Rule of Law

HART AND RAZ ON THE NON-INSTRUMENTAL MORAL VALUE OF THE RULE OF LAW: A
RECONSIDERATION
Author(s): MARK J. BENNETT
Source: Law and Philosophy, Vol. 30, No. 5 (September 2011), pp. 603-635
Published by: Springer
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Law and Philosophy (2011) 30:603-635 Springer 2011
DOI 10.1007/S10982-01 1-9106-1
MARK J. BENNETT
HART AND RAZ ON THE NON-INSTRUMENTAL MORAL

VALUE OF THE RULE OF LAW: A RECONSIDERATION
(Accepted 5 May 2011)
ABSTRACT. HLA Hart and Joseph Raz are usually interpreted as being
mentally opposed to Lon Fuller's argument in The Morality of Law
principles of the rule of law are of moral value. Hart and Raz are though
the 'instrumental objection', which says that these principles are of no m

because they are actually principles derived from reflection on how to
the law to guide behaviour. Recently, many theorists have come t

defence against Hart and Raz, refuting the 'instrumental objection' and
the non-instrumental moral value of conformity to the principles of leg
article argues that although this moral value should be affirmed, the
view is incorrect, because Hart and Raz never understood their argume
the instrumental or 'purposive' value of the principles of legality as denial
moral value, as a close reading of their work shows.

I. INTRODUCTION
Is conformity to the principles of the rule of law of moral valu
L. Fuller is famous for arguing that it is. His discussion
'internal morality of law' has received much attention recent

a number of prominent legal theorists using it as the basis f
claim that law has a necessary connection with morality
certain legal positivists acknowledge that some conformity t
1 See TRS Allan, Constitutional jusmcE: A Liberal Theory Of The Rule Of Law (200
University Press, Oxford, 2003); David Dyzenhaus The Legitimacy of Legality, in A Simpl
Lawyer: Essays in Honour of Michael Taggart (David Dyzenhaus et al. eds., 2009); N.E Simm
as a Moral Idea (2007).
604 MARK J. BENNETT
law principles is necessary if law is to exist,2 a
fulfilment of these principles by a legal sys

Despite this, it is often said that there is a
against Fuller's claims about the moral value
nutshell, that argument states that conformit
the rule of law is not in itself morally valu

ciples merely allow the law to more effect
ultimate goals the law-maker is aiming at. H
identified as having provided the canon
'instrumental objection', thereby showing th

rule of law is of no moral value.4
This article shows that the orthodox inter

Raz's view of the moral value of conformit
incorrect and cannot withstand a close reading
fact, Hart and Raz substantially agree with Fu
moral value, both in terms of the existence
in terms of its basis in human autonomy. Th

be challenged because it is incorrect and mis
both suggestions of controversy where none e
the important differences that remain betw
tion. I begin by briefly setting out Fuller's vie
its moral value in order to show the basic

are engaging with. Next I describe the orth
Hart and Raz's critique of Fuller in greater d
arguments are generally understood in the
that while Hart's critique of Fuller's idea of
law' was trenchant, he never argued that co
ples of the rule of law was of no moral
discussed conformity with the rule of law, he
2 Matthew Kramer, Objectivity aND tHE Rule of Law ch. 2 (200

of Pluralism ch. 1 (2007).
3 Marmor, supra note 2, at ch.l & Andrei Marmor, The Ideal of

Southern California Legal Studies Research Paper No. 09-6, 2008), a
sol3 /papers.cfm?abstract_id= 1 106243 .
4 By 'no moral value' I mean 'no non-instrumental moral valu

mentators have accepted that Hart and Raz think that conform
instrumental moral value where it helps to make more efficacious

substantive goals of the law. As I explain below, instrumental mor
conformity with the rule of law because it depends on the law h
goals. The moral value that Fuller identified and Hart and Raz are
because it exists wherever there is conformity with the rule of la
mental' to distinguish it from 'instrumental' moral value, but I pr
to use 'instrumental' to signal the difference.
HART AND RAZ ON THE RULE OF LAW 605
morally valuable results. Finally, I show that even thou
commonly understood as taking up and clarifying the 'ins

objection', he too never argues that the rule of law is of
value. When his famous article on the topic is read car

becomes clear that Raz saw the rule of law as a moral ideal that
secures human dignity through respecting human autonomy, and

that the arguments in the latter parts of his article are not meant to
deny this. Unfortunately, none of this is appreciated by the orthodox
interpretation of Hart and Raz's arguments, and therefore this article
seeks to put an end to this pervasive misinterpretation.

