The Hart-Fuller Debate at Fifty


2008 marks the fiftieth anniversary of the Hart/Fuller Debate, one of the greatest and the most fruitful encounters in the history of modern jurisprudence. New York University Law School and the NYU Law Review have decided to mark this anniversary with a conference and a special symposium issue of the Law Review. The conference will take place on Friday and Saturday, February 1-2, 2008 * almost exactly the fiftieth anniversary of the publication of the Hart/Fuller exchange in the Harvard Law Review.

H.L.A. Hart was Professor of Jurisprudence at Oxford University from 1954 until 1968. In 1956-57, he visited Harvard Law School, where he taught a class on jurisprudence, participated in a discussion group with Lon Fuller and others, and delivered the prestigious Holmes Lecture at the Law School in April 1957. The lecture heralded the fundamental revision and clarification of legal positivism that was to become the subject of Hart’s greatest book, The Concept of Law, published by Oxford University Press in 1961. It set out a lucid account of the positivist position on the relation between law and morality, it defended positivism against the charge of silent complicity and oppressive legal regimes, and it provided the basis of a new understanding of what was at stake in issues of linguistic indeterminacy and legal interpretation.

Hart had already engaged in debate with Lon Fuller, Carter Professor of General Jurisprudence at Harvard, in their discussion group at the Law School. But after the Holmes Lecture, the differences between them seemed so deep and so important, that Fuller asked for a right of replay to Hart’s Holmes Lecture. His response was published in the Harvard Law Review the pages immediately following Hart’s article. Fuller’s response is also a towering achievement of modern jurisprudence, presaging his great book, The Morality of Law, published six years later by Yale University Press. Fuller insisted that “law” was not a neutral concept, but that it already embodied an inner morality of its own. Regimes that repudiated or persistently violated this inner morality were not really entitled to be called legal systems. Like the Nazi regime in Germany from 1933-45, they made a travesty of law, and jurisprudence needed to be in a position, Fuller said, to denounce that travesty for what it was. For this part, H.L.A. Hart replayed that people more likely to sustain the courage and moral clarity that this situation called for, he said, if we do not assume that nothing called law can be wicked or unjust.

At the conference, we will revisit these themes and consider what has been made of this encounter in the fifty years since the published debate. Eight leading jurists from the United Stated, Canada, and England * Jules Coleman, David Dyzenhaus, Leslie Green, Nicola Lacey, Liam Murphy, Fred Schauer, Jeremy Waldron, and Ben Zipursky, will offer their perspective on the debate, on its enduring influence and on the particular themes that arise out of it.

 

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