'A Brooding Omnipresence in the Skies'
- Emerson Sayde
- 2 days ago
- 8 min read
"The whole body of law is permeated by two recurring standards of decision: fault and intent."
-- Lon Fuller
In this paper, I will defend Lon Fuller’s account of the 1949 postwar Grudge Informer case and the natural law conception of the vitality of moral consideration in the legal sphere. According to Lon Fuller, there is no neutral way to identify law without interpreting it. In every place that Fuller’s antithesis, H.L.A. Hart, argues for the separation of law and morality, Fuller stands firm that the coherence and efficacy of a system of laws is dependent on it having an end, and, because law and morality are intertwined inextricably, an end towards the good. Because there is a good end, any identification of a law is reflective of that tenet. Therefore, it is impossible for there to exist a distinction between identifying a law and interpreting its meaning; if it is identified as a law, its meaning must entail some form of service towards the common good. The juxtaposed beliefs of this relationship between identification and interpretation permeate the outlook and outcome of every single measure of legality we know. Ranging from the hypothetical ‘No Vehicles in the Park’ law posed by Hart to landmark cases definitive towards entire legal philosophies such as Grudge Informer, engagement with problems of judicial conduct are undying. In this paper, I will prove that the methodology of interpretation that reaches ‘all the way down’ poses much lesser stakes than a legal philosophy which risks moral deficiency and overreliance on the discretion of fallible lawmakers.
Standing appreciated in the study of jurisprudence as a debate beautiful in its simplicity and restraint, the “No Vehicles in the Park’ dilemma is an effective method towards establishing the two theorist’s defining themes, the risks implied by both bottom lines, and the case which ultimately leads to a greater morally advantageous process towards deciding law. The bulk of the debate was spent disputing about the controversy of language and whether a generally positivist or generally natural law approach towards definition and decision in such penumbra cases was more promotive towards the legalistic morality trying to be achieved. Hart, on account of a favorable system of positivist perspective, was eager to draw the line at distinction within legal language far too early; to him, it was by the formation of the rule that an interpretation ought to be considered, and that consideration ended at a basic meaning of the words at hand. To Fuller, this was a diminutive slash in interpretive power when deciding specific cases and a negligence of the essential requisite of studying the deeper core of a rule. Although Hart’s term ‘vehicle’ may have posed an unintended distraction from his greater pleas, Fuller's attention to and altercation with the distinction goes to show the debates existent in the conduct of judicial language and statutory interpretation.
A more realistic point of contention between Hart and Fuller lies in the postwar decision by a German court. Grudge Informer is defined by an issue of fidelity to law and illegal deprivation of liberty during the Nazi era. In 1944, a woman denounced her husband to the German government for supposedly offensive discourse towards Hitler while on leave from the Army. It is noted that she was aware that he was having an affair. These remarks on part of the husband were illegal,
while the woman was under no legal obligation to report them, and he was ultimately sentenced to death. But later when she was prosecuted for bereaving him of his liberty, it was evident that the 1934 ‘informer statute’ was no longer standing in legal or moral conscience, and she was unable to be heard on the defense that she was abiding by the law at the time of her husband's prosecution.
To Hart, regardless of the timeline of legislation and the morally correct figure in the dilemma at any moment throughout, to repeal the original informer statute was to declare that the law formerly in place never held any rectitude despite its previous position being legally valid. The sudden and unprincipled repercussions of an augmentation in statute is the greatest fear, and Hart recognizes that the dilemma at hand is a choice between two unfavorable judicial routes. Despite these dangers, while he shares the belief that she ought to face prosecution even for an act that is only instantaneously deemed morally reprehensible, he functioned under the conviction that the conduct of the woman in a legal sense was wholly disconnected from the morality of her stance. Although it was first Austin who drew on these separations, saying: “A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation” (Austin 12), Hart pleads the same case, finalizing the thought that “We must avoid, if we can, the arid wastes of inappropriate definition, for, in relation to a concept as many-sided and vague as that of a legal system, disputes about the ‘essential’ character, or necessity to the whole, of any single element soon begin to look like disputes about whether chess could be ‘chess’ if played without pawns” (Hart 622). At this rate, the ‘inappropriate definitions’ consist of the attempt to reach out and deem morality or a lack thereof on the basis of penumbra cases that are not aligned with the necessity to the whole, and the vagueness of such an approach is not apparent when the liability of neglecting fundamental precepts of valid lawmaking is being considered. However, for Hart, this is not the case. Too simply, the Nazi laws stood at the time.
To Fuller, the decision of the court should operate as though the Nazi laws never were in place as soon as legislation reached their abandonment, and this is because they were never imposed on grounds that stood the test of valid legal premise, according to natural law. Along with this, natural law requires a tolerance of that which must carefully discern the moment a statute ought to be changed or forfeited, and, with that, the decorum which must follow such an improvement. This forward movement is characterized by a view that considers the intertwined nature of the morality and validity of a law to be constant and unchanging, regardless of the corrections occurring of a naturally evil and unprincipled rule. Therefore, because of the violation of legal principles at play, such Nazi laws were never viably enacted, and “If all Nazi statutes and judicial decisions were indiscriminately ‘law,’ then these despicable creatures were guiltless, since they had turned their victims over to processes which the Nazis themselves knew by the name of law” (Fuller 659). Because of the inextricable nature of morality and law, the decision regarding the case was never protected by a legitimate legal framework.