II. FULLER'S INTERNAL MORALITY OF LAW
Fuller's famous argument is familiar to all students of legal phil
ophy, and it cannot be set out here in more than an outline. Full
identifies an 'internal morality of law', a set of principles that must
fulfilled before law can be said to exist. These principles are generall
referred to today as principles of 'legality' or 'the rule of law'.

recounts the story of King Rex, who, because of his failure to co
form to the internal morality, failed to make law.5 For exampl
Rex's enforcement of his 'law' does not conform to the rules he has
laid down, and he makes his commands extremely ambiguously or

inaudibly.6 This is not just bad law, or bad lawmaking. It is not
lawmaking at all:7
Law, considered merely as order, contains, then, its own implicit morality. This
morality of order must be respected if we are to create anything that can be called
law, even bad law.
the internal morality of law itself.
If we recognize this we can ask, for example,

degree a legal system existed in Nazi Germany
Lon L Fuller, Positivism and Fidelity to Law - A Reply to Professor H
(1958); Lon L Fuller, The Morality of Law 214 (Rev.ed, 1969) at 3
6 Lon L Fuller, Positivism and Fidelity to Law - A Reply to Professor H

(1958).
7 Fuller, Positivism and Fidelity to Law, supra note 5, at 645; Fuller, The Morality of Law, supra note
5, at 38-41.
8 Fuller, Positivism and Fidelity to Law, supra note 5, at 646.
606 MARK J. BENNETT
How much of a legal system survived the general de
all forms of social order that occurred under Nazi ru

tions this mutilated system had for the conscientiou
under it.
Hart's mistake, Fuller argues, is to think tha

status of Nazi law as law must be Gustav Ra
unjust law is not law.9 Radbruch, a German ju
the Nazi rule, argued that law that reach

injustice was not law. Hart directed his ar
position, which in Fuller's view resulted in H

idea that law that disregards the internal m
really be said to be law.10 The Nazis' resor
secret laws, to the disregard of the law by th
the perversion of the law by those interpret

down in the internal morality of law.11 Such
merely mean that the law is extremely bad
at all:12
To me there is nothing shocking in saying that a dictatorship which clothes itself

with a tinsel of legal form can so far depart from the morality of order, from the
inner morality of law itself, that it ceases to be a legal system ... [I]t is not hard for
me, at least, to deny it the name of law.
Conformity with the principles of the rule of law is a condition of the
existence of legal system.

Fuller elaborated on these principles in The Morality of Law, noting
that they require that laws should be: '(1) general; (2) [promulgated];
(3) prospective, not retroactive; (4) clear and understandable; (5) free
from contradictions; and they should not (6) require what is

impossible; (7) be too frequently changed; finally (8) there should be
congruence between the law and official action'.13 Failure to conform to these principles 'does not simply result in a bad system of
law; it results in something that is not properly called a legal system
9 Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law (1946) 26 Oxford J. Legal Stud. 1
(2006V
10 Fuller, Positivism and Fidelity to Law, supra note 5, at 650.

11 Id. at 650-655.
12 Id. at 660.
13 As concisely stated by Hart: HLA Hart, Essays n Jurisprudence aND Philosophy 347 (1983).
at all'.14 In Fuller's view, total disregard for the intern

incompatible with the existence of law.
Fuller also further explained why these principles a

valuable: they maintain 'a kind of reciprocity between
and the citizen. . . Government says to the citizen in effec
the rules we expect you to follow. If you follow them,

assurance that they are the rules that will be applied
duct'".15 Reciprocity therefore means that the governm
the rule of law and, in return, citizens obey the law.16 Fu
that this reciprocity was the basis of the social practic
actions that were necessary to create a flourishing, w

order. The principles of the rule of law are the found
relationship of reciprocity, and they are built on an 'im
man': 'man is, or can become, a responsible agen
understanding and following rules, and answerable for his
Law is an enterprise that respects people's dignity as self-
agents, not a 'one-way projection of authority'.18 Ful
standing of the ideas of reciprocity and autonomy is comp
the purposes of this article we can sum it up by saying
of law is morally valuable because it allows people
advance what behaviour the government demands of

make plans secure in the knowledge that those rules w
to their conduct.
III. THE ORTHODOX INTERPRETATION OF HART
AND RAZ'S CRITIQUE OF FULLER
Fuller's view is often challenged by saying that his idea of
internal morality identifies principles of effective law-making, rat
than principles that are of any moral value. As Marmor pu
'Some prominent legal philosophers . . . maintain that the value

associate with the rule of law are not moral values; they do not
14 Fuller, The Morality of Law, supra note 5, at 39.

5 Id. at 39-40.
16 For further discussion of Fuller's ideas of reciprocity and autonomy and application to a real s
situation, see Colleen Murphy, Loti Fuller and the Moral Value of the Ride of Law 24 Law & Phi
17 Fuller, The Morality of Law, supra note 5, at 162.

