The story so far. Herbert Hart was one of the founding fathers of contemporary legal positivism – the doctrine that laws are created through a specialised social practice of setting down (or positing) enforceable norms for behaviour, and are known and recognised as such by their grounding in that social practice. Sociologically speaking, this may sound uncontentious; the key contribution of legal positivism is the lack of any further stipulations as to what the law, inherently, is or what it is (necessarily) for. In any law-governed society (legal positivism argues) there is a system of laws which are recognised as such and an apparatus of roles and procedures for making and amending those laws; and (as Private Eye would put it), er, that’s it. To say that the legal system of Nazi Germany was a bad legal system – on the basis that it facilitated what are almost universally held to be evil and unjust outcomes – makes no more sense than to say that the language spoken by the Nazis was a bad form of German.
Advocates of ‘natural law’ – the theory that there are coherent and discoverable pre- or extra-legal principles, generally based on morality, by which positive law can be judged – have held that this picture needs to be qualified in different ways. In writings from 1958 and 1961, Hart singled out three ways of arguing the connection between natural and moral criteria, on one hand, and positive law on the other, and made some concessions to each of them. I discussed these in the previous post; in this post I’ll put names to each of the ‘natural law’ challenges and sum up Hart’s responses, before looking at David Lyons’s more comprehensive response to one of the three.
Firstly, the Substantive Natural Law position holds that any imaginable legal system – or, perhaps, any imaginable adequate legal system; any legal system functioning as a legal system – will have a certain minimum content: there are certain things that ‘the law’ has always forbidden and always will forbid, murder being the most obvious example. As we saw in the previous post, Hart gave this argument extended consideration and was willing to concede – if the minimum content was defined sparingly enough – that it might be correct. However, Hart was at pains to point out that the minimum content itself derived from the brute facts of human existence rather than from morality. Hart’s definition of the minimum content of law, in terms of obligatory forbearance from exploiting fundamental universal vulnerabilities, is compatible with Kelsen’s austere severance of legal from moral obligations: one could argue, following Kelsen, that the moral obligation not to kill and the legal prohibition of homicide are not only two separate norms, but elements of two distinct systems of norms, each of which is offered as a solution to the problems of coexistence in society. Natural law in this light is ‘natural’ in a Hobbesian sense – it is the law that elevates above the state of nature for the sake of survival (rather than, for instance, underpinning the Aristotelian conditions of human flourishing).
It is possible to draw a connection between minimal substantive natural law and justice; indeed, I did so myself in the previous post. However (I see now), the connection is not necessary. I agree with my earlier statement that “any breach of these minimal forbearances will, by definition, set back the vital interests of some member of society unacceptably”, but not the further argument that “[a]ny individual unremedied breach, or any broader settlement based on leaving a certain set of breaches unremedied, must be called unjust”. Certainly any arbitrarily selective breach of minimal natural law is prima facie unjust, but the injustice here derives from the selectivity. What I needed to show was that a universal and impartial breach of natural law would also be unjust. I don’t think this can be argued; my assumption that it could probably rests on an unstated assumption that a just outcome must be minimally satisfactory to all, together with the assumption that a breach of minimal natural law – even if universally imposed – cannot be minimally satisfactory.
The Procedural Natural Justice position, secondly, holds that there is justice in the correct administration of the law, irrespective of the justice of the outcomes or of the itself – or, conversely, that there is injustice in the maladministration of the law, irrespective (again) of our assessment of the law itself or of the outcomes reached. There is – by design – no connection between our assessment of natural justice in the administration of the law and the content of the law, natural or otherwise. In 1958 Hart referred to rule-based impartiality as ‘natural procedural justice’ and suggested that this was a moral virtue: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”. In The Concept of Law he wrote, more guardedly, of “apply[ing] a law justly” and referred to procedures to ensure impartiality as “requirements of justice”. In other words, Hart’s 1961 formulation withdraws his earlier concession to the ‘procedural natural justice’ position, leaving open two alternative lines of argument: either justice in this sense is a term of art – a technical term for the appropriate administration of those things called laws – or it is a virtue in its own right. Either way, it needs no moral underpinning or endorsement.
