The Intrinsic Nature and Purpose of Law — My Case Against Instrumentalism — Jurisprudence, Cambridge Law (Nov 2021)
Essay question: We are sometimes told that to understand law’s nature one must understand law’s purpose. But law does not have a purpose of its own. It is an instrument that serves the purposes of government.’ Discuss.
Legal positivists like Hart usually adopt an instrumentalist view of law: it is a means of social control, useful in securing whatever ends government and officials set for it. I will argue that the statement in question which reflects a Hartian account of law is threadbare since the nature of law is intrinsically connected with moral principles whose purpose is to serve the interests of justice and liberty.
The nature of law in Hart’s view is (1) social constructionist and (2) modal. The law is social constructionist in that it is a set of social facts about the characteristic conduct of officials. The law is modal in that it guides conduct as a system of rules — rules which permit and prohibit certain things (primary rules) and rules about how rules of the system come into existence (rule of recognition), how they can be changed (rule of change), and who can adjudicate upon them (rule of adjudication), all of which are secondary rules. It is not clear, however, how Hart can account for the law’s claim to legitimacy without inquiry into and appraisal of the basis of that claim. It seems self-evident that the critical reflective attitude that Hart ascribes to followers of the law is principally a moral attitude since the disposition to comply with some rule or to object to contravention of the rule by other people all seem to be exercises in moral assessment of the grounds for the assumption that the rules ought to be followed.
To understand the nature of law, we cannot treat it merely as a tool in the hands of the government. As Fuller observed, the law, as something deserving of fidelity, cannot be ‘a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials’. Fuller’s point here is that if we acknowledge a duty to obey the law, the law must in some intrinsic sense be deserving of our loyalty. I’m not persuaded that such a duty could arise from the mere existence of an official practice of identifying valid rules by reference to a morally neutral rule of recognition. To validate and interpret the statute we do so in a moral context since the people who are governed by these rules are moral and independent agents and the rule of law, which is a moral ideal, serves to constrain arbitrary government interference.
As Waldron observed, the fallacy of positivism is that it places ‘exclusive emphasis on the command-and-control aspect of law’ without paying sufficient regard to ‘the culture of argument that [the law] frames, sponsors, and institutionalizes’. We do not merely obey rules or apply the sanctions provided by the law in the event of non-compliance, we engage in adversarial argumentation and ‘elaborate interpretive exercises’ about the moral principles at stake when attempting to apply the rules to cases appearing before us. Both common law adjudication and statutory interpretation involve reasoning from principles and applying enacted rules in different contexts, while attempting to extend rules to novel situations without violating minimum moral standards required by the rule of law.
Hart and Raz attempt to distinguish the nature of law from the ideal of the rule of law: combining the two would undermine their legal positivism. However, Fuller shows that there is law only to the degree that compliance with the rule of law — or Fuller’s principles of legality — is sufficiently observed to allow the law to function as a defence against arbitrary power. The purpose of law is realised to the extent that the rule of law obtains: the consistent and reliable enforcement of legal rules replaces what would otherwise be — in Hobbesian terms — the disintegration of society, a war of all against all. This is what distinguishes the nature of the law from Austin’s ‘gunman situation writ large’: compliance with the rule of law has substantive and moral implications.
Hart objects that Fuller’s classification of the principles of legality amounts to an ‘internal morality of law’. Even if they are principles of ‘good legal craftsmanship’, they are not principles of morality but rather ‘principles of efficacy’. Similarly, Kramer’s draws a distinction between cognitive autonomy and autonomy as a moral ideal: ‘Insofar as a [bank] robber carries out a heist by issuing commands rather than by merely grabbing booty without any assistance from cowed employees, he has acknowledged that his victims are capable of rational deliberation and choice’.
Both objections fail, however, to show a holistic understanding of (1) those subject to the law, (2) the normative aims of government and (3) the moral aspirations that underpin both law as it is and the law as it ought to be. How could and why should the concept of law’s nature end with a merely descriptive account? As Gardner observed, positivism ‘does not provide any guidance at all on what anyone should do about anything on any occasion’ as it attempts to sever a connection between law and morality. A full account of the nature of the law — one that can actually provide guidance to government officials, judges and legal subjects — cannot be divorced from a grasp of the law’s substantive content, which is inevitably imbued with an orientation toward the public good and a commitment to the view that the individuals who are subject to the law are ‘capable of understanding and following rules, and answerable for [rather] defaults’ rather than automatons following ‘a detailed set of instructions for accomplishing specific objectives’ (Fuller).
If the law is not seen to be geared towards the public good, which is a moral value, but is rather oriented toward serving the prudential interests of the powerful, it ceases to be a central instance of the law in the same way that a democracy that only allows white property-owning men to vote is not central instance: it is inherently defective by our moral standards. An exclusively instrumental account of law’s nature neither provides a normatively desirable baseline for self-determination and liberty expected by individuals nor allows a government to fulfil its agenda since rules that obtain publicity and clarity would in all likelihood provoke resistance and such a regime would be unsustainable. A wicked regime — like Nazi law — that drastically departed from due process or resorted to extralegal violence would forfeit genuine status of positive law as law cannot be otherwise defined as a system and an institution whose very meaning and purpose is to serve justice. A purely instrumental approach would result in a low redefinition of law’s nature. That is, it would lower the bar for what can be described by the term ‘law’ to advance the untenable proposition that law is compatible with iniquity.
Hart betrays his own position when he talks about the moral significance of law consisting of general rules (not requirements relating to single actions or single individuals). The position implies the principle of treating like cases alike (even if the criteria of likeness will be merely the general element specified in the rules). One essential element of the concept of substantive justice is the principle of treating like cases alike: ‘This is justice in the administration of the law, not justice of the law. So 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’. Here, Hart seems to acknowledge a necessary connection between law and morality rather than law merely being an instrument in the hands of government since — as Gardner observes — generality is a matter of content and purpose. Fuller’s other desiderata arguably do speak to the law’s purpose, too. A law that is impossible to comply with, for instance, needs to be amended to make compliance possible. Mutually inconsistent laws must be adjusted to make them consistent. A retrospective law has a different content from its prospective counterpart. Stability and generality are a matter of law’s content in terms of its relative changeability and scope. Even ‘clarity’ is not exclusively a matter of linguistic or mathematical precision but instead the determinacy of the relevant legal standards, which may depend on the factual matrices present in case-law rather than statute.
Conclusion
Hart’s jurisprudence, which is generally descriptive and instrumental, is consistent with both good and wicked law: it gives no directions to judges who aspire to obtain the moral ideal of the rule of law. Conversely, Fuller’s jurisprudence shows that while compliance with the law’s internal morality does not in itself guarantee substantive justice it is nevertheless of moral significance as it limits the scope for arbitrary governmental action and curbs statutory interpretation that authorises manifest contraventions of justice. It makes the application of law to particular cases, at least, a matter of reasoned deliberation about how to protect individual rights, which is an inherently moral interpretive exercise. It’s a mode of governance respectful of human freedom and dignity. The essence of legality requires that official interference is regulated by rules that curb resort to unfettered discretionary power.
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