18 Id. at 207.
608 MARK J. BENNETT
the law good in any moral-political sense,

good'.19 This argument that the rule of law
value, but only functional or instrumental valu
rejected, with many commentators now sid

his critics on this point. For example, MacC
vious view that conformity with the rule o
tral':20
At one time, I was inclined to agree with H.L.A. Hart that Fuller's principles, even
if in some measure essential to the existence of legal systems as systems of rules,
are merely technical requirements of legal efficiency, not any sort of 'morality'.
For they appear to be in themselves morally neutral. . . . [However, a] claim (such
as Hart makes) that legality is mere efficiency could very properly be disputed[.]
Similarly, Waldron has recently argued that Hart's response to

Fuller's views on the rule of law evaded a proper examination of the
connections between the rule of law and the concept of law, and of
the moral value of the rule of law.21 Waldron argues that Hart was
not completely mistaken in his understanding of the moral value of
the rule of law, but that he was equivocal and intellectually dishonest: Hart sometimes acknowledged the rule of law's moral value,
but sought to downplay or deny it elsewhere because of the threat
that it posed to his legal positivism.22 The argument is that Fuller got
something right that legal positiviste ought to recognise rather than

deny for the sake of some dogmatic version of the thesis that law has
no necessary moral value.23 Alongside Hart, Joseph Raz is supposed
19 Andrei Marmor, The Ideal of the Rule of Law 5 (University of Southern California Legal Studies
Research Paper No. 09-6, 2008), available at http:/ /papers.ssrn.com/sol3 /papers.cfm?abstract_id=
1106243.
20 Neil MacCormick, Natural Law and the Separation of Law and Morals, in Natural Law T
Contemporary Essays 122-124 (Robert P George ed., 1995).
21 Jeremy Waldron, Positivism and Legality: Hart's Equivocal Response to Fuller 83 N. Y. U. L. Re
(2008).
22 Waldron is self-admittedly 'hard' on Hart, accusing him of having 'honest' intellectual inclinations
to agree with Fuller on the morality of legality, but deliberately (and intellectually dishonestly) seeking
to hide this: Id. at 1159. He also argues that 'Hart's treatment of Fuller gives standards of analytic clarity
in legal philosophy a bad name'. Id. at 1157.

Jeremy Waldron Hart and the Principles of Legality, in The Legacy of HLA Hart 60 (Matthew
Kramer et al, eds. 2008): 'For [Hart] the issue was a defensive one, to block a real or imagined assault
upon the Maginot line of positivist jurisprudence - the separation of law and morality'. See also
Simmonds, supra note 1, at 70-71. Some legal positiviste deny their allegiance to a complete denial of
any connection between law and morality - Joseph Raz, Practical Reason aND Norms 165-70 (2d ed.
1990); John Gardner, Legal Positivism: 5 Vz Myths 46 Am. J. Juris. 199 (2001); Leslie Green, Positivism and
the Inseparability of Law and Morals 83 N. Y. U. L. REV. 1035 (2008).
to offer an equally powerful denial of the moral value of the rule

law in his noted essay on 'The Rule of Law and Its Virtue'.24
The argument that Hart and Raz are commonly said to mak
runs as follows. The rule of law is not, in itself, of any moral value: it
is a set of 'instrumental' or 'functional' principles that allows law

more effectively and efficiently perform its function, that function
being the guidance of behaviour through general norms. All
instruments or tools are used to achieve certain ultimate ends. A
instrument's function is the specific means by which it achieves i

end. An instrument's instrumental or functional virtue is that set
attributes or principles that best allows it to perform its function. Fo
example, a knife is an instrument that has the function to cut. Th

ultimate end to which it is put is to separate some physical matte
Therefore, the instrumental virtue of knives is sharpness, for that is
what allows the knife to separate matter effectively.25 We u
instruments such as knives and law to pursue certain ultimate aim
through particular means or ways related to the function of the

instrument. In other words, the instrument furnishes us with a w
of achieving a goal, and its instrumental virtue tells us what the

instrument should be like if it is to achieve that goal effectively
through the use of that instrument. If you want to rule through law,
you look for different instrumental virtues than if you want to rule
through terror.
On this instrumental view, law's function is to guide huma

behaviour by general norms or rules. The virtue that allows law
best achieve its function is 'formal legality', the principles of the rule
of law - in Fuller's terms, conformity to the principles of the intern
morality of law. The internal morality identifies those principles that
make law best perform its function as an instrument, so as
effectively and efficiently achieve whatever substantive end or go
to which it is directed.26 What Fuller identifies, on this view, are the
principles that make law best achieve its function of guiding hum
24 Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law (1979).
25 The choice of which instrument to use and its instrumental virtue all depends on one's ultim
ends: if one is ultimately trying to separate a tree from its stump, a sharp knife is not effective.
should use an axe or a saw, which have their own particular way of 'cutting' and some additional
distinct virtues - heaviness and rigidity for the axe, lightness and flexibility for the saw - beyon
sharpness: Jeremy Waldron Why Law - Efficacy, Freedom, or Fidelity? 13 Law C Phil. 259, 261-262 (19
HLA Hart, Essays n Jurisprudence aND Philosophy 347 (1983); Ronald Dworkin, Philosoph
Morality and Law - Observations Prompted by Professor Fuller's Novel Claim 113 U. Pa. L. Rev. 668,
(1965).
610 MARK J. BENNETT
behaviour by rules, and therefore allow law
whatever ends that the lawmaker is aimi

morality should be avoided except at the
ultimate ends that are being pursued. There

cutting vegetables and cutting people,27 and
conduct to achieve benevolent goals and ma
conformity to the rule of law is of any moral
the substantive aims being pursued, not
value. If the aims of the law are good, then co
law will aid the efficacious achievement of

aims, and therefore 'instrumental' moral v
such conformity. But this moral value is conti
put to good substantive purposes, which me

the rule of law does not necessarily secure a
Any suggestion that there is some 'non-ins

inherent in law and its instrumental princ
rather than clear thinking. This line of argum
appropriate counter to Fuller's assertions of
might trouble legal positivism's general rej

connections between law and morality.
This interpretation, attributing to Hart an
mulation of the argument against the moral v
does not sit at the margins of our present d
law. In fact it is the orthodox interpretation o

as can be seen in a number of textbooks and ar
thought that Hart was 'intent on maintai

principles of legality represent nothing
27 There is also a difference between cutting people to harm the

