This article is reprinted with special permission from Mr. Chen Hongguo. This article is long, but it is extremely valuable to read. Especially for students who want to understand the relationship between law and morality, and want to know the differences in arguments and positions between Hart and Fuller, the two top jurists, this article will not disappoint your expectations.
To understand the law, and especially to understand the flaws of the law.
- Bentham
In a democratic country, the law is the king; in an authoritarian country, the king is the law.
- Marx
I. Introduction
The Hart-Fuller dispute, which began in 1957, lasted twelve years until the republishment of Fuller's book The Moral character of law in 1969. In the second edition of the book, Fuller made a significant revision of the fifth chapter, "Reply to the Critics," the final chapter, to give a final response to Hart. According to Fuller's summary of the book, he and Hart engaged in six rounds of confrontation: the first was Hart's speech "The Separation of Positivism from Law and Morality" at the Harvard Law School Holmes Lecture in April 1957; the second round was the 1958 Harvard Law Review Volume 71, which simultaneously published a revised version of Hart's speech and Fuller's response article "Positivism and Faithful Law: Answering Professor Hart"; and the third round was Hart's book The Concept of Law published in 1961 The fourth round was Fuller's first edition of The Morality of Law in 1964; the fifth was Hart's book review of Fuller's book in Volume 78 of the Harvard Law Review in 1965; and the sixth was Fuller's reply in a revised edition of The Morality of Law.
The main reason why I go out of my way to recount the history of this controversy at the beginning of the text of this article (rather than in the notes) is that, almost half a century later, when we look back again at this scholarly controversy that took place in the English-speaking legal world of the last century, we must admit that the "Hart-Fuller" controversy has constituted a true symbol of the jurisprudence: for Hart, who has been arguing all his life, it is more intense than ever. This controversy has thus been called the "most famous philosophical debate on law" of the twentieth century, and I think this assertion is not an exaggeration. In his polemical speech " The Separation of Positivism from Law and Morality " , Hart was ambitious and "attacked from all sides" to comprehensively present a new manifesto of positivist jurisprudence through criticisms by Bentham, Austen, american "realists", formalism, Radbruch, and Fuller. And if it were not for Fuller's timely response and criticism, Hart's influence in jurisprudence would not have been able to expand so rapidly, and would not have really been recognized by the mainstream Legal Community in the United States at that time. Of course, it is more important for us to pay attention to the substance of the text of the Hart-Fuller dispute itself. As the debate deepened, they each deepened their own thinking, marked in particular by the successive publications of two classic works, The Concept of Law and The Moral Character of Law. Judging from the examination of the history of writings, they had already raised the central questions of various jurisprudence at that time, especially in the core text of "The Separation of Positivism from Law and Morality", in which Hart explained several propositions of positivism, namely, the proposition that law is the sovereign's command, the proposition of the separation of law and morality, and the proposition of analytical study of the rules of law themselves. More importantly, Hart tactfully and strategically proved that there was no logical relationship between these propositions, that they were "three separate doctrines", and that proving the absurdity of one proposition did not prove the absurdity of others. Hart's strategy is indeed clever, because in this way, even if positivism is opposed on all sides, it can be invincible. At the beginning of this debate, Hart had not yet proposed the most important theory of the "rules of recognition" in his legal thought, but his debate with Fuller around the core proposition of positivism, the "separation of law and morality", was well prepared for the future doctrine of the rules of recognition.
Arguably, the debate between Hart and Fuller forms a vivid chapter in modern Western methodology, from which we can not only see how they engage in rational, scholarly dialogues, rather than undermining the intensity of their thinking in meaningless personal attacks—after which they also became lifelong friends; we can also discover from this debate how both sides consciously constructed the doctrinal tradition of Western jurisprudence through their own efforts. Both of them were in their best academic position at the time, and both were fortunate to meet real opponents, but they were also aware of their respective academic missions and even "ambitions". In the course of the debate, they have made a profound contribution to the accumulation and growth of jurisprudence, and their own ideas have become an important part of this tradition; the debate has another meaning, that is, in the course of debating the eternal jurisprudence of the "relationship between law and morality", they have deeply considered the nature of the legal system and reflected on how human beings should face disasters with a rational and civilized institutional arrangement.
There is a basic starting point for writing this article, that is, through the analysis of this academic controversy, we hope to make our own efforts for the jurisprudence community in our country to establish its own academic tradition, including a healthy atmosphere of debate. I think we have a lot of room to play in this regard, and thus our academic responsibility is also quite significant. The result of this effort is, of course, reflections on the current situation and future of the construction of the rule of law in our country, that is, we must reflect on the way and path we will use to achieve the beautiful society we expect of China. Since China's modern legal system as a whole is an imported product and a product of the transplantation of the Western legal system in China, when Chinese legal personnel think about the construction of China's legal system, from the perspective of academic thought, it is an inescapable course to digest and accumulate the achievements of Western legal thought and system. Of course, we have to raise China's own questions, but this is premised on the necessary theoretical preparation. In this case, the first thing we have to do is how to avoid making ourselves second-hand "consumers" of Western legal thought, so that our research can become "legal research" in the true sense. At present, most of the interpretations of Western legal thought in legal circles are still at the level of excerpts from viewpoints, and there is no in-depth analysis of the ins and outs of these views. This is clear from the cookie-cutter accounts of the Hart-Fuller controversy in our popular History of Western Legal Thought textbooks. Indeed, we intervene in Western legal thought as bystanders, and we are unable to discuss issues at the same level as Western legal scholars in terms of knowledge accumulation, academic tradition, and empathetic recognition. For example, the sweaty and cattle treatises of the British and aesthetic circles on each sub-problem of Hart's thought far exceed the current ability of Chinese scholars to digest Hart's thought. But there is another side to the problem. The purpose of our research is to study more of the intellectual and institutional context of their theories than to understand as much as possible the focus of their arguments, and to reflect on the logic and methods of their debates. In this process, Chinese scholars can have their own "self-consciousness" and be able to enter their thinking with their own awareness of the problem, rather than making this controversy a suspended symbol. Interestingly, the heated debate between Hart and Fuller at the time was about the trial of "whistleblowers" as far away as Germany. Their controversy thus enlightens us: on the one hand, of course, an eternal jurisprudential conundrum of universal significance; but on the other hand, we can consider how they transformed the German question into part of the problems of the English-speaking community they discussed. Therefore, in today's study of Western academic debates, it is also important to "transform other people's debates into our own debates."
The title of this article, "The Trial of Heaven and Man at War," is actually a metaphorical expression of the focal issue of the Hart-Fuller dispute, the relationship between law and morality: what kind of state are law as it is and law as it ought to be? In a sense, both Hart and Fuller are legal and moral realists, not romantic idealists; they are both struggling with some dazzling moral ideal that is not in the least helpful of reality, and thus proposing solutions to real problems in the process of defending the law. Therefore, their arguments around the trial scene of the German "whistleblower" have a common orientation, that is, the defense of legal rules themselves, and in the process focus on the legal and moral difficulties of the "war between heaven and man". Therefore, the idea of this article is to analyze their debate on this trial, comprehensively show the scope and depth of the issues they touched on, clarify their theoretical background and position orientation, and thus explain the significance of this legal controversy for us. In doing my last work, I also seek to make their debates part of our rational debates. The article is thus divided into six parts: the first part is an introduction, which makes the necessary explanation of the research origin of this article; the second part expounds a question of the confrontation between natural law and positivist law--who is responsible for the disaster of reality, so as to reflect on the relationship between their positions, theory and reality; the third part focuses on the internal theoretical ideas of their own theories and their core views on the relationship between law and morality; and the fourth part clarifies the focus of their theoretical debate on this basis. Thus paving the way for the following analysis of their theoretical analysis of the controversy surrounding the "whistleblower case"; the fifth part specifically interprets the legal theory controversy over the nature of Nazi rule and the realistic handling strategy they advocate for the "malicious whistleblowing case" in this "war between heaven and man" trial, so as to make necessary thinking about the trial itself; the sixth part is mainly titled "Political Law and the Political Nature of Law", further clarifying the possible significance of this controversy for our academic and institutional construction.
Ii. Theory or Position: Who is to blame for tyranny and disaster?
In theoretical debates, people often adopt strategies to prove themselves right, first of all to prove that the other party is wrong. The specific question of the Hart-Fuller dispute is the question of the legal basis for the post-war trials, which raises the question of what contributed to the atrocities of the Nazi era. As jurists, the two of them are not unaware of the complexity of the problem itself, that is, the rise to power of the Nazis and the tyranny and disasters they created have complex historical and practical factors, including ethnic, religious, economic, political, epochal, personal and other internal and external factors. But as a step in establishing their own theories and responding to the challenges of each other's theories, it seems necessary for them to first consider the causal relationship between a certain legal idea and the actual situation within the scope of jurisprudence. The result of heated debate often leads to a simplistic accusation that the other side's theory is responsible for the actual disaster. This is particularly evident in the debate between Hart and Fuller. Hart's speech at Harvard was primarily aimed at comprehensively reviving positivist jurisprudence, so after criticizing legal imperativeism and legal realism, and establishing the proposition that the regularity of law and the concept of law itself can be conceptually analyzed, his main task was to prove the core positivist proposition of "separation of law and morality", that is, separation thesis. "This proposition basically insists that the determination of what constitutes law does not necessarily or conceptually depend on moral or other evaluative considerations." This separate proposition was immediately confronted by the German jurist Radbruch's accusations of empirical jurisprudence, because Radbruch had been a representative of German positivist jurisprudence before the war, and after the Nazi catastrophe, he turned to natural law. His shift was symbolic and even implied the triumph of natural jurisprudence over empirical jurisprudence on a practical level.
