In April 1957, the English legal philosopher H.L.A. Hart, Professor of Jurisprudence at Oxford, delivered the annual Oliver Wendell Holmes Lecture at Harvard Law School. Hart’s topic was “Positivism and the Separation of Law and Morals,” and he intended his lecture, offered at a “law school deeply influenced by the [legal] realism of Holmes and the sociological jurisprudence of Roscoe Pound,” to be provocative as well as informative. The focus of Hart’s lecture was a core tenet of traditional legal positivism—that there is no necessary connection between law and morality. This was a proposition that would later be defended in detail in Hart’s masterwork, The Concept of Law, published in 1961. Hart’s lecture sought to explain, clarify, and elaborate the positivist account of the relation between law and morality, while at the same time defending legal positivism against the accusation that it was complicitly silent on the evil of oppressive legal regimes.
Volume 83, Number 4
This Article explores a decision by a German postwar court—the Case of the Grudge Informer—which was central to the 1958 debate between H.L.A. Hart and Lon L. Fuller. The author argues that Fuller’s presentation of the problem in the case is better than Hart’s both as a descriptive matter and as a matter of promoting a morally responsible resolution—not least because Hart’s method of candor falls short of illuminating the complexities inherent in such cases. In particular, Hart’s positivist conception of law does not appreciate how judges in such cases have to contend with a connection between the doctrinal level and the fundamental level. At the former, judges have to resolve issues of substantive law such as the issues of criminal law in the Grudge Informer Case. At the latter, judges confront the question of what Fuller called their “ideal of fidelity to law,” since they are faced with questions about what legality—the principles of the rule of law—requires. The confrontation between such ideals is not, as Hart suggested, one that takes place in an extralegal political space. Rather, it is firmly within the scope of both law and the philosophy of law.
H.L.A Hart made a famous claim that legal positivism somehow involves a “separation of law and morals.” This Article seeks to clarify and assess this claim, contending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connections between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually significant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.
Philsophy, Political Morality, and History: Explaining the Enduring Resonance of the Hart-Fuller Debate
This Article argues that the historical, moral, and political dimensions of the Hart-Fuller debate deserve much credit for its continuing appeal and should prompt a reconsideration of Hart’s own claims about the universality of analytical jurisprudence. The debate illuminates the sense in which conceptual analysis needs to be contextualized and, in so doing, demonstrates the importance of clarity and rigor in legal theorizing. Moreover, the debate’s power to speak to us today is a product of its connection with pressing political issues. In analyzing the postwar development of international criminal law, this Article argues that Hart’s modest realism, pitched against Fuller’s more ambitious optimism, speaks to us in compelling ways.
With a clear and compelling ethical vision, H.L.A. Hart attempts to persuade us that it would be better to see law the positivist way. Much of Lon Fuller’s reply can be read as an equally compelling case for seeing law another way. Both articles are rewarding precisely because they bring to the fore the ethical and political stakes of the debate over the concept of law. The problem is that while these instrumental arguments do a lot to explain why philosophers have tended to be so invested in either positivism or nonpositivism, they have no chance of changing our social world such that either view can be said to be true.
The 1958 debate between Lon Fuller and H.L.A. Hart in the pages of the Harvard Law Review is one of the landmarks of modern jurisprudence. Much of the debate was about the relative merits of Hart’s version of legal positivism and Fuller’s brand of natural law theory, but the debate also contained the memorable controversy over the fictional rule prohibiting vehicles from the park. Hart used the example to maintain that rules have a core of clear applications surrounded by a penumbra of uncertainty, but Fuller offered a counterexample to insist that the language of a rule, by itself, could never determine any legal outcome. At one level, therefore, the debate was about the relative importance of language and purpose in applying a general rule to a particular issue. At a deeper level, however, the debate was about the formality of law and about the possibility of varying commitments to formality in different legal systems. By examining this debate, and by largely removing it from the surrounding controversy over positivism and natural law, we can gain valuable insights about legal rules, legal interpretation, and the nature of legal language.
Lon Fuller, in his response to H.L.A. Hart’s 1958 Holmes Lecture and elsewhere, argued that principles of legality—formal principles requiring, for example, that laws be clear, general, and prospective—constitute the “internal morality of law.” This Article contends that Hart never offered a clear response. Fuller’s claim supposes that observance of the principles of legality is both fundamental to law and inherently moral. In different writings, Hart seems variously to affirm and to deny that legality is a necessary criterion for the existence of law. Likewise, he sometimes suggests and elsewhere scorns the idea that legality has moral significance. This Article proposes that Hart’s apparent inconsistency might actually reflect the complexity of the terms. Some degree of legality might be a prerequisite of law, while some failures of legality might not condemn it. Principles of legality might have contingent rather than inherent moral value, might have moral value that is severable from their legal value, or might have both positive and negative moral effect. The Article argues, furthermore, that even the conclusion Hart strains to avoid— that legality inevitably links morality and law—is compatible with Hart’s positivism and opens a promising field for positivist jurisprudence.