28 See also Brian Bix, Natural Law: The Modern Tradition, in The
aND Philosophy of Law 81 (Jules Coleman & Scott Shapiro eds., 20
Natural Rights 274 (1980); Evan Fox-Decent, Is the Rule of Law Really
27 Law C pHiL 533, 537, 559-560 & 567; J W Harris, Legal Ph
Kavanagh aND John Oberdiek Arguing About Law 178 (2008); Andr
Limits 23 Law C Phil. 1, 38-39 (2004) & Marmor, supra note 3, at 5; C
Moral Value of the Rule of Law 24 Law 8C Phil. 239, 246-249 (2005); J
Connection Between Law and Justice (2008) 27 Law C Phil. 1, 21-23;
fn 26 C N E Simmonds, Central Issues n Jurisprudence (3d ed. 20
Fuller 37 (1984); Brian Tamanaha, The Perils of Pervasive Instrume
Tilburg University 46-47, (Vol. 1, 2005), available at http://ssm.c
note 21 C Waldron, supra note 23, at 76.
efficiency for the attainment of governmental aims'.29 B
Fuller's theory was beset by 'an argument frequently m

that his "principles of legality" were amoral solutions
efficiency'.30 Similarly, George has argued that Raz pursu
line of argument to deflate Fuller's claim that the el
rule of law constitute an internal morality... Raz sugg

rule of law is a purely instrumental, rather than any s
good'; he goes to say that Hart and Raz 'refuse to
requirements of the rule of law any... more-than-me
mental value'.31 This is not a view limited to juri
prominent constitutional law textbook states that 'Ra

linkage between the rule of law and morality'.32
Additionally, this argument has been the basis of a
detailed recent analyses of the moral value of the r
prominent journals of legal philosophy. For example,
article, Marmor states:33
These conditions [of the rule of law] which the law must meet in or
as law, regardless of its specific contents, Fuller argued, are valuabl
in that they instantiate certain moral virtues, and therefore rend
form alone, morally valuable. H.L.A. Hart and Joseph Raz respo
virtues of the rule of law are merely functional values, not moral o
sharpness of a knife, which makes the knife a good one, so the ru
make the law good, but only in terms of its functioning as a m

control. Functional good, Hart and Raz argued, must not be conf
value.
Similarly, Murphy, in a recent discussion of the rule

value, observes that 'It is often argued that the rule
instrumentally morally valuable, valuable when and t
29 Lon L Fuller, The Morality of Law 214 (Rev.ed, 1969); see generally 200-219.
30 Brian Bix, Jurisprudence: Theory aND Context 82 (4th ed. Carolina Academi
1 Robert George, Reason, Freedom, and the Rule of Law 46 Am. J. Juris. 249,
therefore must think that Raz's position is in opposition to the following statem
requirements of the rule of law is not a morally neutral matter. . . rulers or officials h
inasmuch as these reasons are generally conclusive, a moral obligation to respect the r
rule of law'. 252.
32 HlLAIRE BARNETT, CONSTITUTIONAL aND ADMINISTRATIVE LAW 79 (5* ed. 2004).
33 Andrei Marmor, The Rule of Law and its Limits 23 Law C Phil. 1, 38-39 (2004). See also Andrei
Marmor The Ideal of the Rule of Law (University of Southern California Legal Studies Research Paper No.
09-6, 5 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1106243: 'Some prominent legal philosophers... maintain that the values we associate with the rule of law are not moral
values; they do not make the law good in any moral-political sense, but only functionally good'.
612 MARK J. BENNETT
that a legal system is used to purse morally

labels the view that 'respecting the rule of
non-instrumental moral significance' the 'R
on this view, provides the paradigmatic anti
that conformity to the principles of the rul
moral value. Clearly, the orthodox reading o
they oppose Fuller by denying that conformity
any inherent moral value.

