Significance_of_kramer-simmonds_debate.docx

KRAMER-SIMMONDS DEBATE: An Answer to Hart-Fuller debate? (Assignment submitted towards the partial fulfilment of the assessment in the subject of Jurisprudence) Date: 15th September, 2015 Submitted To:

Submitted By:-

Mr. S.K. Kaushik

Harsh Mohan

Faculty of Law, NLUJ

B.A. LL.B, Semester III Roll No: 1207

NATIONAL LAW UIVERSITY, JODHPUR SUMMER SESSION JULY-NOVEMBER, 2015

TABLE OF CONTENT INTRODUCTION......................................................................................................................1 HART-FULLER DEBATE.........................................................................................................2 Hart and Concept of Law.......................................................................................................2 Lon L Fuller: Law is like a saw..............................................................................................2 The Debate.............................................................................................................................3 Vehicle in the Park.............................................................................................................3 A Predecessor to Kramer-Simmonds Debate.........................................................................4 KRAMER-SIMMONDS DEBATE...........................................................................................5 Possible positions in this debate:............................................................................................5 Reasons for choosing a possibility.........................................................................................5 Debate 1.................................................................................................................................6 Simmonds view..................................................................................................................6 Kramer’s Response............................................................................................................7 Conclusion..........................................................................................................................7 Debate 2.................................................................................................................................8 Simmond’s Riposte............................................................................................................8 Kramer’s full defence.........................................................................................................9 Conclusion..........................................................................................................................9 CONCLUSION........................................................................................................................10

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INTRODUCTION The debate over whether law has an attachment to morality is not a new one but has existed since the very first thought on jurisprudence emerged. Morality can be roughly described as a set of values common to society, which are normative, specifying the correct course of action in a situation, and the limits of what society considers acceptable. 1 Law can be seen as the state echoing, and seeking to uphold, these values. 2 These descriptions can be seen to be, however, not entirely correct, and the issue of law and morality is undeniably complex. At first there seemed no difference between law and morality as the ancient societies like the Greeks considered a person who follows law to be morally good. Slowly, people realised the difference between what is legal and what is legally right. From here various thinkers started debating over law and morality and soon various thoughts on this aspect emerged. It appears that the schools of thought- the positivists and the naturalists, have been on two sides of this debate. Positivists choose to defend the idea that law has no moral connection whatsoever, while the naturalist believe the contrary. The result of this is various debates between thinkers on this proposition. In this paper, I will be briefly touching upon the HartFuller debate as a predecessor to my actual topic of interest- Kramer-Simmonds debate. I will not highlight or choose a side in this debate but view it from a neutral angle because my actual pursuit is to find whether the debate on Moral Status of Rule of Law can prove the case either for the positivists or for the naturalists. Lastly, I would conclude by holding the outcome of this debate whether fruitful or not, if fruitful then for which side.

1 Marmor, Andrei and Sarch, Alexander, "The Nature of Law", The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N. Zalta (ed.) 2 Ibid

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HART-FULLER DEBATE Hart and Concept of Law In his book, Concept of law, Hart criticised Austin’s theory that law is the command of the sovereign enforced by the threat of punishment while giving a distinction between internal and external considerations of laws and rules. Hart says, legal system is not full of commands but rules. These rules come from the society itself by a chain reaction of exerting pressure. Out of this pressure, emerges a rule. Thus, a rule emerges from members of the society. Enforcement of customs is done by critical comments, that is, by judging each other. Hart called this critical reflective behaviour. Now these rules which have emerged from the society are called primary rules as they are primary in nature. Primary rules show that we come out of a state of nature. When society advances, it makes a new set of rules known as secondary rules. Primary rules are duty conferring while these secondary rules are power conferring. Primary rules become secondary rules when they pass the filter of namely three rules, those are: a) Rules of identification b) Rules for adjudication c) Rules for change Thus for Hart, the key to understanding law’s nature is its modes of operation. Lon L Fuller: Law is like a saw In his book, The Morality of Law, Fuller says that just like we do not understand what a saw is except by reference to its purpose, similarly law’s purpose is central to understanding its 2

