russell context. the of repudiates cult "(common usage," and asks the of what "instance" word "word" itself can be that not does given some intention imply in specific the use it.4" of Whitehead explains the appeal that "the deceptive of the identity for repeated word" has modern philosophers; only some constant as the by assuming "core linguistic mean- of (such can be for ing") of claimed validity procedures of which logic move necessity the from word to one context another.42 THE VIII. MORAL AND EMOTIONAL FOUNDATIONS OF POSITIVISM If we ignore the specific of theories law associated with the positivistic I philosophy, believe can we say that the dominant of tone is positivism set by a fear of a purposive interpretation law of and legal at institutions, or least a fear by that an such interpretation I may be too pushed far. think one can find con- of traces firmatory this fear in all of those as classified "posi- tivists" by Professor Hart, with the outstanding of exception the English Channel as the most difficult in the In swim world." the now essay being discussed, Professor Hart seems to a that nowhere rule or recognize statute has a structural or systematic quality that reflects in itself some measure into the meaning of every principal in term it. 41 The RUSSELL, Cult "Common of in PORTRAITS Usage," FROM MEMORY AND OTHER ESSAYS i66, I70-7, (1956). 42 WHITEHEAD, Analysis of in ESSAYS Meaning, IN SCIENCE AND PHILOSOPHY I22, I27 (I947).
42 HARVARD LAW REVIEW 71 [Vol. 670 was worlds and who a case apart all things who is in Bentham, ethical positivism. be called that could from anything removed purpose the of this fear us that of that Now belief hold, many think- into us mislead should not positivism, in morbid turn a takes reflects it or that justification, wholly without fear the is ing that of society. organization the in problem no significant the accept if we do not impossible become can law to Fidelity responsibil- as all purposive, (themselves responsibilities broader of interpretation with a purposive that be) go must and are ities run as that might of reasoning a course can imagine One law. its is What not be sold. shall absinthe says statute This follows: absinthe knows, Now, as everyone health. promote To purpose? inter- Therefore, beverage. and beneficial wholesome, a is sound, it to I construe its purpose, of in the light statute the preting most healthful of and of that consumption direct sale a general absinthe. beverages, in inter- a purposive implicit is of this thing If sort risk of the reduce to or it, to eliminate we take can measures what pretation, is One just "Why, say, to to tempted bearable it proportions? an be But this would and evasion, sense." common ordinary use the we we know to that answer, amount although would saying have I shall fear I To a better is. it what answer, give cannot say Hart so Professor of standards those from clarity high depart to to I shall have so say and exemplifies. generally prizes rightly A or statute the structure. of in a lies answer the concept that of its virtue or rela- either law by explicitly, has, rule common of a called be structural that other with may something tion rules, of in mind "the we when have we what is This speak integrity. have who inten- men it is we know the of intent though statute," struc- that of limits the on Within words not and tions paper. role a creative but demands not law to only permits fidelity ture, it him not does structure that but permit the beyond judge, from own its I of which the structure Of speak presents to course, go. sur- case in this the But the of penumbra penumbra." "problems and a that has integrity meaning something rounds real, something words of that a collocation not It is own. gets its of purposeless from loan on usage. lay its meaning it that Hart's of virtues Professor of the one essay is It great law. to of ideal for the concern fidelity makes explicit positivism's reason basic the that I cannot why I Yet prove, though believe, lead it is not that a fears may interpretation purposive positivism
43 LAW TO FIDELITY I958] 67I direc- far in the it us to that too but anarchy, may push opposite too a threat carried a in It tion. sees interpretation, purposive far, human and freedom human dignity. to man a that I am I mean illustrate by supposing Let me what Protestant a of ardent in beliefs without community religious living unlawful it in this makes A statute faith. Christian community I find an this statute me for to on Sunday. play golf annoyance I feel is But the restraints its and reluctantly. accept annoyance it I that from experience greatly not different might though if, from me failure on a to lawful were play power Sunday, prevented in course. the I use the would taking normally streetcar reaching In of is just one the those things." vernacular, "it if matter assumes different whole a the a What complexion me to attend statute worse kneel and to or, compels church, still, affront a to I Here direct prayers! may feel recite integrity my the of as human Yet well a both statutes purpose being. may be attendance. The church to even seem difference increase may the its end statute seeks first to and that be slyly by indirection, in Yet is a the and this case which surely honestly second, openly. has and in its indirection its virtues human honesty heavy price dignity. I that fears that believe a too and unin- Now positivism explicit in of hibited may well terms interpretation purpose the push first of kind of in direction If the statute second. the is a this basic the concern that philosophy, positivistic underlying philosophy real a with however its is dealing inept problem, response to the be. seem to this For of problem problem may the impressed pur- in our one a is crucial thinks of One the society. pose obligation "in faith" the to National good by Labor imposed bargain Rela- the remark One recalls that tions to Act.43 a punish is criminal to than affront his to an of reform and dignity less him. improve to the mind: comes The preamble statutory increasing use made the of it, its that should significance wisdom, legislative be ac- in to it The corded salute flag interpretation. judicial cases44 I to occur of recall will, the everyone. myself course, splendid the Professor von of that analysis things Hippel by funda- were about and his conclusion that the Nazism, wrong mentally grossest 6i Stat. added ? 43 8(d), U.S.C. by I42 (I947), 29 ? I58(d) see NLRA (I952); Stat. 6i as ?? ?? 8(a)(5), (b)(3), amended, I4I 29 (I947), U.S.C. I58(a)(5), (I952). (b)(3) v. Dist. School U.S. 44 Minersville Gobitis, 3IO 586 overruled, West (I940), U.S. v. of Educ. Bd. State Virginia 3I9 Barnette, 624 (i943).
44 HARVARD REVIEW LAW 7I [Vol. 672 putting the like acts, of coercing that was perversities Nazi of all only have meaning that Hitler!" "Heil saying, and flags of out when a meaning have accurately, more or, voluntarily, done when with them of association an on parasitic wholly is that coerced expressions.4 voluntary past acute more becoming undoubtedly are sort this of Questions economic to respect with role active more a assumes the state as ex- organized be can activity economic significant No activity. requires production economic its nature By "don'ts." by clusively reason, special is there field economic In the effort. a co-operative trans- be will do" not may "'This you that to fear therefore, - all As we but willingly." do must you "This into formed transfor- this for effecting opportunity tempting most the know, practice in administrative is called what by is presented mation a of threat negative the in which conference," "the prehearing induce to its administrators used by be may sanctions statute's attitude." "the as all in proper conscience, good what regard, they address can when philosophy the to legal day look forward I them not and this of exploit simply issues to sort, earnestly itself Professor taken. already a of favor in position score points to discussion, a for such the to me way to seems open essay Hart's that a pretense the from philosophy positivistic eliminates for it of I it. course, touched issue mean, by obscured every hitherto has is That of why ethical the positivism. neutrality of pretense the paragraph-by- my almost despite that, all sincerity in I say can I his in essay, views the expressed with disagreement paragraph to contribution an legal made has Hart enduring Professor believe philosophy. WAR ALS 45 HERRSCHAFTSORDNUNG DIE HIPPEL, VON NATIONALSOZIAIJSTISCHE (I946). 6-7 LEHRE UND NUNG
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