It is important to understand exactly what
to claim about the rule of law's moral value. The reference above to
'instrumental' and 'non-instrumental' moral value is necessary to

distinguish between two ways in which conformity to the rule of law
could be seen as morally valuable.36 It is often said that Hart and Raz
think that the only moral value that conformity to these principles
can possibly secure is the efficacious achievement of morally valu-
able substantive aims of the law. This would be moral value secured
'instrumentally', and it would not apply where the substantive goals

of the law were not morally valuable: as Murphy puts it, 'When the
system's aims are morally good, then the rule of law is morally
valuable in virtue of its role in promoting these aims. When the
system's aims are immoral, however, the rule of law has no moral
value'.37 Hart and Raz are said to acknowledge the instrumental
moral value of the rule of law, but not any other kind of moral value.
In contrast, Fuller clearly thinks that conformity to the rule of law
necessarily creates 'non-instrumental' moral value - value unrelated

to the substantive aims of the law - because such conformity means
that the legislator is creating law that respects people's autonomy.
The moral value that the rule of law secures is not generated by the
more efficacious achievement of the good substantive aims of the
law (instrumental moral value), but by the very fact of conformity to
Fuller's principles (non-instrumental moral value). Hart and Raz

clearly think that the rule of law is of instrumental moral value; what
most commentators mistakenly argue is that they deny that it is of

non-instrumental moral value. As stated earlier,38 1 will use the terms
34 Colleen Murphy, supra note 16, at 239.
35 Id. at 240.
This terminology is used by Colleen Murphy, supra note 16.

37 Colleen Murphy, supra note 16, at 246.
See supra, note 4.
'moral value' and 'non-instrumental moral value' intercha

refer to moral value necessarily generated by conformit
principle of the rule of law, and 'instrumental moral value' t
moral value contingently generated when the rule of law

to the achievement of morally valuable substantive goals
In the terms introduced above, this article challenges t

held view that Hart and Raz deny the rule of law's non-in
moral value. It shows that Hart and Raz both agree wi
view that conformity to the principles of the rule of law

instrumental moral value. For Hart and Raz, conformity
value for essentially the same reasons as for Fuller: conf
the principles of the rule of law allows lawmakers to resp
dignity by respecting people's autonomy, which is possi
the lawmaker creates law that allows people to plan their
not have those plans unreasonably frustrated. Neither the
the rule of law's value to its functional or instrumental valu
orthodox interpretation suggests. Hart clearly identifies
sons for conformity with the rule of law and Raz is adamant
rule of law is a political ideal and a moral virtue. In both

are referring to non-instrumental moral value. Unfortun
are almost always presented as denying this. If we are to
analysis of the rule of law, this misattribution will have
Hart and Raz do make arguments that seem to deny t
formity with the rule of law is of non-instrumental m
otherwise, it would be mysterious why prominent legal p
would think they held this position. Hart and Raz are leg
iste, and are thus supposedly anxious to deny any necess
nection between law and morality.40 More importantly,
argue that the rule of law is of instrumental value. Hart
designating the principles of the rule of law as a 'morality
distinction between purposive action and morality,41 and
conformity with the rule of law is compatible with iniqu
argues that the rule of law is an 'instrumental' virtue of law
out principles that make law better fulfil its function o
39 I take each of these terms to refer to the same thing: what is required for somethin
knife, etc. - to best achieve its purpose or function.
40 But see, supra note 8.
41 HLA Hart, Essays n Jurisprudence aND Philosophy 350 (1983).
42 HLA Hart, The Concept of Law 207 (2d ed, 1994).
614 MARK J. BENNETT
human behaviour.43 Because Hart and Raz s
the rule of law, many have thought that they
to the principles of the rule of law has any

value. On this reading, Hart and Raz glimps
rule of law, but shy away from explicitly a
such an acknowledgement supposedly contr
tivist commitments. In other words, Hart a
disingenuous or wilfully blind to the implicati
non-instrumental moral value, for they clea

value, but fail to acknowledge the problem
article shows that this is not an accurate in
arguments: Hart and Raz agree with Fuller
rule of law is generally morally valuable be
value, and they do not think this is inconsisten
legal positivism.
IV. HART'S 'PURPOSIVE' CRITIQUE
Hart's critical review of The Morality of Law

statement of the instrumental objection. H
the principles as an 'internal morality' of law
preferred to use the conventional design
legality'.45 He saw Fuller's 'internal morality
craftsmanship' that state 'what is necessary fo
of the purpose of guiding human conduct by

are as suitable for achieving good aims as w
'neutral as between good and evil substantiv
Fuller's failure to make the distinction bet
and morality. He argues that we should not
principles that best allow an instrument or
purposes a 'morality', for then we would h
was an morality of, for example, poisoning.4
43 Raz, supra note 24, at 224-226.
44 This view has been suggested to me by David Dyzenhaus. S
Waldron, supra note 21, and specifically at 1159, stating that Hart go
agree with Fuller rather than to refute him, and that Hart 'take
positions.
Hart, supra note 13, at 347.
46 Id. at 347.
47 Id. at 351.
48 Id. at 350.
the existence of internal principles guiding the efficac

ment of a purpose with a morality.
Hart's argument is understood in the literature as m
instrumental objection: because the principles are d

reflection on the instrumental virtues of law, they
valuable only where they assist the law to achieve good

aims more efficaciously. Fuller himself attributed this
saying that Hart's arguments seek to show that 'the al
morality of law is merely a matter of efficacy'.49 In
because Hart argues that the rule of law is instrumen
and not a morality, he denies that conformity with its pr