nature. For him, law is an institution on a mission. 3 This mission is to subject human conduct to governance of rules.4 According to him, the criteria by which we determine whether law exists are only intelligible if one presupposes that law, by its nature, has the purpose of subjecting conduct to the governance of rules. He calls these criteria ‘desiderata’ or ‘principles’ of legality. The eight desiderata are that there must be: 5 (1) rules (2) which are published (3) prospective and not retrospective (4) with which it is possible to comply (5) intelligible (6) non-contradictory (7) reasonably stable across time and (8) officials must act in accordance with the published rules. For him, if there is too much departure from these criteria then it cannot be said that a legal system is in existence. Thus, once we realise law’s purpose then we will realise that law is in pursuit of a moral aim which would be an important property of law, if true. The Debate The main issue of their debate is moral nature of law: Fuller proposes that the authority of law (partially) derived from its consistency with morality while Hart suggests the other way that law doesn't need to be consistent with morality to establish its authority. On 1958, this debate was published in Harvard Law Review and the divide the positivist and naturalist law philosophy got publicized. Vehicle in the Park Hart insisted that this rule has a core meaning only which is conveyed by its terms. The exception to this rule exists only at penumbra like that of a bicycle or roller-skates. Fuller asks a question that whether the rule excluding vehicles from the park would apply to a group of local patriots who want to mount a pedestal in the park a truck used in World War II, 3 Green, Law as a means, pg. 173 4 Fuller, The Morality of Law, rev’d edn (Yale University Press, 1969), pg. 106 5 Ibid, Chapter 2

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as a memorial. He asks that would this truck in perfect working condition count as a penumbra. Thus, he is trying to make two points, firstly, understanding a rule is a matter of understanding its purpose and secondly, this purpose of a rule can only be understood in the lights of the considerations as to what the rule is there to settle. A Predecessor to Kramer-Simmonds Debate In his review of Fuller’s Morality of Law, Hart was dismissive of Fuller’s claim that Fuller’s desiderata amounted to an inner morality of law but he argued that they were merely principles of efficacy. Simmonds argued that the choice to govern one’s subject through law rather than some other means serves the distinct moral value of preserving for those subjects independence from the will of others.6 This sparked the debate between supporters of Hart and that of Fuller resulting in a further debate between Kramer and Simmonds.

6 Nigel E Simmonds, Straightforwardly False: The Collapse of Kramer’s Positivism, (2004) 63 Cambridge Law Journal 98 -131

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KRAMER-SIMMONDS DEBATE The debate between the two is a continuation of the Hart-Fuller debate as it is over whether there is any connection between morality and observance of Fuller’s eight precepts or desiderata’s. The debate is divide din two parts or questions: (1) Is there any moral point or value in following in Fuller’s eight precepts? (2) Will a wicked ruler seek to follow Fuller’s eight precepts in long term? If the answer to the first debate is ‘yes’, then the ruler won’t just think of the desiderata as a wise piece of advice but he will find himself morally bound to do so. If the answer to the second debate is ‘no’, then it would go on to show that in long term Fuller’s precepts are followed by only morally good rulers and thus, show a connection between his precepts and morality. Possible positions in this debate: Answer to First Debate

Answer to Second Debate

No No Yes Yes

Yes No Yes No

Strength of Connection between Morality and Fuller’s eight precepts None None or weak Weak Strong

Reasons for choosing a possibility 1. Someone who chooses the first possibility will say that there is no connection between morality and Fuller’s precepts. Firstly, the precepts are merely ones of efficacy and useful for governing people effectively via law. Secondly, because of this advantage even an evil ruler will govern his people according to these precepts in long term.

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2. The one who chooses second possibility just like first one will say that there is no connection between morality and Fuller’s precepts. However, he will be more sceptical about it as these precepts might come in the way of the evil ruler to pursue his selfish agenda. Therefore, there is a small connection between rule of law and morality sometimes. 3. The third thinker will be of the view that moral point in giving effect to Fuller’s precepts of legality but also agrees that even a wicked ruler will have sufficient prudential reasons to adhere to Fuller’s eight precepts. Thus, he thinks that there is a weak connection between Fuller’s precepts and morality. 4. The last thinker will be of the opinion that there is a strong connection between morality and Fuller’s eight precepts. Debate 1 Simmonds view Simmonds is of the view that the moral value of adhering to Fuller’s precepts lies in the way that adhering to those precepts guarantees to the subjects of law a degree of independence that they could not enjoy under any form of government. 7 He says that someone who lives under the rule of law has a freedom even though that freedom exists within rule of law. He enjoys a freedom which a slave under a master can never have and therefore someone who lives under the rule of law has no master. It follows that any failures to give effect to Fuller’s precepts are a matter of moral regret – though they might be justifiable when othe moral values are at stake.8 Kramer’s Response His first objection to Simmonds view that adherence to Fuller’s precepts of legality ensures that people who live under the rule of law enjoy independence from the will of the others is 7 Ibid 8Simmonds, Kramer’s High Noon, (2011) 56 American Journal of Jurisprudence 135

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that ‘the rule of law can serve to establish the institution of chattel slavery’. 9 He says that far from guaranteeing people freedom from the will of others, law can be used to take this freedom away as the government could use its legal powers to enslave them. Simmonds responds to this objection by saying that law established slavery is a special case because someone who is made a slave effectively exists outside the law and its protection.10 Conclusion Now the important point is that this argument continues for long and it will be difficult for me to encompass all the replies of Kramer and Simmond to each other’s objections. Therefore, I will cut down this debate short and come to a more recent objection raised in this aspect. Kramer objects that adhering to Fuller’s precepts is both good and evil. 11 The good part of adhering to these precepts is evident but the evil part goes unnoticed by most men. Adherence to Fuller’s precepts is evil because there are some evils which cannot exist without these precepts. Given this paradox, one should drop moral transmissibility thesis and with that the argument that there is moral point or value in Fuller’s precepts. Although Fuller’s supporters can still counter this objection by saying that Kramer is confusing two different forms of social ordering here: managerial direction and law. 12 Thus, it can be easily seen that this debate will stretch as long as there exists at least one supporter on each side.

