1. The Internal Morality of Law

1
1. The Internal Morality of Law

• Professor Hart seems to assume that evil aims
  may have as much coherence and inner logic as
  good ones. I, for one, refuse to accept that
  assumption.
• coherence and goodness have more affinity than
  coherence and evil.
  
• when men are compelled to explain and justify
  their decisions, the effect will generally be to
  pull those decisions toward goodness, by whatever
  standards of ultimate goodness there are. FTL 636

2
A functioning legal order

• When it is saidthat all law simply represents
  that public order which obtains under all
  governmentswe must mean a functioning order, and
  such an order has to be at least good enough to
  be considered as functioning by some standard or
  other FTL 644

3
Incoherent application of the law

• Let us suppose an absolute monarch who from
  time to time issues commands, promising rewards
  for compliance and threatening punishment for
  disobedience. He is, however, a dissolute and
  forgetful fellow, who never makes the slightest
  attempt to ascertain who have in fact followed
  his directions and who have not. As a result he
  habitually punishes loyalty and rewards
  disobedience. FTL 644
• Moral of the story Law requires some degree of
  consistency of application

4
Unclear and incoherent norms

• Now imagine that the absolute monarch becomes
  hopelessly slothful in the phrasing of his
  commands. His orders become so ambiguous and are
  uttered in so inaudible a tone that his subjects
  never have any clear idea what he wants them to
  do. Here, again, it is apparent that if our
  monarchwants to create in his realm anything
  like a system of law he will have to pull himself
  together and assume another responsibility.
• Moral of the story legal norms have to be
  sufficiently clear and coherent that people can
  successfully use them to guide their behavior

5
Retroactive and secret norms

• A system of entirely retroactive norms would not
  allow people to guide their behavior by the law
  (the law valid for T1 would never be known until
  T2). FTL 649f
• A system of entirely secret norms would also make
  it impossible for citizens to follow the law. FTL
  651f

6
Whats the point?

• That some of the Nazi laws were so defective as
  laws (that is, in terms of the internal
  morality of law) that we do not need to appeal
  to higher law, or to a dismissive judgment, in
  order to say that they were not valid law.

7
Les Greens criticism

• these virtues are minor there is little to be
  said in favour of a clear, consistent,
  prospective, public and impartially administered
  system of racial segregation, for example.
• Les Green, Legal Positivism
• http//plato.stanford.edu/entries/legal-positivism
  /
  

8
2. Fullers criticisms of Harts view of the
Nazi cases

9
The problem of Nazi law in the postwar situation

• It was impossible for courts to simply treat as
  void every decision and enactment that had
  emanated from Hitlers government FTL 648
  
• On the other hand, it was equally impossible to
  carry forward into the new government the effects
  of every Nazi perversity that had been committed
  in the name of law. FTL 648
• Note that many applications of tort, contract,
  property, and contract law during the Nazi era
  were perfectly acceptable under law that predated
  the Nazis.

10
The informing wife

• In 1944 a German soldier paid a short visit to
  his wife and severely criticized Hitler and other
  Nazi leaders. After his departure his wife
  reported his remarks to the local leader of the
  Nazi party. The soldier was tried by a military
  tribunal and sentenced to death, but was spared
  and sent back to the front. After the war the
  informing wife was tried for having procured the
  imprisonment of her husband. Her defence rested
  on the ground that her husbands statements to
  her about Hitler and the Nazis constituted a
  crime under the laws then in force. FTL 653

11
What Hart says about the informing wife

• The wife was prosecutedfor an offense which we
  would describe as illegally depriving a person of
  his freedom. This was punishable as a crime
  under the German Criminal Code of 1871 which had
  remained in force continuously since its
  enactment. The wife pleaded that her husbands
  imprisonment was pursuant to the Nazi statutes
  and hence that she had committed no crime.
  SOLAM 619

12
What does this have to do with positivism and
natural law?

• An advocate of natural law might say that deeply
  unjust Nazi laws and decisions were not fully
  legal and hence did not need to be taken
  seriously in the postwar situation.
• An advocate of positivism might say that deeply
  unjust Nazi laws and decisions were in fact valid
  law (even though a decent citizen would have
  violated them). This seems to be Harts view.
  Professor Hart condemns without qualification
  those judicial decisions in which the courts
  themselves undertook to declare void certain of
  the Nazi statutes under which the informers
  victims had been convicted. FTL 649

13
What Hart finds objectionable

• The court of appeal to which the case
  ultimately came held that the wife was guilty of
  procuring the deprivation of her husbands
  liberty by denouncing him to the German courts,
  even though he had been sentenced by a court for
  having violated a statute, since, to quote the
  words of the court, the statute was contrary to
  the sound conscience and sense of justice of all
  decent human beings.
• SOLAM 619
• the special importance of these cases is that
  the persons accused of these crimes claimed that
  what they had done was not illegal under the laws
  in force at the time. This plea was met with
  the reply that the laws upon which they relied
  were invalid as contravening the fundamental
  principles of morality.
• SOLAM 618