But the problem Hart faces is not yet the momentum of this natural jurisprudence, because he can perfectly question this so-called "victory". Hart had to deal with a major reason for Radbruch's turn, namely Radbruch and Fuller's accusations about the relationship between empirical jurisprudence itself and the Nazis. In Radbruch's view, "The principle that 'law is law' is without any restrictions. It is the expression of positivist legal thought that has almost indisputably dominated German jurisprudence for decades." It is precisely the motto "law is law" and "the failure of the German legal profession to resist the atrocities of all evils in the name of the law that Radbruch considers 'positivism'... The role played is undoubtedly to aid in the abuse." Radbruch's conclusion is the result of a deliberate experience of his own, so of course it seems convincing. Fuller, who supports Rachel and confronts Hart directly on this point, of course, further theoretically and more thoroughly argues about the guilt of proofism.
In Fuller's view, if you want to win the battle with Hart, you must completely insist that positivism is the "culprit" and find a fuller reason for it. Fuller first looked through history for evidence that legal positivism, the dominant legal philosophy of the Nazi era, did indeed play an accomplice to totalitarian rule. He sought to historically prove that "there is or may be a causal relationship between legal positivism and Hitler's accession to power." It should be recalled here that in the 75 years before Nazi rule, positivist philosophy had acquired a status in Germany that it did not enjoy in other countries", and "German jurists generally tended to regard Anglo-American common law as a messy and unprincipled mixture of law and morality." Positivism is the only legal theory that can be called 'science' in the age of science", so "German legal positivism not only forbids legal science from making any consideration of the moral goals of law, but it is also indifferent to the intrinsic morality of the law itself, which I have mentioned earlier." German lawyers are therefore particularly willing to accept as law anything that is called "law". These things were printed at the expense of the government and appeared to be 'coming down from above.'" Fuller believed that this was a "high-sounding form of law" to violate the inherent morality of the law and achieve the evil purpose of the Nazi law. So Fuller then put forward a central critique of positivism: on the one hand, the emphasis on legal positivism would recognize immoral and evil laws because of the belief that "law is law", thus defending the "old order" and becoming the embodiment and decoration of evil. Nazi rule is proof of this; on the other hand, positivism caused the Nazis to despise the law itself, because the Nazi regime was full of retroactive laws, secret laws, "in fact, the morality of nazi law as a whole is so rare that it is difficult to understand which laws should be regarded as undisclosed or secret." But these acts, however, are disguised in the form of law, so in fact they create a state of "inability". This happens to be the fall of the law. What Fuller meant was that the consequences of empirical jurisprudence were either to preserve the old evil order or, in fact, to create disorder. In short, positivism was the reason for weakening resistance to autocracy, and "Professor Hart did not explore the actual workings of the legal system that remained under the Nazis."
In contrast, Hart defended the positivist position while also trying to prove that the theory of natural law was inseparable from Nazi tyranny. Hart adhered to Bentham's doctrine of justification of corroboration from the point of "strict obedience and free criticism." Hart believes that law containing evil content is always a reality, so the simplification of the relationship between law and morality in natural law will only lead to bad consequences, no matter what natural law Bentham and Austen targets, they all adhere to a criterion: the existence of morally evil law is a reality, and by acknowledging this we can deeply understand the specific nature of the authority of the legal order, so the main thrust of Bentham's belief is: we cannot disobey the law because it is a bad law. And because it is a law, it should not be unconditionally obeyed. If Fuller argues that the law of proof is related to the rise of the Nazis from the theory of historical reality, then Hart also tries to justify the proof from reality and attacks the blindness of natural law. He points out why the same positivism has not led to despotism and tyranny in other countries. On this basis, Hart draws on Bentham's view to point out the dangers of natural law: "The first danger is that in the many ideas of law that should be, the law and its authority may be dissolved; the other danger is that the existing law may replace morality as the ultimate standard of conduct, thus escaping criticism." In other words, natural jurisprudence will either lead reality to anarchist state, because we can overthrow the existing law and order at any time with higher moral and just standards, or we will fall into the point of glorifying the tyranny of despotism, because since the law is moral, everything in the name of law is law, "what exists is reasonable", if it is not moral, can it still be called law? Authoritarian rule tends to use the law as a fig leaf for morality, the "evening dress of politics", and it is necessary to know the truth of "how many evil and false ru are done in the name of Ru". Thus, natural jurisprudence, which emphasizes criticism, is reduced in reality to the most critical vassal jurisprudence.
The controversy of the problem often stems from different perspectives, which are usually determined by positions, and we should pay more attention to the relationship between theory and position, theory and reality. Hart and Fuller's pin-point accusations about who should be held responsible for the real catastrophe, while focusing on the strategy of debate, inevitably distort the theory itself because they do not correctly recognize the relationship between theory and reality, and because of different positions, although they both hold considerable reasons and basis. As for positivism and natural law, who is responsible for reality, there are many complex factors of karma. For example, there is a completely different counter-argument as to whether positivism has contributed to the abuse: First, it is attributed that Bentham, Austen, the early Radbruch, Kelson, Hart, etc. under the banner of positivism are all active social democrats, promoters of legal criticism and reform, such as Hart embodied the spirit of liberalism in his polemics with Defrin. In the positivist view, it is precisely because the law cannot represent the absolutely legitimate value requirements that the criticism and reform of the law has become necessary. Second, historical investigation can also be reversed to show that during the Nazi period, positivist thinking did not actually dominate, because in 1932 Schmidt declared that "the era of legal positivism has passed". So the Nazis happened to be providing arguments for the Nazis with national justice, and as Neumann acknowledged, the legal system of the Nazi state, though completely different in content from the traditional system of natural law, was methodologically closer to the idea of natural law than positivism. Hart himself defended that the separation of law and morality, though seemingly very evil in Germany, remained "in parallel with the most enlightened liberal stances" elsewhere. Similarly, natural law theorists can defend themselves on similar grounds, because natural law has also served as a precursor to democratic reform. Under the influence of natural law theory, the American constitution is a model of modern democracy and liberal government.
That being the case, we must seriously consider the relationship between theory, position, and reality, and carefully explore the internal causal relationship. Paradoxically, Hart, who is known for his research on causality, did not pay attention to this causality problem at this time because of his arguments and rebuttals. Both Hart and Fuller tried to find evidence of attacks on each other from historical reality, but this exposed the fact that they had rushed to the conclusion that they blamed each other simply by listing theories and the current state of Nazi atrocities. They do not really provide empirical support in a sociological sense for their arguments, that is, they do not provide convincing explanations for the intrinsic relevance of theory to reality. And that's why we can't be satisfied with this argument on both sides.
Indeed, for the social sciences, theoretical questions are often driven by realistic positions. Theory is not only explaining reality, but people also use reality to explain theory. In this case, theory becomes the case for assuming responsibility for the status quo, thus opening up another kind of status quo. In the history of ideas, such examples are numerous. Theory is thus saddled with many additional "burdens" of being responsible for what it should not have been responsible for. In Hart's words, so-called "isms" are used as "cannonballs" in ideological polemics. Of course, we can say that the history of human progress is the history of the development of human thought, and any thought is derived from the social reality and the living conditions of human beings themselves, so nature will affect reality. Ideas that have no practical significance will eventually disappear. However, when analyzing the relationship between ideological theory and reality, we must consider various specific conditions and complicated situations, and carefully consider where theory should be simplified and where it should be complicated; where the theory should have explanatory power and where it should have transformation power. Only then can we recognize the limits of the theory itself, "sometimes a pattern or an approach is a destiny of scholarship." Only in this way can we gain a correct understanding of the theory. By this, I do not mean that the argument between Hart and Fuller is a complete simplification of each other's theories, and as will be analyzed later, they have seriously analyzed and thought about each other's theories. In fact, the heated debate between Hart and Fuller has in turn given us another level of understanding of the relationship between position, theory and reality: as a theoretical dispute that directly focuses on practical issues, it is of course necessary for the two sides to clearly state their positions and prove that the other side's position is problematic. Therefore, behind the theoretical dispute is the dispute between positions, ideologies, and interests that exonerate oneself. It is important that both parties be able to articulate their theories and provide the most rational and sufficient arguments possible for this. Theory becomes an accomplice to the reality of evil precisely because we have transformed it into a dogma and position, into something that could have been thought and argued into something extremely rigid; and from an alternative solution into an arbitrary creed. Therefore, we may not be concerned with what a certain theory and ideology says, but with whether this theory has an opponent and whether there is room for debate for opposing ideas and theories.