This distinction between the fabric of the two opposing legal theories is further exacerbated by conflicting ideas of judicial roles; Hart’s belief lies in that judicial discretion is a necessary and inevitable component of deciding penumbra cases, but that such decisions should be made along the rule of law, while Fuller believes these resolutions are based on moral principles already embedded into the nature of legality. With this difference, Hart believes that he can prove that there is no necessary entwinement between law and morality. However, the mere fact that Nazi-era statutes posed a moral culpability that led the courts to contradictory decisions holds no strength to prove this fact; not only were the elements of statute that guided the decision of the courts partially pieced by pre-Nazi laws, but it was these very laws which counseled the judges towards a verdict wherein they abided by the criminal law of an often contradictory dictatorship. Laws so circumspect on a path of defining and punishing a crime deprive a judicial bench of the interpretive process and the questions arisen.
Now, I will expand on an example of a historical statutory decision which was morally opportune in its decision aligned with natural law philosophy. Somersett’s Case (1772, England) is emblematic of the demand for analysis of fundamental moral value when deciding cases. James Somersett, an enslaved man brought to England, was detained by his master, who wanted to ship him back to the colonies. The task of the judges was to determine whether slavery was legally recognized in England, even though no statute explicitly prohibited or authorized it. Without reliance on moral and natural law principles of liberty and human dignity, the judges might have made an unethical choice based merely on the absence of a specific statute. While Hart is in unison with Fuller in the belief that the judges must play a more substantial role in decision than the absence of a law ought to, he is not anxious to assert that “...in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law” (Hart 8). By this statement, Hart defends that the ruling of a law ought to be based on its source or condition of creation rather than its morality. Yet, he fails to make clarity of the conduct that judges ought to follow when the condition or source of the law is entirely invisible, offering only that judges ought to create new legislation in order to bridge the gaps of the ‘open texture’ of the law. However, no amount of new legislation can ever achieve this, according to Fuller. A greater point of supply is crucial to sorting the issues found within the penumbra, and, because of their implementations of natural law principles, although there was no law specifically prohibiting it, it was ruled that the spirit of English law could not justify slavery in this case.
To conclude, I will finalize the meaning of the intertwined nature of identification and interpretation of the law. Although Hart believes in a necessity of ‘standard instances’ in order to achieve any ideal of fidelity to law, Fuller breaks this notion down by demonstrating the impossibility to interpret the words of a statute without knowing their aim. To do this, Fuller poses a scenario in which it is enacted that it is punishable by fine to sleep in a railway station. One man is brought before the judge for quietly falling asleep upright while waiting for a 3am train, while another is presented having come to the railway station with pillows suggesting the intention of sleeping, however never truly achieving that aim prior to punishment. By this example Fuller affirms the issues that follow void interpretation, attesting that, “...we do not proceed simply by placing the word in some general context…Rather, we ask ourselves, what can this rule be for? What evil does it seek to avert? What good is it intended to promote?...We must, in other words, be sufficiently capable of putting ourselves in the position of those who drafted the rule to know what they thought ‘ought to be.’ It is in the light of this ‘ought’ that we must decide what the rule ‘is’” (Fuller 665-6). Here, Fuller agrees with Hart regarding the significance of the initiative intention of a law having been created. Yet, Fuller differs, validating that interpretation alone can neither sufficiently work to decide law and determine fidelity nor be detached entirely from the identification of a law and its greater purpose as a statute.
In this paper, I have drawn on the inextricable nature of identification and interpretation of statues when deciding cases, the role of judges in cases defined by the penumbra, and, most significantly, and impossibility to maintain efficacy in the legal realm without tasking ourselves to ask broader questions of an interpretation that exists beyond the reach of our evanescent bodies alone. The evidence provided within the examples debated by the two thinkers prove that, contrary to Holmes, the ‘inner morality of law’ is not, in fact, ‘a brooding omnipresence in the skies,’ but a basis on which law may be recognized and determined more systematically, and that the reliance is not on metaphysics and chance, but a commonly discoverable law discernible through careful application of preexisting moral convention.
References:
Dyzenhaus, David. SYMPOSIUM the GRUDGE INFORMER CASE REVISITED. nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-83-4-Dyzenhaus.pdf.
Fuller, Lon L. "Positivism and Fidelity to Law: A Reply to Professor Hart." Harvard Law Review, vol. 71, no. 4, Feb. 1958, pp. 630–72.
Hart, H. L. A. "Positivism and the Separation of Law and Morals." Harvard Law Review, vol. 71, no. 4, Feb. 1958, pp. 593-629.
Schauer, Frederick. A CRITICAL GUIDE to VEHICLES in the PARK. www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-83-4-Schauer.pdf
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