‘The behavioral consequences of theories of law’, by Frederick Schauer

by admin on January 6, 2014

Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia.

The 1958 debate between Lon Fuller and H.L.A. Hart was about many things, one of which was about the behavioral consequences of holding a particular theory of law.  Writing thirteen years after the Second World War and ten years after the Nuremburg trials, Fuller and Hart worried about the complicity of citizens, lawyers, and judges in the Nazi atrocities.  More particularly, they agreed that there were consequences of a population having one or another understanding of the nature of law.  For Fuller, a population that believed that identifying an official directive as law required no moral evaluation was more likely to obey morally iniquitous official directives than one that believed that labeling an official directive as law required moral assessment.  Here Fuller echoed Gustav Radbruch, who had earlier argued that a positivistic legal environment had facilitated the unwillingness of Germans, including himself, to challenge Nazi laws on moral grounds.  But for Hart, the key to a population’s willingness to disregard morally iniquitous directives was in its understanding that identifying a directive as law said nothing about its moral worth or the obligation to obey it.

This aspect of the Hart-Fuller debate has been reprised in other contexts.  In Justice Accused, Robert Cover argued that a positivist mindset blinded nineteenth century American judges to ways of avoiding enforcement of the Fugitive Slave Laws, which mandated the return of escaped slaves from non-slave states back to their owners. Had those judges been more receptive to the natural law tradition, Cover argued, they would have seen the moral flaws in the laws they were asked to enforce and more alert to the ways in which the rigor of those laws could be avoided.  And with respect to apartheid South Africa, David Dyzenhaus has maintained that the positivist training of South African lawyers and judges prevented them from understanding law in a more malleable common law fashion, an understanding which might have led them to resist, within the law, the moral failings of the apartheid laws.

Reading Fuller, Radbruch, Cover, and Dyzenhaus charitably shows that their target was not academic jurisprudential writing.  Even Fuller, who disparaged Hans Kelsen as the embodiment of a pernicious positivism, was not so naïve as to think that morally defective obedience was caused by people’s reading the works of Kelsen, John Austin, or Jeremy Bentham.  Rather, Fuller’s claim was that positivism was partly causal and partly the consequence of a pervasive understanding of the nature of law existing within the legal profession, the judiciary, and the citizenry.  For Fuller and others, academic legal positivism was merely the most academically salient version of the pervasive social phenomenon they labeled “positivism.”

In using the label “positivism,” these theorists left themselves vulnerable to decisive philosophical and conceptual objections.   Although the view that positivism entails absolute obedience to law is a common caricature facilitated by snippets from Hobbes, Bentham, and Austin, the positivism offered by Hart in response to Fuller, as well as all versions of modern legal positivism, are agnostic about whether there is any moral duty to obey the law, let alone an absolute one. If moral worth is not necessarily a feature of a directive counting as law, as all positivists maintain, then the legal status of a directive says nothing about whether it should be obeyed.  Some positivists do believe there is a content-independent moral obligation to obey the law just because it is the law, but that position is neither part of nor entailed by legal positivism.

If we understand the Hart-Fuller debate as logical or conceptual, therefore, then Hart had the better of the argument.  But seeing the debate as logical or conceptual rather than as psychological or behavioral is to read Fuller and others uncharitably.  Perhaps they were confused about the nature of legal positivism, but their claims become more plausible if seen as contingent empirical claims about the consequences of holding a positivist position.

An old adage says if you have a hammer, every problem looks like a nail.  And thus if you are trained and practice as a lawyer, then perhaps you will see all problems as legal ones, although they may be moral as well.   If law schools see teaching of morality as beyond their mandate, then perhaps those they teach will be less likely to see the moral dimensions of the law.  Perhaps if what one constantly does and thinks about is law qua law, then perhaps one’s moral sensibility will atrophy.

None of these consequences is inevitable.  But nor are they implausible, and Fuller is best understood as advancing a contingent empirical claim about the moral sensibilities of lawyers and judges whose mental space and professional focus is on non-moral matters.  Of course it need not be so, and that was Hart’s claim against Fuller.  But although it need not be so, perhaps it is so for some lawyers and judges at some times and places.  That claim, even if mischaracterized as a natural law claim and an argument against positivism, is the best and most charitable way of understanding what Fuller and others were arguing.

This behavioral question cries out for empirical testing, whether by way of experiment, natural experiment, case study, or otherwise.  And the need for such testing is important today.  The Hart-Fuller debate was replayed, for example, in the United States in the context of the so-called torture memos.  Assuming for the sake of argument that the technical law allowed torture, was the willingness of some lawyers not to speak out on moral grounds, or not to look for ways around the law, perhaps a function of seeing legal-moral problems as exclusively legal?  When lawyers do not resist legal immorality, or when they work less than they might to interpret the law in the most moral way, is that a problem?  Perhaps not if we recognize that moral views vary, and that lawyers encouraged to understand law and their jobs morally might do so from a morally mistaken perspective.  But even if morality will best be served when lawyers see their jobs as incorporating a moral perspective, it remains an open question whether inculcation in the view that identification of law is a moral exercise will advance or hinder that goal.

I have used an American example only because I am an American.  Similar examples exist elsewhere, and those who think that legal and judicial complicity in morally questionable goals is exclusively an American problem may perhaps be examples of the very phenomenon highlighted here.  But that too is an empirical question, and thus one that no amount of otherwise valuable philosophical or jurisprudential or conceptual theorizing can address.

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