Iii. Theoretical Approach: Reflections on the Relationship between Law and Morality
Therefore, if the debate between Hart and Fuller is to become a truly scholarly polemic, they must go beyond the "theory of position" and stick to the "theoretical position" of the "position." This means that they must give a convincing explanation of their theory, not just attack each other. Fortunately, both have done so. Indeed, the reason why we can criticize each other is intrinsically related to our own inertia in theoretical thinking. In the process, both Hart and Fuller developed and refined their theories about a more basic view of the relationship between law and morality. In other words, they all presented their own basic propositions in terms of law and morality, which Hart said: "The law reflects or meets certain moral requirements, although in fact it is often the case, but is not a necessary truth." This is Hart's proposition of separation of law from morality; Fuller's proposition is: "Law is the cause of subordinating human behavior to the rule of law." Unlike most modern legal theories, this view treats law as an activity and holds that the legal system is the product of some sustained purposeful endeavor." But we are more concerned here with these two conclusive propositions, but with what theoretical background they came up with and from what theoretical approach they came up with. Only then can we be clear about where they are focusing when arguing about the relationship between law and morality.
Hart: From "Natural Law of Minimum Content" to "Separation of Law and Morality"
Hart's book "The Concept of Law" aims to use the method of everyday linguistic philosophy to comprehensively propose his own legal view of the combination of "primary rules" and "secondary rules" by clarifying the difference between law and sovereign orders, the relationship between law and morality, and the difference and connection between legal rules and other social rules. In this system of rules, identify and acknowledge the "rule of recognition" of those rules in a society that belong to legal rules are central. But at the beginning of the Hart and Fuller controversy, the theory of admitting rules had not yet taken shape. However, the core meaning of the supporting recognition rule, that is, the criteria for the identification and recognition of law lie in its form and source, rather than relying on the content, morality and other elements of the law; the importance of the internal view in confirming legal norms has been preliminarily elaborated. In terms of the relationship between law and morality, Hart's new analytical jurisprudence is "new" in addition to his new view of rules, but also in his proposal of "minimum content of natural law" (minimum content of natural law). But many commentators have argued that Hart's new analytic jurisprudence incorporates elements of natural law, in particular the recognition of the moral basis of legal obligations, and is therefore a concession to natural jurisprudence. This was a major misunderstanding. The reason is that, first of all, in various occasions, Hart has almost always insisted that the proposition of "separation of law and morality" is the most central proposition of positivist jurisprudence, that is, other propositions of positivism, including imperative theory, theory of conceptual analysis of law, and the theory of law as a closed logical system, can actually be refuted, only the separation of law and morality is the bottom line to measure whether it is legal positivism. It both objectively acknowledges the noncognitivism in ethics and lays the analytical foundation for "law as a rule." It can be said that Hart devoted his life to defending this tenet of positivist jurisprudence. The denial of this creed can no longer be called positivism. Second, if this is a concession, it proves that the early positivists such as Bentham and Austen did not recognize any relationship between law and morality. But in fact, in this regard, Hart completely inherited their views and did not go any further. That is to say, the recognition of the necessary moral content in law is actually a phenomenon that has existed since the analytical jurisprudence of Bentham and Austen— as in Hart's analysis, both Bentham and Austen recognize "the overlap between law and moral norms":
First, as a historical fact, they have never denied that the development of legal systems has been strongly influenced by moral opinions, and correspondingly, moral standards have been profoundly influenced by law; therefore, the content of legal rules also reflects moral rules or principles. ...... Second, neither Bentham nor his followers denied that, with the help of clear legal provisions, many moral principles might be introduced into the legal system in various respects and form part of the rules of law; the courts might also have the task of ruling according to what they considered to be justice or in the best possible condition, and that it was lawful.
Of course, the law must include some important and socially accepted morality, that is, "real morality" in the Austen sense, such as the principle of no killing, the principle of good faith, etc., without which society cannot be maintained. But there are many differences between morality and law: for example, the differences between Hart's generalizations in terms of importance, immunity from deliberate change, voluntary character of moral offences, and forms of moral pressure Another distinction concerns the question of legal effects, and even if a legal system shows concrete consistency with justice or morality, it cannot be concluded that the criterion for testing legal effect necessarily requires the resort to morality or justice. Therefore, the relationship between law and morality is still accidental in the end. Thus, there is no fundamental difference in the views of Hart and Bentham, Austen, and others in this regard, and he does not concede more than Bentham and Austen to natural law. They all insisted: "In the absence of a clear constitution and legal provisions, the fact that a rule violates a moral standard alone cannot be said to be a rule of law; on the contrary, it cannot be said that a rule is a legal rule just from the fact that it is morally commendable." Third, Hart did not make concessions to natural law because, even in judicial character it was necessary to "examine the fairness and neutrality of the two choices; to consider the interests of all those affected, to take care of the general principles of acceptability as a reasonable basis for judgment", but this is not a reason for the inevitable relationship between law and morality, because "the same principles can serve as a wonderful cover for both observance and destruction of the law.". Fourth, and finally, Hart argues that morality is always a socially accepted morality, which may be based on both the equality and respect of reason, as well as superstition and interest. The moral requirements of slave society and modern society are not the same. "In one society it may be the duty of the wife to throw oneself into the grave of the husband, while in another society suicide may be a crime against common morality. There are differences between moral codes, and this difference comes from the peculiar but real needs of a particular society, or from superstition or ignorance."
Of course, Hart would not accept that position of moral relativism, because it was inconsistent with his positivist attitude of fidelity to the reality of social rules. Therefore, Hart must explain the moral factors that are present in any society, rather than simply excluding them from his own research field. I think it was on the basis of this consideration that Hart came up with the controversial "natural law of minimum content." In Hart's view, they are indispensable for the continued existence of a social organization and, of course, constitute the common moral and legal basis of all societies. This is an unspoken assumption based on "the simple, permanent fact that most people want to continue to live most of the time." Hart does not agree with the natural jurists' argument that law and morality are inextricably linked and that nature constitutes the indisputable premise of law, preferring to regard it as an accidental fact, "for the situation is not only the overwhelming majority of people who really want to survive, even at great pain, but also embody the desire to survive in the whole structure of the ideas and languages on which we describe the world and its interrelationships." We cannot diminish the universal desire to survive, nor can we distance ourselves from concepts of danger and safety, harm and benefit, necessity and function, disease and cure, for these desires and concepts are the ways in which we describe and evaluate things in terms of their promotion of the goal of survival." So Hart confronted the question of survival, just as he later confronted the real dilemma of humanity in his argument with Fuller, and he believed that we should be concerned with how to achieve sustained human survival through social arrangements. It was from this that he came up with the concise axioms of what he considered to be natural law. These axioms embody "the peculiar rational connection between natural facts and the content of laws and moral rules", including (1) human vulnerability; "man is both accidentally physically attacked and generally susceptible to physical attacks", so that there must be restraint in limiting violent killings, etc.; (2) general equality, no one can be strong enough to rule over others for a long time without cooperation; (3) limited altruism, man is neither a demon nor an angel, and cannot be absolutely selfish, Nor can it be unselfish. (4) The limited nature of resources, so it is necessary to establish property rights, and it is more necessary to have rules of rights and obligations of division of labor and exchange; (5) limited understanding and willpower, everyone often considers the immediate interests first when obeying the rules, and the reason why sanctions are needed is to ensure that those who voluntarily obey will not sacrifice to those who do not obey.
In terms of theoretical context, the "natural law of minimum content" follows the assumptions of natural jurists such as Hobbes, Locke, and Rousseau about the state of nature and human nature, especially Hobbes's assumption of the state of nature. In view of this, I think that although the previous analysis proves that Hart's exposition of "minimum natural law" has its origins, that is, to truly face the moral problem in a positivist sense, the way he takes and the source of his theory, that is, the search for theoretical resources from classical natural jurists such as Hobbes, is actually inappropriate, even self-defeating. His criticism of the "natural law of minimum content" is evidenced by this. This is not to oppose the theoretical presupposition itself, but in fact any theory must have a fundamental theoretical starting point, or theoretical core, which is the basis on which the theory can be constructed. For example, Rousseau's social contract, Kelson's basic norms, Rawls's original state, etc., they can be a presupposition, or they can be a high degree of generalization based on experience, but in any case, they must meet certain conditions, such as having a clear problem pertinence, highly condensed, having a basic position in the theory, and so on. In this sense, the "state of nature" of the natural jurist, and even the "rules of recognition" of Hart himself, meet the above requirements. This concept is proposed in order to explain the real problem more effectively, rather than simply copying similar concepts proposed by others in different contexts. In this sense, when Hart proposed the "natural law of the minimum content", he did not give more reasons on the basis of Hobbes and others, nor did he qualify or attach other conditions, and the explanation of "survivalism" inevitably led to the idea that this was nothing more than a simple empirical intuition and not enough to sublimate into an explanatory theory. Therefore, the theory of proper rationality in Hobbes's time presupposes that in the Hart era, it may not be so reasonable, because Hobbes lived in a time when he had to find another basis in addition to the theological explanations for the legitimate authority of the secular view of the state and law, so he proposed the theory of the state of nature. But in the age of the Hart and Fuller debates, their primary concern was no longer to provide any argument for the legitimacy of the old modern secular nation-state, for this was already an obvious fact. They are more concerned with how to provide prescriptive solutions to practical problems within the framework of the legal system of modern countries. Thus, the premise of the "state of nature" does not have much relevance to the problem that Hart is trying to discuss and solve, although he has also given his own explanation of why he should make such a presupposition.
