There Ought to be a Law: Gustav Radruch, Lon L. Fuller, and H.L.A. Hart on the Choice Between Natural Law and Legal Positivism.

• Author: Bateman, C.G.

There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity.

Gustav Radbruch, Five Minutes of Legal Philosophy, 1945

"Justice, not expediency, [is] the ideal of the law."

Gustav Radbruch: his own note in his copy of Rechtsphilosophie

Legal Philosophy

Those who engage in legal philosophy, as Lon Fuller (1902--1978) noted, are "attempting to give a profitable and satisfying direction to the application of human energies in the law." (1) They are trying to determine how best both they and those in the lega profession ought to be spending their professional lives. (2) Lon Fuller suggested that an outlook which inheres to a natural law perspective on what constitutes law may be the best way forward because, in his words, it allows men and women to push reason as far as they can in their quest for the answer to the question, what is law. (3) This advice relates directly to a question In legal philosophy that has troubled scholars for at least two centuries: that of how we ought to understand what the law is, in so far as it may be either something which exists on its own apart from any system of morals, legal positivism, or whether law is intrinsically connected to morality, natural law. Whether the view one takes on this question will produce either better or worse results stemming from the professional actions of lawyers, judges, and legal scholars in both domestic and international legal contexts was both passionately contended by Gustav Radbruch (1878--1949), as a once positivist converted to natural law, and hotly debated by Fuller and Herbert Hart (1907-1992) on behalf of natural law and positivism respectively. As his own words above indicate, after living through World War 2 and witnessing the horrible crimes against individuals and humanity carried out by the Nazis, Radbruch came to the conclusion that even if a legal system rested on legal certainty and laws equally applied to equals, if it was bereft of justice, the foundation of law, it was no law at all. Radbruch became convinced that how lawyers, judges, and legal scholars answer the question of 'what is law' is of central importance because he saw how the blind fidelity of judges and lawyers to the legal system under the Nazis resulted in gross injustices which law was supposed to protect against, not furnish.

In this paper I want to both briefly sketch out how this question came to be of such importance in the legal philosophy of Gustav Radbruch (1878--1949), Lon Fuller, and Herbert Hart, and I want to pose the question as to whether or not we are better off, whether better results will follow for society, if we choose to understand law either as dependent on morality or separate from it. I conclude that some via media, some middle way, between the two perspectives offers the best option, for the simple reason that both perspectives teach us essential things about the nature of law, and it would be irresponsible to merely cling to the good things one perspective offers at the expense of the important things we learn from the other.

But, the reader might ask, what do the answers to this fundamental question on the nature of law have to do with my life? As it happens, quite a bit I think. What if I were to ask you whether the legal system you live under was valid in your opinion; and if you claim it is valid, I then ask you why it is valid. If your answer includes considerations of fairness, equality, and justice, fair enough. Based on that, I would assume that you think your state's legal system is not then immoral but morally acceptable. It is at exactly this point where the question discussed in this paper is most important for you because you live in a society with many others, and how the law affects them has to matter to you, because the stability of the state depends on it in the long run. One can see, for instance, how the question would be a real problem in contemporary times for societies that include both people who are prosperous and live in a relatively safe environment under a given legal system, and people who are poor or disadvantaged under that same legal system. Those who prosper may care little about laws which do not affect themselves but have negative consequences for certain others in their society. It is not that they certainly would believe all laws must be moral because they themselves prosper, it is the real possibility that we as people will accept that because we enjoy the benefits of a legal system that therefore all laws in that system must be morally acceptable. However, if some people in our society are subject to laws which bar them from advancing in their lives and where there are profound deficiencies and imbalances of wealth and power, those people will have no difficulty identifying the immorality of such laws and, if their lack of power prevents them from having the laws changed, perhaps choose to treat them as no laws at all. None of us wants to live in a society where people treat the law as no law at all, for obvious reasons.

If we can agree that how we answer the question of 'what is law' is important, then it is worth looking at this question from the perspective of people who spent their professional lives thinking about it.

Legal Philosophers

While a more detailed examination of how these scholars answered the central question will come in turn below, it will be helpful to note a few things about each of them to put them in some context and to give the reader unfamiliar with the material a sense of the timeline, considered further below. Gustav Radbruch was a German politician and legal scholar who rose to the seat of the Minister of Justice in Germany for brief stints in the early 1920s, and who wrote a legal philosophy treatise (4) in 1932 which was grounded in positivist ideals. He lived through the horrors of World War 2 in Germany, and following the war, immediately in 1945/1946, he wrote two brief articles where he explicitly disavowed his positivist views and embraced a natural law perspective. (5)

Radbruch died in 1949, but his ideas on the nature of law continued to remain important. In the United States, in 1940, Lon Fuller, a legal philosopher and professor of law at Harvard University, gave three important lectures criticizing legal positivism and implying that some of its ideals made the transition of power to the Fascist governments in Germany and Spain during that time period easier, and thus in some way responsible for their rise. [6] Radbruch, in his 1945/1946 articles, stated the same thing, but specifically about the legal profession and judiciary: commitment to legal positivist values had blinded many of them from the rank injustices produced by their actions based on their supposed fidelity to law. Herbert Hart was a legal philosopher and law professor at Oxford University, and as someone who embraced positivist ideals, he was incensed at the apparent enthusiasm being aroused by both Fuller's writings and Radbruch's conversion to a natural law stance. He was invited to give a lecture at Harvard in 1958, and the lecture was a direct challenge to the natural law perspectives of Fuller and Radbruch and a defense of the aforementioned notion that law can be defined on its own apart from any connection to morality. So the nub of the argument was that on one side you had a noted positivist in Radbruch who had converted to a natural law outlook, explicitly, and Fuller having written in support of him and continuing to, and then Hart the positivist criticizes their claims and defends his own position that there in fact ought to be maintained a separation between law and morality. Hart's lecture was published in 1958 in the Harvard Law Review, (7) and Fuller wrote an article in response (8) which was printed in the same issue. Radburch passed away in 1949, Fuller in 1978, and Hart in 1992.

It should be acknowledged that there has been much scholarly speculation and consideration of Radbruch's views and change of heart, and one of the main questions orbits around whether his apparent conversion to natural law following the War was really so much of a conversion at all. (9) It is not the purpose of this essay to engage this interesting question, but as Hart, Fuller, and most importantly Radbruch himself, all saw it as a change in alignment of crucial significance, I accept it as a fact that he did; and while the discussion below will support this notion in various places, it is not the focus of this article to prove this point. Radbruch's work has also aroused interest in his views and formulae more generally, and numerous scholars have been interested in his work since the 1940s and continue to be to this day. (10) The continuing interest in his ideas about what constitutes law, as an active German legal philosopher both before and after World War Two, is testament to the gravity with which we now approach the questions of whether or not our positivist modernist ideals truly did assist the rise of Fascism, and what might be the best way forward in framing what law is. I suggest these are questions worth answering, and it is to the latter question I will focus my attention. In attempting to determine a satisfactory answer to this, I will lay out a number of passages from all three legal philosophers in order to both help the reader understand what was truly important to them on this question, and to, as much as possible, let each of them speak for themselves on this matter.

Natural Law and Legal Positivism

Before moving on to look more closely at the disagreement between Fuller and Hart, which was partly occasioned by the conversion of Gustav Radbruch from being a noted positivist to an outspoken natural law proponent, let me just sketch out for the reader unfamiliar with positivism and natural law their basic contours in the present context. Fuller gives us ready definitions:

By legal positivism I...