Hart fails to grasp the degree to which the internal morality of law which includes transparency effects the external morality of law I.e., the communist paper constitution - not representative of the real system in place - conceals the system from critique that’s Articulating Principles Forcing regimes to articulate principles (Fists vs. Elbows) Hitting someone deliberately with fist or “accidentally” hitting someone with your elbow (same level of damage) If regimes must write and publish their rules, they will need to sit and think about the reasons behind those rules and maybe then think better of them Ex - interrogating suspects Big difference between telling the CIA to find out the “just vs. passing a statute that describes the authorized information” methods of interrogation View of human nature Inner morality has a built in view of human that are capable of being guided by rules Guiding conduct with rules suggest people are responsible and people’s not just rats in a maze - notions of intent People are intelligent - recognize fault People are moral agents Therefore, the picture we have of people (responsible and moral) at the internal morality of law will weigh against having lots of strict liability and instead puts intent and fault at the heart of the criminal law Rule of Law Nazis Attack Hart’s We can imagine persons who adhere to these 8 requirements yet still pursue a Nazi social order so the inner morality of law is compatible it’s with great inequity Hart is making a logical/conceptual point Response Fuller’s engaging in logic chopping and conceptual analysis Hart’s Empirically, there have been of Law in history “Rule Nazis” Hart and other positivists are supposed to be grounded in fact yet he’s approaching this conceptually Finnis’ Thought focus on empirical or conceptual questions, but morality Shouldn’t Would a regime committed to tyranny have any moral reason to adhere to the inner morality of law? Anyone committed to a Nazi level of tyranny has no moral reason to adhere to the inner morality of law No, any adherence would be based on prudential/practical reason like efficiency and not moral Legal Pathology definition Hart’s
Hart fails to grasp the degree to which the internal morality of law which includes transparency effects the external morality of law I.e., the communist paper constitution - not representative of the real system that’s in place - conceals the system from critique Articulating Principles Forcing regimes to articulate principles (Fists vs. Elbows) Hitting someone deliberately with fist or “accidentally” hitting someone with your elbow (same level of damage) If regimes must write and publish their rules, they will need to sit and think about the reasons behind those rules and maybe then think better of them Ex - interrogating suspects Big difference between telling the CIA to “just find out the information” vs. passing a statute that describes the authorized methods of interrogation View of human nature Inner morality has a built in view of human that are capable of being guided by rules Guiding people’s conduct with rules suggest people are responsible and not just rats in a maze People are intelligent - notions of intent People are moral agents - recognize fault Therefore, the picture we have of people (responsible and moral) at the internal morality of law will weigh against having lots of strict liability and instead puts intent and fault at the heart of the criminal law Rule of Law Nazis Hart’s Attack We can imagine persons who adhere to these 8 requirements yet still pursue a Nazi social order so it’s the inner morality of law is compatible with great inequity Hart is making a logical/conceptual point Fuller’s Response Hart’s engaging in logic chopping and conceptual analysis Empirically, there have been “Rule of Law Nazis” in history Hart and other positivists are supposed to be grounded in fact yet he’s approaching this conceptually Finnis’ Thought Shouldn’t focus on empirical or conceptual questions, but morality Would a regime committed to tyranny have any moral reason to adhere to the inner morality of law? Anyone committed to a Nazi level of tyranny has no moral reason to adhere to the inner morality of law No, any adherence would be based on prudential/practical reason like efficiency and not moral Legal Pathology Hart’s definition