But in any case, by examining Hart's "natural law of minimum content" and his account of the relationship between law and morality, we can still conclude that, first, these natural laws embody only the "content" connection between law and morality, which Hart emphasizes in his book. And, as Hart puts it, the content connection is nothing more than an "accidental" fact, and it does not subvert Hart's earlier assertion that there is no "necessary truth" between law and morality. If we combine the core theoretical concept of the recognition rule that Hart later elaborated, that is, the identification of law is mainly based on the criteria of form and source, rather than on the content of law, then we will be more convinced of Hart's defense of the separation of law and morality. Secondly, even as far as natural law of the minimum content is concerned, they have nothing to do with the moral basis of the law. Hart does not argue that the rationale for minimum content is moral. As Hart points out, people obey the law from different motives: "Some people proceed from careful consideration that is worth sacrificing, some from selfless concern for the interests of others; others aspire to be loyal to them because they believe that the rules themselves are worthy of respect." Third, as noted earlier, Hart's discussion of this issue is related to his consistent attitude of "not shying away from difficult situations." While emphasizing morality with variable content and changing with the epochs of society, Hart must answer some basic questions, and in the process prove that this "natural law" is not a moral requirement in itself, although this way of argument and presupposition has certain problems in itself. He wants to prove that these "natural laws" are only the established facts and purposes of the existence of the law, the natural necessity of legal sanctions, and that this is a better answer to the positivist proposition that the law can have anything", namely: "in order to properly describe not only the law, but also many other social systems, in addition to definitions and descriptions of facts, A place must be reserved for the third category of statements: the truth of such statements may depend on human beings and the world in which they live to preserve their distinctive characteristics." This third type of statement is the view that the legal system based on the rules of recognition, which is based on the recognition of the absence of a necessary link between law and morality, is a combination of original rules and derivative rules. Once established, law and morality cease to be necessary elements of the legal system, and the basis underpinning the doctrine of rules has been replaced by Hart's statement of the internal and external aspects of rules: that is, for a society's legal system to exist, there must be both those who are purely obedient or obedient to attitudes and behaviors because of fear, etc., and those who voluntarily accept the rules and use them to criticize their own and others' behavior. This was a crucial step taken by Hart, a transformation from a moral attitude toward the law to an attitude of inner and outer perspectives, thus establishing a rule theory that suspends moral issues.
(ii) Fuller: "Inner Morality" and "The Cause of Rule Governance"
Similarly, as the spokesman of the new secular natural law, Fuller, in the book "The Morality of Law", detailed the morality of obligation and the morality of desire, the inner morality and the external morality, the concept of law, the substantive goal of law, and comprehensively put forward the declaration of new natural law. However, the central issue of Fuller's discussion is the core category of "intrinsic morality", and his concept that "law is the cause of rule governance" is also based on intrinsic morality. Therefore, from the perspective of fuller and Hart's controversy, we are still concerned about what kind of theoretical ideas Fuller follows in the process of thinking about the relationship between law and morality, and puts forward his rule concept. Similar to Hart's proposal of the "minimum natural law," Fuller assumed a state of rule by a king with unlimited power, focusing on the situation in which the arbitrarily wanton legislator was defeated after encountering layers of obstacles. In the second chapter of The Morality of Law, Fuller conceives of an allegory of king Rex. Rex ascended to the throne with a passion for reform and entrepreneurship. Tired of the cumbersome trial process in the law, the outdated discourse of the rule of law, the high cost of justice, the sloppiness, sloppiness and even corruption of judges, he aspired to be a "great lawgiver". His reforms began with the complete abolition of all existing laws and the creation of a new code, which was clearly beyond the limits of his ability; so he retreated to the second place, acting as a judge for the settlement of the disputes of his subjects, but his hundreds of decisions were irregular, and the result was even greater confusion; he had to retreat, first to learn the law of induction and related knowledge, and then to draft a document declaring again that it was a new law, the content of which was known only in secret by the officials, and the subjects were very dissatisfied, because they did not know what the rules on which the trial was based Rex thus derives a lesson in his life: "It is much easier to adjudicate matters with hindsight than to try to foresee and control the future", so he gives a step further and announces that the annual adjudication of the previous year's cases will begin so that he can justify his subjects. But what the subjects needed were rules that were made public in advance so that they could arrange their lives; he had to disclose the contents of the new code, but unfortunately the subjects found that the code was vague and could not grasp its meaning; when he found experts to clarify the language confusion in the code, the subject complained that the provisions were full of internal contradictions; Rex had to continue to make concessions, but he felt that his dignity was damaged, so he decided to strike back. While eliminating the contradictions in the code, he also laid down harsh laws, such as coughing and falling in front of the king, which were punishable by ten years in prison. This was obviously impossible for the subjects to do, and as a result the code could not be enforced at all; moreover, Rex's capricious changes to the law left the subjects with no confidence in a stable life, so since then Rex has not changed the law, but the subject has found a more serious consequence, that is, the various judgments he himself as a judge are inconsistent with the provisions of the code, and it is better not to have the law. In the midst of complaints, when his career was not completed, the exhausted Rex suddenly died.
Using Rex's fables, Fuller elucidates the eight main factors in the triumph of the imaginative king, thus emphasizing and discussing the eight elements of the success of a rule of law, namely, the "intrinsic morality" of what Fuller calls the law that makes the rule of law possible, namely the universality of law; the promulgation of law; the non-retroactivity of law; the clarity of law; the avoidance of contradictions in law; the stability of law; and the consistency of official action and law. From Fuller's argumentative logic, the most important of these eight elements is "the consistency of official action and law", and the supporting element is of course to make the law universal, clear, non-contradictory, and so on. Discord between official acts and laws often results in the non-publication of laws, the enactment of secret laws, and the enactment of a large number of retroactive laws. It can be seen that the establishment of these standards by Fuller is closely related to his thinking on the current situation of the Nazi legal system, which can be described as "feeling and hair". It should be noted that these eight elements are all formal requirements of the legal system, which is the "procedural natural law", which is actually the focus of "the morality of the law" that Fuller believes.
For the purpose of this article, the reason why I have specifically recounted the parable of Fuller's Rex constantly hitting a wall and finally passing away, and not discussing in detail fuller's eight legal elements, is because in these eight elements, as far as each element alone is concerned, it is actually a clichéd "rule of law discourse", and almost everyone who talks about the rule of law will naturally say that the law should be universal, the law should be stable, and so on. Such rhetoric alone does not help us to reflect on the inner mechanism of why the rule of law has these elements, and thus it is impossible to implement the true rule of law. Therefore, the most sobering thing for our study of the idea of the rule of law is not to take these words as a kind of dogma. As far as Fuller's consideration of these "intrinsic morality" is concerned, we must understand them as a whole, systematically, and combine the theoretical assumptions and problem ideas of these elements proposed by Fuller. So I'm going to elaborate on Fuller's Rex hypothesis, because rex's conundrums are not pure assumptions, but have a clear reality orientation, and they happen to be the result of Fuller's reflection on the Nazi disaster. In an appendix to The Moral character of the Law, Fuller further illustrates the solutions proposed by different people (five attorney generals) in the face of this real-world conundrum through hypothetical whistleblower cases (i.e., hypothetical cases based on his argument with Hart). The disillusionment of Rex's ideals is precisely why Fuller should put forward the intrinsic morality of the rule of law itself, from which we can find Fuller's regular answer to maintaining the rule of law and order.
It was on this basis that Fuller made his main proposition in the book: that law is a purposeful undertaking that subordinates man's actions to the rule of law. The key to this proposition is to understand what Fuller's so-called "purpose" is. Fuller's new natural jurisprudence is "new" in that he seeks the basis of legal legitimacy not from external aspects, such as the rational justice of God or man, but focuses on the "intrinsic morality" of law (i.e., "the morality that makes law possible", "the special morality of law", "procedural natural law" or "the principle of the rule of law"), that is, the question of the virtue of law itself. Therefore, his "purpose" is really nothing more than to uphold the "intrinsic morality" of the law itself, especially to bring official action into line with universal law. In Fuller's own words, the so-called "purposeful cause" means that "the achievement of the law depends on the energy, insight, wisdom, and conscience of those who act according to the law, and it is precisely because of this that the law is doomed to fail to fully achieve its various goals." And this "purpose, which is attributed to the legal system," is, in the final analysis, "the most restrained and sober purpose, which is to subordinate people's behavior to the guidance and control of universal rules." If we are not attached to the lexical definition of "morality", for example, morality also refers to "principles of the rule of law", then our question is what is the substantive difference between this intrinsic morality and the Hart's positivist view of legal rules confirmed by the "formal standard" of the recognition rule. As Hart put it, this "purpose" and principle of Fuller is "very unfortunately compatible with the greatest evil." If so, then Fuller may also be labeled "positivist." Of course, Fuller strongly disagreed with this. The reason for disagreement is that he believes that Hart's positivist view of rules has nothing to do with this intrinsic morality. So why is Fuller so adamant? To clarify this problem, we must start with the development of natural law itself.