This Article offers a new reading of Hart’s classic Positivism and the Separation of Law and Morals by rethinking the form of positivism Hart was putting forward. Hart’s separationism was not principally intended as a speculative proposition about the conceptual distinctness of law and morality but as a practical maxim about the need to distinguish what the law is from what the law ought to be. Hart believed that legal interpreters must display truthfulness or veracity about the law, being candid about what it actually says and how far it goes, rather than gilding the content of the law by ascribing to it what one wishes it said. “Practical positivism,” as Professor Zipursky calls it, was Hart’s antidote to the approaches of legal realism and natural law theory gaining ascendancy in American legal theory in the 1950s. Despite all of their differences, both realists and natural law theorists like Fuller treated the task of saying what the law is as inviting decision makers to make the law what it ought to be—“practical perfectionism,” in Zipursky’s terminology. Hart’s great lecture asserted, above all, that practical positivism was superior to practical perfectionism. Drawing upon a variety of contemporary examples, the Article suggests that the practical perfectionism that concerned Hart in 1958 is alive and well today among both conservatives and progressives—on the bench, at the bar, and in the legal academy. Conversely, originalists, textualists, and pragmatic conceptualists are among today’s descendants of practical positivists. The last half of the Article sketches a contemporary defense of practical positivism, adapting a Legal Coherentist framework to bolster Hart’s work against Ronald Dworkin’s criticisms.
The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work
The resolution of federal congressional election contests implicates a tension between states’ Article I, Section 4 power to conduct elections for federal office and Congress’s Article I, Section 5 power to decide the elections of its members. The seminal Supreme Court decision on this issue, Roudebush v. Hartke, held that state courts may order administrative recounts in congressional elections because these decisions require state courts only to engage in “nonjudicial functions” and do not impinge on Congress’s ability to make independent and final decisions in these contests. The Roudebush decision has, in some cases, been interpreted expansively, permitting electoral losers to seek substantive post-election remedies (such as new elections) simultaneously in state courts and in Congress. This “Congress-and-courts” approach to deciding congressional election contests is problematic in light of constitutional considerations, federalism concerns, and the values underlying election contest resolution. This Note argues that the Roudebush decision instead should be interpreted narrowly and, therefore, that all congressional election contests should be resolved by Congress exclusively.
The Costs of Waiver: Cost-Benefit Analysis as a New Basis for Selective Waiver of Attorney-Client Privilege
The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.
Scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student speech protection and the Supreme Court’s subsequent decisions, Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick (the Bong Hits case) as a considerable retreat from this mark. By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires courts to defer to educators’ reasonable determinations of what speech may cause a substantial disruption and provides only very modest protection for student speech. Comparing the Tinker standard to those of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. Deference under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech without eliminating the limited protection provided by Tinker’s required showing of potential disruption. By contrast, the sole protection Bong Hits provides is in maintaining the line between advocacy and nonadvocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech. To illuminate the differences between the Tinker and Bong Hits tests, this Note analogizes to Justice Oliver Wendell Holmes’s “clear and present danger” and Judge Learned Hand’s “express advocacy” tests and concludes that the special policy considerations that apply to the school environment do not justify departing from the principles underlying these paradigmatic First Amendment standards.
The ubiquity of cell phones has transformed police investigations. Tracking a suspect’s movements by following her phone is now a common but largely unnoticed surveillance technique. It is useful, no doubt, precisely because it is so revealing; it also raises significant privacy concerns. In this Note, I consider what the procedural requirements for cell phone tracking should be by examining the relevant statutory and constitutional law. Ultimately, the best standard is probable cause; only an ordinary warrant can satisfy the text of the statutes and the mandates of the Constitution.
One of the tools the Department of Justice has used in the War on Terror is 18 U.S.C. § 2339B, which makes it a crime to donate material support knowingly to Foreign Terrorist Organizations. The statute has raised several constitutional questions, including whether it violates the Due Process Clause’s principle of “personal guilt”—a principle the Supreme Court announced nearly fifty years ago in Scales v. United States—because it does not require the government to prove a defendant’s specific intent. Thus far, there has been little analysis of this due process question; this Note aims to help fill that gap. First, this Note argues that although issues of personal guilt are similar to those found in First Amendment expressive association cases, the due process test is an independent analysis. Yet, cleaving the due process and First Amendment questions leaves a problem: how to give content to the Scales principle of personal guilt. Second, this Note argues that courts should look to extant substantive criminal law—in particular, the doctrines of conspiracy and complicity—for analogies that shed light on just how Scales bears on § 2339B.