9 Kramer, Freedom and the Rule of Law, (2009-10) 61 Alabama Law Review 827 10 Simmonds, Law as a Moral Idea, (Oxford University Press, 2008) 11 Kramer, Once more into the fray: challenges for legal positivism, (2008) University of Toronto Law Journal 1 12 Fuller, A Reply to Critics, 207

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Debate 2 Lon Fuller was always sceptical that whether a wicked ruler will abide by his eight precepts in long term because eventually these precepts would get in his way. 13 Simmonds extended this debate over connection between morality and legality and chose to favour Fuller. Simmonds initially argued that a wicked government will inevitably will end up using extralegal force against opponents of the government who have managed to comply with all the directives of the government. To this Kramer argued by saying that a wicked government won’t resort to using extra-legal force because if people know that compliance would still result in punishments then they will see less reason to comply with the law. So in order to maintain law as an effective agent for getting the people to do what the evil government wants them to do, the wicked government will abstain from using extra-legal beatings.14 Simmond’s Riposte He argued that Kramer’s position was straightforwardly false. 15 In a society where even those who obey law might still face having force used against them by their government, your chances that force will be used against you will still be less if you obey the law than you break the law. Kramer’s full defence Kramer responded by arguing that people will be more likely to break the law the less they think they have to lose by breaking the law. 16 Kramer conceded that it might at first seem irrational for someone living under the regime where punishments are pronounced (second regime) even when complying with the law to be more willing to break the law than someone 13 LL Fuller, Positivism and Fidelity to Law – A Response to Professor Hart, (1958) 71 Harward Law Review 630-672. 14 Matthew Kramer, On The Moral Status of the Rule of Law, (2004) 63 Cambridge Law Journal 65-97. 15 Supra Note 6 16 Kramer, Incentives, interest and inclinations: legal positivism defended, (2006) 51 American Journal of Jurisprudence 165

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living under the regime which adheres to Fuller’s precedents faithfully (first regime). This is because whatever your regime may be, breaking the law will obviously increase the chances of punishment. However, he argued that what we can call the less to lose effect is an observable feature of human nature, and means that people living under the second regime will be more willing to break the law than the people living under the first regime. Conclusion Although, one may conclude that Kramer clearly wins this debate by his last counter to Simmonds but a keen observer will see that eventually there is no end to this debate also. There is a possibility that less to lose effect can be made to dwindle into insignificance, and incentives to obey the law maintained, under a truly wicked regime that is willing to engage in extra-legal violence against its opponents. This can be done by making the punishments so harsh that you will still have a lot to lose by breaking the law. Also it can be seen from the history that no evil regime has ever abided by all of Fuller’s eight precepts. Thus, the debate still continues.

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CONCLUSION The debate over morality and legality having any connection or not has existed from times eternal. Whether it is Hart- Fuller or Hart-Dworkin to Kramer-Simmonds, the question remains unanswered. I believe that there will always be people arguing on both sides of the law and morality question. We may call those favouring the proposition that “Law has a bond with Morality” the Naturalist and those opposing it the Positivists because over the years in jurisprudence it is one of the questions which has been debated between the two groups. Clearly, there hasn’t been any fruitful answer to this debate and even if it existed then the two groups would still find some defence to their stand. Thus, it is one of those questions which can never have any right answers. Kramer-Simmonds debate also ended in such confusion as it tried to stretch the Hart-Fuller debate. There is a dead end and simultaneously there is an answer to this debate. It is like the Schrodinger’s cat paradox. Both groups will believe that there exists some right answer to this debate and therefore propound new ides to defend their thoughts. Thus, there is an answer as well as no answer to this question on the Moral Status of Rule of Law. Human mind is such a wonderful inventor that it finds an answer for anything and everything. Thus, it is best to leave such debates open and not force one’s opinion in the pursuit of a right answer. I would like to conclude by saying that it is not important whether one Positivists won or the Naturalists but what is important is to see whether debate led to any relevant research in the field of Jurisprudence or not. Indeed, the debate turned out to fruitful for both camps. Kramer and Simmonds belong to the third generation of Jurisprudential thinkers and the thinkers in this generation have found it difficult to break free of their predecessors and form some new

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thought. I believe the lesson which should be taken from this debate is to forget for a while who won and who lost but instead try to find new questions in the field of Jurispudence.

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