14
Harts proposal for punishing the informing wife

• Many of us might applaud the objectivethat of
  punishing a woman for an outrageously immoral
  actbut this was secured only by declaring a
  statute established since 1934 not to have the
  force of law, and at least the wisdom of this
  course must be doubted. There were, of course
  two other choices. One was to let the woman go
  unpunished. The other was to face the fact that
  if the woman were to be punished it must be
  pursuant to the introduction of a frankly
  retrospective law and with a full consciousness
  of what was sacrificed in securing her punishment
  in this way.Odious as retrospective criminal
  legislation and punishment may be, to have
  pursued it openly in this casewould have made
  plain that in punishing the woman a choice had to
  be made between two evils, that of leaving her
  unpunishment and that of sacrificing a very
  precious principle of morality endorsed by most
  legal systems. SOLAM 619

15
Fuller on Whats Wrong with Harts view of the
Nazi cases (1)

• We do not need to appeal to higher law to see the
  problems with key parts of Nazi law. Appeal to
  the internal morality of law is sufficient.
  
• It is not implausible to see some of the Nazi
  statutes as never valid. I should like to ask
  the reader whether he can actually share
  Professor Harts indignation that, in the
  perplexities of the postwar reconstruction, the
  German courts saw fit to declare this thing not a
  law. FTL 655

16
Fuller on whats wrong with Harts view of the
Nazi cases (2)

• The situation is not that legal positivism
  enables a man to know when he faces a difficult
  problem of choice, while Radbruchs beliefs
  deceive him into thinking that there is no
  problem to face. The real issue dividing
  Professors Hart and Radbruch is How shall we
  state the problem? What is the nature of the
  dilemma in which we are caught?
• I do not think it is unfair to the positivistic
  philosophy that it never gives any coherent
  meaning to the moral obligation of fidelity to
  law. FTL 656

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3. Criticisms of Harts theory of judicial
interpretation

• Fullers complaintfair or not--is that Harts
  account in terms of core and penumbra neglects
  the general purpose of the statute and the
  context in which a word or sentence is used

18
The importance of context

• What would Professor Hart say if some local
  patriots wanted to mount on a pedestal in the
  park a truck used in World War II? Does this
  truck, in perfect working order, fall within the
  core or the penumbra? FTL 663
• Should we say that the statute meant that
  vehicles should not be driven (as opposed to
  displayed) in the park? To answer this we may
  have to guess its purpose.
• Should we say that the statute implicitly
  contained an exception for maintenance vehicles,
  construction vehicles, emergency vehicles, and
  the like?

19
Sleeping in the railway station

• Compare two cases under a statue making sleeping
  in a railway station a misdemeanor
  
• The first is a passenger who was waiting at 3
  A.M. for a delayed train. When he was arrested
  he was sitting upright in an orderly fashion, but
  was heard by the arresting officer to be gently
  snoring.
• The second is a man who had brought a blanket
  and pillow to the station and had obviously
  settled himself down for the night. He was
  arrested, however, before he had a chance to go
  to sleep. FTL 664
• What lessons should we draw from this lovely
  parable?

20
Fuller notes that the focus of interpretation is
rarely a single word

• Justice Scalia The statute at issue provided
  for an increased jail term, if during and in
  relation to a drug trafficking crime, the
  defendant usesa firearm. The defendant in
  this case had sought to purchase a quantity of
  cocaine and what he had offered to give in
  exchange for the cocaine was an unloaded firearm,
  wjwehich he showed to the drug-seller. A Matter
  of Interpretation, 23-24.
• A point not explicitly made by Fuller is that
  statutes must often be interpreted in light of
  competing considerations. Recall Riggs v. Palmer.

21
Is Fuller fair to Hart?

• Hart wrote Austinwas very much alive to the
  character of language, to its vagueness or open
  character he thought that in the penumbral
  situation judges must necessarily legislate,
  andhe berated the common-law judges for
  legislating feebly and timidly and for blindly
  relying on real or fancied analogies with past
  cases instead of adapting their decisions to the
  growing needs of society as revealed by the moral
  standard of utility.
• SOLAM 609

22
The theory of meaning

• Professor Hart seems to subscribe toa theory
  which ignores or minimizes the effect on the
  meaning of words of the speakers purpose and the
  structure of language. FTL 669
• Useful distinctions
• Language meaning--the dictionary meaning of a
  word. Most words are ambiguous in the sense of
  having several meanings
  
• The speech act--stating, questioning,
  commanding, etc. Irony might be treated here
  
• The utterance meaningthe meaning of a sentence
  containing the word as it was used to communicate
  some message by a particular speaker at a certain
  time, in a particular context, and with some
  purpose.
• The sentence and paragraphdoes the next
  sentence qualify the sentence or suggest
  competing considerations? Does the sentence
  structure make the word ambiguous. E.g., If you
  go to war you will destroy a great nation.
• The evolved legal meaning as it emerges from
  previous decisions and interpretations. This
  often modifies the utterance meaning.