According to the investigation of general legal thought, from the perspective of the development of natural law itself, the natural law school is the most ancient school in the history of Western jurisprudence, which has been revived from ancient Greece, ancient Rome, the Middle Ages, the Enlightenment period, and then to the twentieth century, although there are declines, but as a whole, it is in the same line, basically emphasizing the internal relevance of other factors such as law and morality. Therefore, natural law pays more attention to the relational dimension: the ancient Greek idea of natural law thinks about the order of the human world by thinking about the regularity of the natural world; Aquinas's idea of natural law is to use Aristotle's resources to try to rethink and position the relationship between man and God, and his natural law thus proves the supremacy of God's order; and the major natural jurists of the Enlightenment prove and promote human reason by making assumptions about the state of nature and natural rights. It advocates freedom and rights that underpin the legal order of mankind. All natural jurists do not deny human law itself, but only emphasize the relevance of law to the values of nature, reason, and justice. According to Yan Juan's analysis, the natural law of ancient Greece (also including ancient Rome) is from the natural law theory of "reason-cognition-order", while the modern natural law represented by Hobbes (that is, the classical natural law of the Enlightenment period) is the model of "will-decision-contract". It can be said that What Fuller opposed was the will-determined model of classical natural jurisprudence such as Hobbes. In this sense, his objections to Hart can also be used against classical natural law, i.e., that the focus of the law is not on the managerial direction, but on establishing some kind of task instruction according to the will of the state, on the contrary, "the law provides citizens with a good framework of order so that they can act with each other." The position of the government is nothing more than that of the guardian of the integrity of this legal system." Thus, Fuller's "new" natural law is in fact a suspension of the state underpinned by natural justice, which is emphasized by classical natural law, in this sense it is different from classical natural law; on the other hand, this natural law is also different from the theological natural law of Aquinas and the new theological natural law of his successor, Fenis and others, because Fuller does not focus on the substantive problems of the "properness" of natural law, he is concerned with the virtue of law itself, and he opposes the rational discovery of laws that must satisfy god's moral principles. Fuller's "secular" natural jurisprudence in this sense is a revival of the natural law theories of ancient Greece and Rome, but here it is necessary to reverse Yan's formula, that is, from "reason-knowledge-order" to "order-knowledge-reason". Here we can analyze Fuller's new approach to natural jurisprudence from the discourse of the ancient Roman natural jurist Cicero. Cicero argues that "true law is the right rule, which coincides with nature, which applies to all men, is stable, permanent, summons responsibility by way of command, prevents the ,...... of crime in a forbidden way" sees both the rational requirements of natural law and the imperative, universal intrinsic elements of law itself. What is important is that this sentence emphasizes the intrinsic connection between the natural order and the rationality of the law. In this sense, fuller's point of view is neither based on some divine superior command nor on some ideal moral pursuit, but rather on the correspondence of law to the universal laws of nature that the human order must follow. The so-called natural jurisprudence is to elucidate the transformation of the eternal natural order into the legal order of man himself. This is the core meaning of inner morality. In other words, intrinsic morality is inherently the morality of the order itself, whether it is a natural or legal order.
Fourth, the rule of law: the understanding of the nature of law
We have analyzed two core theoretical propositions of Hart and Fuller in relation to law and morality: Hart's proposition is that law and morality are separated and there is no necessary relationship between the two; Fuller's proposition is that law itself must contain intrinsic morality, so law is a purposeful undertaking of rule governance. Both men approached different theories and eventually led to an understanding of the "regularity" of the law itself. In this section, we will further clarify the difference between their respective "rules view". The main disagreement is that Hart believes that Fuller's "inner morality", as a formal principle of the rule of law, can actually tolerate evil moral content. Hart's view sought to subvert Fuller's view of the intrinsic relationship between law and morality from within; for this reason Fuller had to argue that only by adhering to the "intrinsic morality" of the law (that is, the "rule" of the law) could one achieve respect for the morality and substantive morality outside the law. Therefore, intrinsic morality and external morality, that is, the righteous demands of the law, are inherently inseparable.
Thus, Hart's Fuller controversy is not so much a "moral" dispute as a dispute over what rules to uphold. In their respective classics, "rules" are used as a central concept: Hart believed that law was a combination of original rules and derivative rules; Fuller believed that law was the cause of rule governance. And it was this debate around the rules that seemed to me to be the focus of the Hart and Fuller debates. So it's no wonder that some people point out that the differences between Hart and Fuller are not as big as they think, and perhaps their commonalities are much greater than their differences. However, because of this, we should examine in detail the controversy caused by their differences in the understanding of the rules. As Hart puts it, "our starting points and points of interest in jurisprudence are so different that the author and I may be doomed to understand each other's work," and Fuller further elucidates this different starting point in the second edition of Legal Ethics.
Let's first look at Hart's refutation of Fuller's view of the rules. First, as has been shown earlier, Hart believes that Fuller's inner morality can accommodate both good and evil goals. So this inner morality is not necessarily "moral." Hart's subtext is that the purposes contained in Fuller's rule theory are not necessarily related to morality itself, so they do not pose a challenge to positivism. This is a critique of "purpose"; secondly, Hart further criticizes the structure and function of "inner morality" itself, which he sees as nothing more than a technique for the pursuit of efficiency:
It should be noted that, in the designations endorsed by the author, the power of the word "intrinsic" lies in emphasizing the fact that these forms of legal merit do not arise from the principles of justice or from other "external" moral principles related to the substantive objectives or content of the law, but rather from a very realistic consideration of what is necessary for the efficient realization of the purpose of guiding human behavior to obey the rules. By putting ourselves in the shoes of legislators who are conscientious for this purpose, we can discover what they are, when in fact they are principles of good skill.
To this end, Hart gave the example of poisoners. He noted that Fuller had made the mistake of "conflating two concepts that must be treated separately: the concept of purposeful behavior and morality." There is no doubt that poisoning is a purposeful act, but reflection on its purpose shows that it is also intrinsically principled. ('Don't be such poisons, no matter how deadly they are, if they can cause the victim to vomit,' or 'Don't have such poisons, no matter how deadly they are, as if their shape, color, or size are easy to draw attention to.) But to call these principles of poisoner technique "the morality of poisoning" can only be confused with the distinction between the concept of effectiveness in purpose and those ultimate judgments of actions or ends, on which various forms of morality are concerned." There are many techniques for poisoning: "Some of the principles of technique are expressed as indisputable rules (in the case of the poisoner's technique, 'make sure the poison is not too big to swallow'), while others are adhered to only according to signs of the direction of effort ('make sure the poison is not too expensive')." Hart's example of Fuller's "inner morality" by using the example of a poisoner can be described as well-intentioned, because poisoning itself is a highly immoral act. So even for the sake of immorality itself, the success of poisoning depends on many "norms" and standards, and many procedures and principles are followed, just like the eight principles of "inner morality." But Hart's example itself is significantly flawed. In fact, in the course of any theoretical argument, trying to illustrate by way of example the practice of the theory itself undermines the coherence and consistency of the theory, and even the thoroughness of the theory itself. The poisoner example has some basis if it is only used to analyze and subvert the morality of "inner morality", but this way of explaining necessarily means a consideration of purpose, that is, Hart must use this to show that Fuller's morality is only the pursuit of "efficiency", in order to overturn Fuller's judgment that inner morality and external morality are closely combined. But this is clearly not what Fuller meant, and it is clear that the inner morality in Fuller's eyes is to be achieved, and that other legitimate goals beyond efficiency can be achieved. As a result, Fuller also grasped the so-called "efficiency" criticism and fully defended himself. In this respect, Fuller showed the thoroughness of adhering to the "rules" of the law. So Hart didn't have to give an example of a poisoner, which undermined his expression.