Lastly, the (Natural) Morality of Law position suggests that the law as a system – the properties of the laws themselves as well as the way in which they are administered – can be critiqued on moral grounds. The argument here is not merely that it’s a bad thing for laws to be confusingly worded or badly implemented, although it draws strength from that intuition. Rather, the argument is that subjecting society to governance by law is itself a morally good enterprise, and that the particular moral virtues which it embodies can be found – or found to be lacking – in particular legal systems, in individual laws and in acts of law-making. A key concept in this respect is followability: the law is taken to be a system of norms which addresses its subjects as free, rational and responsible for their own actions – and which is the less ‘law-like’ the less effectively it does so (through the use of laws which are unknowable, incomprehensible, impossible to comply with, capriciously applied, etc).
Hart did not address this argument in his 1958 paper. In The Concept of Law he considered it as a technical argument, on the basis that any system of ‘[social] control by rule’ needs to have certain characteristics – ‘[the rules] must be intelligible and within the capacity of most to obey… [so that], for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey’. Might these requirements be taken as rising to the level of morality? Hart’s response is brief and devastating: “if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” In other words, the fact (as Hart saw it) that unjust and immoral outcomes are entirely compatible with a pursuit of a ‘followable’ system of laws makes the idea of ‘followability’ as a virtue irrelevant or frivolous.
To sum up: Hart concedes the argument for Substantive Natural Law, but only after narrowing its scope to the point of guaranteeing mere survival rather than promoting human flourishing. In 1958 he concedes the argument for Procedural Natural Justice; in 1961, however, he situates procedural justice either as technical excellence in the administration of justice or as a (non-morality-based) virtue in its own right. He rejects the Morality of Law altogether, arguing that the merits described thereby are purely the technical merits of a functioning system of rules.
As we have seen, David Lyons’s papers address the second and third of these concessions, from a position which can perhaps best be described as a radically sceptical formalism. Lyons’s key move – made in both papers – is the technical argument, which he raises to a higher level of abstraction than had Hart: he grants that certain features might represent a defect in the law (or its effective administration), but denies that this necessarily tells us anything about justice. On Procedural Natural Justice, Lyons’s bracingly sceptical denial that there was any moral virtue in proceeding by rule or in treating like cases alike would certainly have appealed to Hart; a post-Lyons revision of the argument in The Concept of Law might have stressed the idea of procedural justice as a technical merit of a well-administered legal system, to the exclusion of granting it consideration as a form of justice.
However, I’m not convinced that the larger move is one Hart would have wanted to make. Ultimately Lyons’s argument rests on a rhetorical question “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” As I noted above, considerations of justice come into play in some fields but not others. If we, as a kind of thought-experiment, think of law as a field in which justice may not be involved, there is then no particular reason to think of the administration of law in terms of justice of outcome, or to think of the process of the administration of law in terms of procedural justice. But I think, for Hart, that would have been a formalist move too far. Nor do I think Hart would have seen the need to drive a wedge between the concepts of ‘law’ and ‘justice’, both of which he saw as human, social, culture-bound concepts. Ironically, I think Hart would have sympathised with Lyons’s devalorised version of rule-following as a way of describing the administration of the law, but rejected as idealism Lyons’s unqualified references to justice as a virtue.
Lyons shares Hart’s lack of enthusiasm for the Morality of Law but criticises it from a different angle. While an inadequately followable law can reasonably be seen as defective, Lyons argues, additional information would be required in order to call this defect an injustice. Hart’s position is both weaker and stronger: weaker, in that he takes no definite position on whether Fuller’s ‘morality of law’ is a moral framework or merely a set of technical considerations; stronger, in that he effectively dismisses the debate as not worth having, a difference that makes no difference.
Lyons’s argument, like his position on formal justice, is grounded on his scepticism about the relationship between law and justice, which (as I have argued in both instances) over-reads the moral neutrality of well-formed rules and rule-following. Certainly rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice. This is the case with regard both to practices which may affect the outcome and (perhaps less obviously) practices which cannot – if only because there is no way to be sure, either during or after the process, that any discriminatory practice can be ruled out as not affecting the outcome. To be singled out for special treatment (good or bad) in the course of a court case – even if one has a well-founded confidence in one’s innocence and the fairness of the court – is necessarily, and of itself, to be a party to (procedural) injustice.