non-instrumental moral value. While this characterization of Hart's
arguments is commonly repeated, unfortunately it is only possible

on the basis of reading certain passages from Hart's review incorrectly and out of context. It is clearly incorrect when the review is
read carefully as a whole. It reads too much into Hart's arguments
about the difference between purposive activity and morality, and
neglects other passages that clearly show that Hart denied that the
principles of the rule of law were morally neutral or that conformity
with them is generally of no non-instrumental moral value. This

view also neglects the other two key statements of Hart's position,
which show that he accepted the view that the principles do secure
non-instrumental moral value despite the fact that they are at the
same time conditions for the efficacy of law. On the basis of these
latter two statements, Waldron says that Hart was equivocal about
the rule of law's moral value, and Simmonds states that it is 'unclear
whether Hart is an enemy or a friend' of Fuller because Hart 'saw
the dangers ahead' of acknowledging the existence of moral value in
the law 'and hesitated'.50 These are accusations of intellectual dishonesty against a theorist who championed clarity and accuracy.
They are not warranted, because while Hart's arguments about the
rule of law were a very small part of his scholarly concern and
output, they were neither unclear nor inconsistent.51 Hart was
clearly a 'friend' of Fuller in terms of our present inquiry, in that he
49 Fuller, The Morality of Law, supra note 5, at 200-201.
50 Waldron, supra note 21; Waldron, supra note 23; N E Simmonds, supra note 1, at 78.
51 Cf Waldron's view that Hart was 'all over the place' Waldron, supra note 21, at 1160 and
Simmonds' view was that it is unclear what Hart thinks about this question Simmonds, supra note 1, at
69-78.
616 MARK J. BENNETT
denied that conformity to the formal prin
only a matter of purposive effectiveness, a
non-instrumental moral reasons for suc

are as follows.
To begin, in his review of Fuller's The Morality of Law, Hart

nowhere makes the instrumental objection that conformity to the
rule of law principles is only of instrumental value and therefore of
no moral value. As we have seen, he does say that the principles can
be seen as instrumental - in Hart's terms 'purposive' - principles of
efficacy and therefore as morally neutral between just and unjust
ends. As such, they are not in themselves a 'morality' setting out a
value of ultimate importance in human life. But rather than denying
that conformity with the principles of rule of law is morally valuable,
here Hart is taking issue with what he sees as an inapt characterization of the principles of the rule of law as principles that constitute
'a morality'.52 A morality is a general theory that tells us what

actions we ought to value and what duties we owe to one another,
by reference to some ultimate value of human life. Fuller's principles
are not a morality, even though they do secure things that are of
moral value from the perspective of certain moralities, for example
those moralities that value human dignity and autonomy.
Furthermore, Hart fears that the characterization and labelling of
these principles as a morality obscures their equally important aspect, that they are instrumental principles of the law. They make the
law better achieve its purposes. This means they are serviceable for
immoral ends, and that there are prudential reasons for rulers to
comply with them. This seems like the instrumental objection, and
this is how most theorists interpret it.53 For example, after close
analysis of Hart's review of Fuller's book, Simmonds finds that Hart
insisted 'that Fuller has no warrant for treating his eight desiderata as
in any sense "moral"'.54 But this is not what Hart said. His argument
was that the principles of the rule of law are primarily derived from a
reflection on what makes law effective in guiding behaviour.

However, this does not mean that fulfilment of these principles is of
52 This is essentially the same argument put forward by Robert S Summers, Professor Fuller on
Morality and Law 18 J. Legal Educ. 1, 24-27 (1965).
53 See the materials set out above in note 32.
54 Simmonds, supra note 1, at 72. See also 74, noting Hart's 'apparent suggestion that the compatibility of Fuller's eight desiderata with wickedness shows that those desiderata are not constitutive of
any moral virtue in law'.
no non-instrumental moral value. All it means is that t
morality. Hart says that classifying rule of law principles
morality breeds confusion'.55 This is not because conf

the principles is of no moral value. Hart's argument i
Fuller labels an 'inner morality' is derived 'not from
justice or other "external" moral principles relating
substantive aims or content, but [is] reached solely throug
consideration of what is necessary for the efficient ex
purpose of guiding human conduct by rules'.56 Seen fr

spective, the principles make law as an instrument bet
purpose or function; they are not a morality, and are n
in terms of their moral value. The knife analogy
understanding this. Although sharpness is the purposi
mental virtue of knives, this does not mean that s
morality or is morally valuable. Sharpness just allows a
or most efficiently fulfil its function of cutting. Star

function of knives being to cut, we can derive the in
virtue of sharpness; starting from the function of
behaviour, we can derive the instrumental principles o

law. To be able to say that principles derived from an
perspective are also of non-instrumental moral value, w
to move outside this narrow perspective; we would hav
independent ideals of morality - such as human dignit
utility or happiness - and we would have to show how c
the instrumental principles serves these values.
Therefore Hart's main objection to designating the p

internal morality of law' is that 'it perpetrates a conf
two notions that it is vital to hold apart: the notions
activity and morality'.57 Simmonds states that it us un
this argument is meant to show that 'we cannot infer the
an activity from its purposive nature, or whether he
that Fuller's eight desiderata of legality are in fact simple
efficacy that are devoid of any moral status'.58 Howev

that Hart's point is not the latter one that the principles
law are in no way morally valuable, or do not 'have a