Thus, in complete contrast to Hart's analysis of the rules, Fuller insisted on and emphasized his position, and used it to criticize Hart's positivism for lack of purposeful consideration. "So when we say 'moral neutrality of law,' we cannot mean that the existence of the legal system and its conscientious and conscientious management have nothing to do with the achievement of moral goals in the affairs of life," he said. If respect for the principles of the rule of law is necessary to facilitate such a legal system, then it is of course normal to say that those principles constitute the special morality of the legislator and the enforcer of the law." Fuller, on the one hand, shows that respect for the principles of the rule of law is a necessary condition for the achievement of moral goals, and on the other hand, it also indicates the responsibility of legislators and implementers of the law in upholding this morality. This goes beyond what he sees as Hart's limitation of the duties of legal officials—in his view, Hart simply uses the use of the law by officials with an inner view as an indicator and criterion, without considering other values that the law is meant to uphold. So Fuller criticized empirical jurisprudence for lacking (not recognizing) the social dimension of law, which he meant by Hart's empirical jurisprudence does not see the interaction between legislators and citizens, which happens to be the essential element of good law. He argues that positivist jurisprudence sees only the source, its formulation, and only the one-dimensional legislation, while the intrinsic morality he himself proposes to illustrate a process of legal endeavor and interaction, for example, when two people enter into a common cause, they have not predetermined the terms of the whole cooperation; what they do is to begin a series of consultations, "each according to what he thinks the other person will pursue, and according to his he thinks that the other person will also think that he has such a pursuit of the way to adjust his words, Performance and action", so it seems that the reality of the law can only survive "through purposeful efforts and through the interpretation of each other's purposes by the participants." It is in this sense that Fuller finds ample reason to refute Hart: "Inner morality" is not as simple as the poisoner's pursuit of efficiency, because it contains the basic principle that official action is clearly consistent with the law, and the thoughtful poisoner "never forgets to tear off the drug trademark on the bottle when he hands the poison bottle to his victim." The despicable act of tearing up labels is clearly contrary to the principle of "unambiguous consistency". Thus, it seems to me that Fuller's conclusions contain two dimensions: First, "in the life of a people, the external morality of the law and the inner morality of the law affect each other, and the deterioration of one side is almost inevitably worse than that of the other." Second, and perhaps more importantly, in contrast to Hart's emphasis on the "description" of the social phenomenon of rules, Fuller also sees the complex workings of the rules themselves, the content of people's interaction under established rules in order to defend the "intrinsic morality" of rules: "A person can make appropriate efforts to amend a constitution, but as long as the constitution has not been amended, the person must act within its scope and must not violate or bypass it." This is tantamount to saying that for a written constitution to be effective, it must be recognized, or at least provisionally, not just as a law, but as a good law."
We can see that in addition to the analysis in the first part of this article, where they accuse each other of taking responsibility for Nazi atrocities in order to attack each other's positions, the tactics adopted by the two sides here are more rational, and they try to hollow out the basis of each other's arguments from the inherent flaws in each other's theoretical logic. Hart's strategy was to strip Fuller's concept of "morality" from the so-called "intrinsic morality" inherently related to the regularity of law, thereby subverting Fuller's core proposition from within: either intrinsic morality is inclusive and can accommodate evil content; or intrinsic morality only pursues efficiency; in turn, Fuller not only sternly refutes Hart's accusations, but also denounces Hart's so-called "rules" of separation of law and morality that do not actually follow real rules, which is nothing more than Austen's "imperative theory" Based on the makeover manager model. Although Hart emphasized the combination of primary and secondary rules, he was more concerned with the source of the law and the proof of authority, so Hart represented the managerial direction, while Fuller considered himself to represent the "social guidance form", the manager's instruction mainly to adjust the relationship between the obedient and the superior, and the social guidance form was to pursue the general interest relationship between the citizens. It can be found that the confrontation between the two sides is actually a confrontation around the rules, one side believes that your morality combined with the rules is not really morality; the other side believes that your rules are not a rule at all, but the loss of the rules of the law itself. In this sense, Fuller seems to have become an positivist, while Hart became a natural jurist. In the process, perhaps both sides misunderstood the full meaning of the other; perhaps both sides correctly interpreted what the other wanted to say but did not say. Having understood the ins and outs of their respective theories, and understanding that the focus of their confrontation was actually a different understanding of the nature of the law, the "rule-basedness," we can now formally move into their specific debates surrounding the case of "malicious whistleblowers" in Germany after World War II.
V. Trials of Heaven and Man at War: The Nature of Nazi Rule and the Tactics of Case Handling
The "malicious whistleblower" case that Hart and Fuller argue about is largely this: a woman wants to get rid of her husband (a German soldier) because she has an affair. She reported to the authorities that her husband had disrespectful remarks about Hitler during his return from the army. Under laws of 1934 and 1938, the husband was charged with crimes and sentenced to death, which was later commuted to service on the Eastern Front. In 1949 the woman and the judge who heard the case at the time were prosecuted under the charge of section 239 of the German Penal Code of 1871 (on unlawful deprivation of liberty). The judge was acquitted because his sentence against her husband at the time had been made in accordance with the laws that existed at the time, regardless of the moral status of his opinion; In the end, however, the court ruled that the wife, without obligation, had "deviated from the conscience and sense of justice of all decent men" and denounced her husband under the domination of evil motives, resulting in the husband being deprived of his liberty.
In a sense, the case they are arguing about can be said to have been "constructed" by them, even if it has a real blueprint. This is the blueprint for Dr. Pap's report on the case. As Hart points out, this report is "misleading," so Hart qualifies the case strictly, arguing that "the case discussed in this article must be considered a hypothetical case." 68 It seems to me that Hart's assumptions are mainly twofold: first, not to discuss the trial of the judge who convicted her husband; and second, to assume that the Nazi-era law of 1934 on which a woman denounces her husband is valid (though not necessarily moral). And the second hypothesis happens to be something that Fuller strongly opposes. So in this section, we will first explore the theoretical differences between the two sides on the legal basis of the case, focusing on their arguments over the legal basis of the case; then we will analyze their realistic strategies for handling the case.
(i) The nature of Nazi rule: legal or illegal?
At the beginning of Fuller's response to Hart's speech, he focuses on the real context in which this "hypothetical" case took place. He made a rather "more truthful" analysis of Germany's 1934 law, which prohibited the publication of speech openly against the Empire. He deduces from the relevant provisions of the law that the provisions of the law are cruel, because if the husband's conversation with his wife also becomes "public" speech, there will be no private speech at all (there is a provision in the law: "Although he has not made malicious remarks publicly, he shall be punished by public speech when he is aware or should be aware that such remarks will reach the public ears"); Fuller's analysis reveals that the trial of husbands during the Nazi period violated at least two "intrinsic morals" of the law, namely that "the law cannot demand the impossible" and "that official behavior is consistent with the law." Fuller's disregard for Hart's definition of the "hypothesis" of the case may be precisely because he believed that Hart simply ignored nazi laws and violated legal morality, and thus did not deserve to be called a legal reality. "The Nazis' complete disregard for even the laws they made themselves was an important factor in the holding of radbruch's views in his articles (a view that was heavily criticized by Professor Hart). I think that, as Professor Hart did, it is impossible to take this factor into account entirely, and to make a fair assessment of the conduct of the German courts after the war." In this sense, the starting point of their argument is indeed different.
Not only that. Fuller further argues that precisely because the Nazi government was a government that did not pay attention to legal purpose, their laws were doomed from the outset to violate the rule-based requirements of the law:
It is no surprise to me that the dictatorship that conceals itself in the form of a grandiose law deviates so far from the morality of the order, from the intrinsic morality of the law itself, that it is no longer a legal system. When a system of self-proclaimed law is based on judges' general disregard for the legal provisions they claim to apply; when it is accustomed to correcting irregularities (even the most serious irregularities) of the law through retroactive statutes; when it can only resort to terrorist attacks on the streets to escape the limited restrictions imposed under the guise of legitimacy, and no one dares to challenge them; when all this has become the real situation of dictatorship, to me, At least it is not difficult to refuse to call it a law.
In fact, Fuller argues, "throughout nazi rule, the Nazis frequently used a method that was not unknown to American legislators: retroactive laws to correct past irregularities." So Fuller emphasized more thoroughly that law is law, rules are rules, and his view of natural jurisprudence has a firm belief that "the relationship between (logical) coherence and goodness is more affinity than the relationship between (logical) coherence and evil."
In response to Fuller's argument, Hart pointed out: "It is also fairly true in general that a government committed to a policy of evil terror, if it is not certain that its policy will be supported in general or finds it necessary to appease outside opinion, often wants to rule in secret and vague and uncertain laws." But this is only a question of prestige or power of government change, not any necessary incompatibility between a government established on the basis of the principle of the rule of law and evil targets." Hart, who emphasizes the reality of respect for the rules, confronts Fuller's persistent belief that "intrinsic morality is in no way compatible with evil goals; evil goals necessarily undermine inner morality", and in an objective and fair tone, it shows that the legal rules established by inner morality are of course not compatible with every evil, it will exclude some evils; but it is not compatible with every good goal as Fuller imagines, and it will also damage some goodness. In Hart's eyes, Fuller's belief was tantamount to a naïve, unrealistic attitude. It was in the face of Fuller's questioning about the state of the nazi legal system that perhaps Hart had all the more reason to insist that the separation of law from morality, that is, the relationship between law and morality, was accidental. Hart's attitude was always that we should respect the legal realities of the time, and even though we admitted that there were evil laws (which positivists saw, or that positivists did not blindly fail to see the status quo of Nazi secret laws), there were still many laws during the Nazi period that were "intrinsically moral" (even according to Fuller), so the reason why Hart regarded the case as a "hypothetical" case was because, in his view, We can fully discuss historical issues while acknowledging the legal system of the day (rather than judging it according to today's morality).
