Fuller

Fuller and Hart are night and day on most issues but seem to agree that the intersection of morality has a profound impact on the judicial process. It just happens that for Fuller, this intersection is a critical component of vitality of law and society. But for Hart, morality constitutes something far more pernicious. If law is the host, then morality might be considered the parasite that sneaks its way in and preys upon the health and integrity of law. So, in this entry, I’d like to answer or at least explore what kinds of morals enter and take root once the partition between morality and law is lowered. In other words, will judges call upon “good” morals as Fuller indicates or “bad” morals as Hart cautions, in dealing with penumbra cases? In the contentious arena of the courtroom, which of the two, if indeed any, has the natural edge?

Big questions! I’ll make several observations that I think illuminate an answer but a really thorough answer would be Herculean undertaking. In any case, I think Fuller and Hart disagree about whether bad morals or good ones has the natural edge stems, has to do with radically different assumptions each make about human nature. There’s a strong case to be made that Hart views human nature as relatively malleable and determined by cultural and environmental circumstance. If true, this would explain Hart’s position that bad morals are incorporated into law as easily as good ones. So if humans are not “wired” to resist unjust legal outcomes, then one can easily imagine how a judge would accept and even generously interpret one of Hitler’s totalitarian edicts. In contrast to Hart, Fuller seems to think that what we call “good morals” (e.g., “religious beliefs, common conceptions of decency and fair play”) have more pull on the human psyche than bad ones. So just as Hart takes position that evil goals are as coherent and logical as good one’s, Fuller retorts, “ I, for one, refuse to accept that assumption” later adding that while his view may be indefensible, he believes that “coherence and goodness have more affinity than coherence and evil.” This point of clash, which springs from diametrically opposite conception of human nature is not an easy to resolve.

Certainly in the US, major social and civil rights movements have shaped the moral character of the nation. In the past several decades, morality has informed the judicial process in number of ways, extended rights of privacy to abortion and also equality, in the form of equal protection, to women, homosexuals, and the disabled. So at least in our country, lowering the partition between morality and law has produced a greater appreciation for autonomy. Similarly, if we buy Fuller’s argument, the erosion of morality in the German courts, subordinated autonomy and facilitated the atrocities that were to follow. What these examples ultimately convey is difficult to say. Perhaps we can surmise that Fuller is correct and that judges are indeed wired to incorporate good morals into law and that a preoccupation with separating morality from law has the tendency to override that natural disposition. If that were true, then “good morals” would enjoy a kind of natural advantage because of the structure of human nature. On the other hand, the examples may only demonstrate a coincidence at work and given another time, another place, the inner logic of morality could help society reach goals we now consider evil. Of these two possibilities, I think history favors the former.