55 Hart, supra note 13, at 347.
56 Id. at 347.
57 Id. at 350.
58 Simmonds, supra note 1, at 76-77.
618 MARK J. BENNETT
with morality', as Fuller puts it.59 There is no
the review that denies that conformity with

erally of non-instrumental moral value. Inst
the derivation of the rule of law principles f
he terms the purposive (in other words, inst
principles of law-making means that they sh

as a morality. Purposive analysis identifies
instrument or practice to best or most efficien
tion. A knife's instrumental principles inclu

does not make sharpness a morality. Purpos
morality. We can only analyse their moral
the purposive perspective and into the pe
morality.60 This is made clear in this passage

What makes a morality of aspiration into a morality is
guided by nonperemptory indicative principles toward
end is some ideal development of human capacitie
ultimate value in the conduct of life. Only if the pu
conduct to the governance of rules, no matter what the
an ultimate value, would there be any case for classif

making as a morality[.]
In saying this, Hart does not deny that the p

law might be of non-instrumental moral val
that purposive principles do not in themselv
usually call a morality,62 such as a deontolog

virtue morality, that would tell us what we o
other words, the purported 'morality of

general theory of moral values or princip
decisions or judgments. In fact, one must re
order to show that the rule of law principles ar
argues that Fuller is led by his mistaken vie
constitute a morality to try to determine whet
of duty or a morality of aspiration, whereas
ther.
" Fuller, The Morality of Law, supra note 5, at 200.

61 Id. at 351.
62 See abo Ronald Dworkin The Elusive Morality of Law 10 Vill. L. Rev. 623, 637 (1965): 'I differ with
Fuller only in denying that the very abstract canons he has produced ... in and of themselves are
principles of. . .morality'.
Hart's understanding of what constitutes a mora
contested, but in any case Hart does not deny that subj
conduct to the guidance of rules can be morally valuab
in conformity with the rule of law. Although Hart d

Fuller's principles should be seen as 'morally neutral',63
efficient instrument'64 when viewed from the perspectiv
law as effective an instrument as possible, this does n
conformity with these principles is generally morally neu
a matter of instrumental efficiency. Conformity to th
are of non-instrumental moral value, even though

moral principles. As Summers put it:65
A way to violate a moral principle is not a moral principle. In th
conditions and circumstances, we could violate a moral princ
looking out a window. But we should not be led by this to say that t
principle against looking out of windows.
This is Hars point too: rule of law principles are not

morality, but conformity with them will generally
valuable according to some other morality, and therefo
a law-maker is to conform to their moral obligations.
terms, these principles have 'contingent moral significanc
adamant that conformity with rule of law principles d

have non-instrumental moral value, as is evident in his
Fuller s suggestion that if one did not consider the princip
internal morality of law, one would have no moral

violations of those principles.67 He asks:68
Why, to take the simplest instances, could not writers like Benth
who defined law as commands, have objected to a system of
wholly retroactive on the ground that it could make no contrib
happiness and so far as it resulted in punishments would inflict u

Why should not Kelsen or I, myself, who think law may be profit
system of rules, not also explain that the normal generality of law
63 MacCormick, supra note 20, at 122.
64 Finnis, supra note 32, at 274.
65 Summers, supra note 70, at 27.
66 Waldron, supra note 21, at 1165: 'If [the positive moral difference the observance
of legality makes] were held to be true simply because the properties of a system of r
observance of the principles of legality happened to be properties that other mor
morally significant, then a legal positivist might be willing to live with that. We can c
moral significance'.

68 Id. at 356-357.
620 MARK J. BENNETT
only for reasons of economy but because it will enab
future and that this is a powerful contribution to hu
Hart rejects what he characterizes as Fulle
other approaches to jurisprudence',69 which

a suggestion that the only way that the pri
value is if we consider them to be an intern

Hart rejects:70
The difference between the author and those he criticize
activity of controlling men by rules and the princip
efficiency are not valued by the latter for their own s
them with the title of "a morality." They are valued so
to human happiness or other substantive moral aims
Hart thus argues that, while the principles

morality', conformity with them is general
moral value due to its contribution to huma
We therefore must view the formal princi
tives. From one perspective - that of a lawm
her goals - they are principles of purposive
that of those subject to the law - they gene
mental moral value through increasing huma
Indeed, Fuller himself recognises thes

acknowledging that a ruler has prudential
the formal principles.71
This idea of a dual perspective is found

evidence that Hart thought that conform
principles was generally of non-instrument

being required for the efficacious performa
1967, two years after his review of The Mor
lished an encyclopaedia essay on the philosop
amongst other things a discussion of the 'cr
might label 'normative', 'justificatory', or 'e
Within this discussion there is a short anal
'procedural justice', or 'the rule of law'. Here
Id. at 356.
70 Id. at 357.
71 Fuller, The Morality of Law, supra note 5, at 96. Dworkin argues that Fuller 'moves from the
language of strategy to the language of morals without the slightest caesura of transition'. Supra note 13,
at 670.
to observe these requirements may 'cause both injusti