This is Hart's consistent attitude. It was also the crux of his argument with Fuller over the case. Nicola Lacey described in vivid brushstrokes Fuller's reaction after hearing Hart's speech at the Holmes lecture:
Joel Feinberg (who himself later became a prominent legal and political philosopher) remembers Fuller "pacing around the back of the lecture hall like a hungry lion" and leaving after the question session was only halfway through. ...... A few days later, Herbert recorded, "Ron Fuller (in the Faculty Club) refuted me with agitation, announcing that he would make an official comment in ... the Harvard Law Review. I felt like I should have shown gratitude and understanding, but I didn't."
The above analysis may give us some insight into why Fuller felt lion-like outraged by Hart's speech. Fuller insisted that the intrinsic morality of the law could achieve the external moral goals pursued by the law, so he insisted on the consistency, purity and thoroughness of the morality of the law, which could not be shaken in any way; when the Nazi law did not meet the requirements of such legal openness, non-retroactivity, official behavior and legal consistency, it was resolutely unable to recognize it as law. On the contrary, precisely because Hart believed that the relationship between law and morality was accidental and separate, the law of the time should be judged by the reality of the time, and people's understanding of the law could not exceed the customary standards, traditional standards and moral standards of the time. Even if people have evil purposes in using the law, such as this woman who whistleblowers, we cannot deny the validity of the law at that time, so when we solve these problems today, we cannot easily deny the law of the time, and to maintain the law of the time is in a sense to maintain the dignity of today's law itself. As for how to achieve the legitimacy requirements of the law, we can solve it in other ways and based on other considerations. That's where Hart stands. In the following analysis of their realistic approach to the case, we will also specifically explore the focus of the debate between Hart and Fuller.
(2) Respect for the law: realistic strategies for handling cases
It is worth noting that whether it is Radbruch, Fuller, or Hart, the solutions they offer when faced with how to deal with real-world cases are strikingly similar. Despite Radbruch's remarkable post-war shift from positivism to natural jurisprudence, he still exhibited a rather cautious attitude like a positivist when faced with the actual trial of cases. He said:
We prefer to insist that after 12 years of rejection of the stability of the law, we should strengthen the consideration of "formal jurisprudence" to counter the temptation that it is conceivable that this temptation may easily arise in anyone who has experienced 12 years of harm and oppression. We must pursue justice, but at the same time we must value the stability of the law, because it is part of justice in itself, and to rebuild the rule of law, we must consider both of these ideas as much as possible. Democracy is indeed an admirable good, while a state governed by the rule of law is more like a daily eclipse, a thirst for water, and a breath, preferably based on democracy: for only democracy is fit to guarantee the rule of law.
On the one hand, Radbruch endorsed the concept of the "lawlessness", that is, to learn the lessons of the disaster, to ponder the pursuit of justice of the law, so that the German nation could prevent the resurgence of such an illegal state; on the other hand, as a practical legal person, he realized that it was necessary to emphasize the stability of the law and not to completely negate the previous law. In his discussion of how the presiding judge should try the case, he also said: "The judgment of an independent trial judge constitutes the object of punishment only if the judge directly violates the principle of independent trial that he or she is supposed to serve according to the law, and violates the principle of obeying only the law, that is, obeying only the law." If, on the basis of the principles we have derived, it can be concluded that the law that has been applied in the past is not the law, that the penal standards that have been applied in the past, and that the death sentence pronounced on the basis of discretion are all satires of any intention toward justice, then the objective fact of perverting the law is obvious." Therefore, at the practical level, Radbruch places great emphasis on the stability of the law, and thus recognizes the enactment of retroactive laws in specific cases.
Hart's attitude is most typical of the enactment of retroactive laws to deal with whistleblowing cases. He argues that at this time we are faced with an inescapable choice:
One is to leave the woman with impunity, and the other is to confront the reality that if the woman is to be punished, a law that is publicly retroactive must be introduced, and we are fully aware of the costs we face in punishing her in this way. Retroactive criminal legislation and punishment may be abhorrent, but in this case it would at least have the virtue of frankness. It must be understood that in order to punish the woman, we must choose between two evils: either to keep the woman from punishment or to abandon the precious moral principle of non-retroactivity, which is accepted by most legal systems. The only thing we've learned from the history of ethics is that the solution to the moral dilemma is not to hide it.
So Hart argues that simply thinking that something immoral is not law obscures our understanding of the substance of the problem and encourages romantic optimism. From Hart's argument, the choice we face at this time is no longer just a legal choice, but a moral choice: either to abandon punishment (which is morally evil) or to retroactively (contrary to the principles of law), and its underlying meaning is the proposition of the separation of law and morality: because of the separation, we can recognize it as law, and at the same time have a moral obligation not to obey the law under careful consideration. It's just that it's a price that must be paid, and that's exactly what makes Fuller unhappy. Looking at Fuller's strict rules, since we admit that it is the law, but do not abide by it, is it not a mistake of inconsistency between official behavior and the rule of law? A rule is a rule, and to admit it is to obey it, otherwise it is simply to deny it. But what about Fuller's claim to the handling of the case? Fuller said:
But, like Professor Hart and Radbruch, as a practical solution to whistleblower cases, I will prefer retroactive decrees. The reason for preference is not that it is a way that makes what was once law illegal in a way that is closest to the law. I prefer to see such decrees as a way of symbolizing a clear break with the past and as a means of carrying out purges isolated from the normal functioning of the judicial process. Because it is exercised in isolation, it is possible that justice will return more quickly to a state of proper respect for legal morality, and it is possible to plan more effectively so that reason loyal to the law regains its normal meaning.
Fuller, while acknowledging that the case must be dealt with through retroactive law, in his view it was not a matter of moral dilemma at all. Rather, it is a symbol, a rupture, and perhaps a return: the denial of lawlessness means that we must return to a state of defence of the principles of the rule of law and inner morality.
Examining the practical strategies of the three of them in dealing with the case as a whole, what they all have in common is that they all believe that retroactive law must be adopted; both believe that this adoption is only for specific cases, not a total rejection of previous laws; they all hope that such choices are the result of careful consideration; and they all realize that retroactive laws actually mean a refusal to apply the laws of the time in practical terms (in fuller and Radbruch's case, it means that the laws of the time are invalid). In Hart's case it means that we are morally disobedient to the laws in force at the time). If they have so much in common in their practical strategies for handling the case, why is the debate between Hart and Fuller so vigorous? The main reason for this is that the reasons they give for the "retroactive law" scheme are different: Hart's reason is that it is rooted in the inevitable dilemma we face; Radbruch's reason is that there is a higher justice behind the law; and Fuller believes that such a dilemma does not exist, nor does it make the higher reason of finding a "supra-legal law", "If jurisprudence had paid more attention to the intrinsic morality of the law, it would not have to resort to this concept to declare the brutal Nazi statutes invalid", Nazi law "To conceal one's dictatorship in the form of a grandiose law is so far away from the morality of the order, from the intrinsic morality of the law itself, that it is no longer a legal system."
Behind similar approaches are quite different rationale, and different arguments reflect Hart and Fuller's different understandings of the reality of what is a rule of law, and it is this difference in judgment of the rule that angers Fuller's nerves: in Fuller's view, the reason for Hart's seemingly profound moral dilemma is actually a simple understanding of the nature of the rule. When you admit that this is the law, but think that it is so evil and disobedient, is it not a "real problem" that deviates from the rules of the law? For "there is no doubt that when the court refuses to apply what it considers to be law, it is when moral confusion is at its peak." "And to use a retroactive criminal statute against whistleblowers necessarily means that Nazi laws applicable to whistleblowers and their victims will be considered invalid as far as those statutes are concerned." Therefore, "my way is consistent" and "rules are rules". However, because of this, Hart also believes that Fuller's understanding of the rules is a simplification, a kind of speculation to escape the predicament. Yes, it's actually much easier to say "no" than it is to say yes. Hart's dilemma is not only to recognize people's arbitrariness and ignorance on moral issues while acknowledging the separation of law and morality, but also to recognize that people's understanding of the order of rules has insurmountable limits: rules are necessarily rules in a given situation.
In this sense, Fuller may have made the mistake of being diachronic. Because Hart focused on the problems that exist as rules as a socio-historical phenomenon. The conundrum of choice is, after all, a reality, and even further, in the light of the current situation's understanding of the Nazi rules and the requirements of the present rules, retrospective laws both indicate moral dilemmas and, ultimately, our legal decision to choose between the laws recognized now and the laws recognized at the time. Moral questions are transformed into legal questions, because society's acceptance of rules is motivated not only by morality, but also by fear, superstition, inertia, and so on. So while Hart also acknowledges that the statute of crime is a fundamental principle, if this principle is sacrificed in the face of greater evil, then the situation at stake must be clearly confirmed. We are thus faced with the problem of selecting and positioning rules in a special case. In this case, Fuller only sees the rules and does not see the reality behind them.
In The Concept of Law, Hart built on his Harvard speech to make the choice more explicit in special circumstances: "A case of retroactive punishment should not be seen as an ordinary case as if it were an ordinary case of punishment for unlawful acts of the day." Such an approach can at least claim some simple positivist principle: that morally evil rules can remain law, and that this is not to disguise the choice between two evils. This choice must be made in extreme circumstances." Interestingly, here Hart raises the question of everyday and extreme situations that Schmidt, Ackermann, and others have noticed, even though this linguistic distinction has very different meanings in their writings. I thought it would be possible to call Hart's choice in extreme cases the "Hart conundrum," but we must be clear that, first of all, the concerns of Hart and Fuller are not the same as those of Schmidt. That is to say, Schmidt's political decision on the German question is not the question of Hart and Fuller's controversy, or, as Tocqueville puts it, this question is only a background in the debate between Hart and Fuller, which has been transformed into a legal question; secondly, the choice of extreme situations that Hart describes has two important qualifications, which is also his way of thinking about the "Hart problem": one of the conditions is to openly recognize the validity of the Nazi laws at that time. So this is a choice between unavoidable evils; the second condition is that this choice is recognized by the present rules of recognition, i.e., the decision of the majority of those who hold an inner view to such extraordinary circumstances, that is, to be "clearly identified" by society. This is not only a positivist answer loyal to the law, but also an important legal theory (rather than political theory) problem that we discuss as Hart's "rules of recognition" to solve, which also involves Hart's analysis of the inner and outer views, the main idea of which is that there is no contradiction between declaring that a law is valid in a certain period and declaring that the government of that period no longer exists. The latter is "a statement of fact, another statement is ... Legal statements, the two do not logically conflict." In other words, "a statement of legal effect is an intrinsic legal normative statement, while a statement of the existence of a legal system is a statement of fact". But this is beyond the discussion of this controversy in this article, but this question is the most meaningful question that has emerged from this controversy.
(3) Reflections on the trial itself
This is the trial of heaven and man at war, and it is also the torture of how to build human civilization and order around the trial. In the course of the debate between Hart and Fuller, the trial itself may have become a metaphor, as I once commented:
Judgment in the name of law has always had to transcend the law itself; for human judgment has always been a declaration of interest, a moral judgment, a political judgment, and a review of human nature. In this sense, although the judgment is suspended and suspended, in the process it is re-established and regains new life. Judgment reveals its own insurmountable limitations and the predicament from which humanity cannot escape. But perhaps the dilemma itself is hope, and perhaps hope can only be found in the predicament. That is the meaning of judgment. As Mrs. Berthaut also said, "If we are going to live, we have to forget." Yes, it is the judgment that makes it possible for us to put an end to a sad past and usher in a new sky.
The controversy between Hart and Fuller gives us a deeper understanding of the meaning of trial. It is true that the scene of the trial reveals the reallocation of state power, the redistribution of benefits, and the return of justice, but all of this must have a core vocabulary, that is, it is a "trial", a trial with legal and procedural significance, centered on rules. In any case, there is one of the most obvious, but most likely, facts in this debate: neither Hart nor Fuller objected to the trial itself, and they had a clear agreement on how to try the whistleblower woman's "crime and punishment." Perhaps the "worldly style" embodied behind the trial gives Hart's "rules of recognition" the same basis as Fuller's "inner morality." Through this legal trial, we must not only destroy an old order, but also establish a new one. The controversy between Hart and Fuller thus touches on the institutional dimension of the law that they have not stated: based on the limited nature of human understanding and ability, human law always progresses under the existing system, and it is precisely because of the constraints and struggles under the existing system that this progress has great significance: it is the battlefield of law, a force against the nihilism of human nature under the premise of respecting laws and rules, so it is destined not to destroy everything and start all over again. Perhaps this is the intrinsic consistency behind Hart and Fuller's argument, the consensus they reached after much deliberation on the relationship between law and morality. Further, the significance of the dispute between Hart and Fuller is not only to bid farewell to the past and open up the future, but also the question of how we can break with the past, that is, how to use the way of law to break with the past, which is of special significance for us today to think about the twists and turns of China's legal system construction.
Another debate: the political nature of the law versus the political nature of the law
If we can make an analogy, then the two passages quoted in the inscription of this article basically represent the position of Hart and Fuller: Bentham's statement that "to understand the law, and especially to understand the defects of the law", is generally closer to Hart's position, because in Hart's view, the defects of law without moral perfection themselves embody the reality of law as social rules; and Marx's words "in a democratic state, the law is the king; in the despotic state, the king is the law". Perhaps closer to Fuller's position, for in Fuller's view, the laws of authoritarian states are destined to violate the intrinsic morality of the law, thus becoming a false pretense of tyranny and no longer worthy of being called the law. So the debate between Hart and Fuller is essentially a rule battle, and their positions are not so much a fierce confrontation as complementarity. To scholars who focus on the critique of the "formal rationality" of modernity, the controversy between Hart and Fuller seems to have become a legal ideology of modernity, a performance of deepening the effects of modernity's law, a double reed and conspiracy staged around the strategy of modernity. Therefore, if we can not lose the problem itself in the process of solving the problem of China's legal system, we should maintain sufficient vigilance against this "mystery of distant cultures". However, in my opinion, for China moving towards a legal society, this "consensus" is of great significance. When we focus only on the criticism of this kind of modernity, are we also using "big words" that criticize the legal system, such as "legal empire" and "ideology of modernity", to obscure people's real legal needs? More questionable is whether the solution of the law defended by Hart and Fuller implied a lesion of modernity. In other words, just as their accusations that the other person's theory is responsible for reality are not justified, are we making the same mistake when we accuse the rule of law that itself may mean the cage of modernity? Further, if we could substitute alternative choices and ways of governing the law, wouldn't we fall deeper into the abyss than modernity?
The significance of the Hart and Fuller argument is only highlighted in this kind of questioning. I believe that after the political catastrophe of World War II, the question of the Trial of the Nazis, including the legal debate and reflection of Hart and Fuller on this issue, is enough to constitute a glorious page in the history of human civilization. It is not that they are unaware of the crises hidden behind modern politics, nor are they defending the ideology of modernity in this way, and of course they are not confined to naked considerations of one's own interests and power, such as the legal profession and the autonomy of jurisprudence, in expounding their understanding of the nature of law. On the contrary, I think they have a longer-term vision and a broader concern, that is, a concern for how humanity can avoid the fate of catastrophe. More remarkably, the situation that Hart and Fuller discusses is not a general day-to-day legal matter, but a question of how people can find a better continuity in maintaining human civilization and order in an extraordinary situation. In the words of the previous discussion, it is a question of how we can break with the past through trial. This is best illustrated by a quote from Fuller: "We need clarity not only in our daily affairs regarding the obligation to be loyal to the law, but also primarily in the particularly urgent and troubled autumn." This is indeed the greatest significance of the Hart and Fuller controversy, and the more in a moment of peril in the impact on civilization, the more civilized solutions such as the law should be respected and upheld. In such polemics, they note that the political nature of the law is a reality, and Hart acknowledges this "political fact," but the legality of politics is the way they try to resolve it, and they are cautiously and deeply convinced of it. They happen not to have a technical ideology of law in the first place, they see the limitations of the law, they see that the efforts of jurists are carried out within the established institutional framework, but it is precisely because of this that they have proved the possibility of taking up the weapon of law and making efforts. What they are defending against may be a secular, technological, and utilitarian world.
I believe that such reflection is meaningful for China, which is building the rule of law. In Today's China, the incursion of political philosophy into jurisprudence seems to be gaining momentum. In addition to the reasons why Chinese academia itself is immature and easy to follow the trend, there is also an important institutional reason: with the advancement of China's rule of law process, our reform within the law, including judicial reform, legal education reform, etc., has encountered some unprecedented problems, which is the inevitable result of the rule of law process entering the "constitutional" level. We seem to be in a very urgent need to make a political judgment on the situation of legal system construction in contemporary China. Indeed, behind the choice of each theoretical plan is a profound conceptual support, and the choice of every legal path is inseparable from a certain form of government. Objectively speaking, for this complex project of China's social transformation, every perspective and concern has important significance. The more such a time, however, the more useful the controversy between Hart and Fuller gives us: they are not people who do not care about politics, nor are they naïve romantics, but they think calmly about how to defend the rule of the law in the moment of crisis. It's not that we're unaware of the hidden techniques of domination that may be hidden behind the law, but perhaps, we have to see that the people who often talk about politics happen to be the people who don't know politics the most.
This may also be a Sisyphus belief: even if everything changes tomorrow and starts all over again, even if it is a time of change, we still have to try to live an orderly life now, because we live in the present, not in the past, not in the future. In any case, for those of us ordinary people in extraordinary times, the life of the system is a top priority. ■
Note: In order to adapt to mobile phone reading habits, we have omitted the comments on the article, and for alumni who need to read the full article, please refer to the original source.
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