ery'.73 The requirements he describes are essentially Fu
ples, which 'define the concept of the rule of law'.7

describes the dual perspectives from which the princi
viewed, making clear that the satisfaction of non-instrum
value sits alongside its instrumental or efficacy value:75
These requirements and the specific value which conformity with t
laws may be regarded from two different points of view. On the

maximize the probability that the conduct required by the law w
coming, and on the other hand, they provide individuals whose fre
by the law with certain information and assurances which assist th

their lives within the coercive framework of law.
The principles are both requirements of efficacious governance by

rules, and at the same time of moral value to those subject to those
rules. 'This combination of values' is described by Hart through the
example of the requirement of generality and promulgation:76
[G]eneral rules clearly framed and publicly promulgated are the most efficient
form of social control. But from the point of view of the individual citizen, they
are more than that: they are required if he is to have the advantage of knowing in
advance the ways in which his liberty will be restricted in the various situations in
which he may find himself, and he needs this knowledge if he is to plan his life.
Here Hart again recognizes the non-instrumental moral value of

subjecting human conduct to the governance of rules that conform
to the rule of law principles: such conformity allows people to plan
their future, and to rely on the rules they use to do so, which is very
similar to Fuller's reciprocity and autonomy arguments for their
moral value.
Hart's position is made even more clear by the way that he deals
with wicked law, which he had previously used as the basis of his
dismissive comment in The Concept of Law that the rule of law

principles are 'unfortunately compatible with very great iniquity'.77
Now that he has described in more detail the moral value that is
secured by conformity to the principles, he is forced to make his

" Id. at 114.
74 Id. at 114.
75 Id. at 114-115.
76 Id. at 115.
622 MARK J. BENNETT
cautionary point in greater detail as well.

position that puts him in the company of
the moral value of the formal rule of law
Care must be taken not to ascribe to these argum
prove. Together they amount to the demonstration
pursue need the various protections and benefits w
the above requirements of... procedure can effec

man, laws conferring these protections and bene
price to be paid for them in the form of limitation
freedom will usually be worth paying. But these a
not intended to show, that it will always be reason
man to obey the law when the legal system provid
in other ways the system may be iniquitous: it m

protections of law to a minority or slave class or
injustice.
Hart thus argues that conformity to the rule of law principles is

morally valuable because of its contribution to liberty and autonomy, but that this is not the only moral standard that we evaluate
law against, and thus does not settle the question of moral obligation
to a particular law or legal system. Waldron has suggested that this is
the correct understanding of the rule of law's moral value and its
relationship to questions of obedience, and that although Hart

recognised this position he failed to acknowledge it.79 But Hart does
make this argument in the paragraph cited above, based on his clear
view that conformity to the rule of law principles is morally valuable. No effort to correct Hars inconsistency is needed, for there is
none.
The reason why Hart has been misunderstood fo
probably that his view is found in its most famous a
form in the aforementioned passage from The Concept of
the heading 'principles of legality and justice', Hart ad

78 Hart, supra note 13, at 115-116.
Waldron, supra note 21, at 1161-1162: 'I have said a number of times that a pe
that legality has moral significance need not also believe that legality conclusively
of the moral quality of a given law. Certainly, he need not believe that legality co
the political obligation implied by such a law. Thus, while Hart does seem to believ
the principles of legality is compatible with great iniquity, this claim could survive a
to (2)-that legality does have moral significance-if, for example, that significance
number of factors that might enter into a law's overall moral value. Indeed, thi
consistent with quite a strong version of (2a): We might say that conformity to the
always makes things better, even though it is not necessarily capable of rescuing
iniquity of its content'.
'may be said that... a minimum of justice is necessari
whenever human behaviour is controlled by general rule

announced and judicially applied'.80 Thus, to the degree
are applied in like cases without partiality, 'we have, i
notion of applying a general rule of law, the germ at le
tice'.81 He further observes that when a method of social
used that involves people generally following rules thro

cation of the law to themselves - with official interventi
case of breach or dispute - the rules used must82
satisfy certain conditions: they must be intelligible and within the capa
to obey, and in general they must not be retrospective[.] This means

most part, those who are eventually punished for breach of the rules
the ability and opportunity to obey.
The very idea of effective guidance by rules requires tha

sible for people to be guided by the rules. Without rules
out in advance in intelligible fashion, social control can on
there are enough officials to go around prodding each

comply with the law. Hart follows these observation
famously subdued acceptance of Fullers position:83
Plainly these features of control by rule are closely related to the req
justice which lawyers term principles of legality. Indeed one critic of po
seen in these aspects of control by rules, something amounting to
connection between law and morality, and suggested that they be cal
morality of law'. Again, if this is what the necessary connectio
morality means, we may accept it. It is unfortunately compatible wit

iniquity
Hart is observing that any effective system of governance that relies
on people applying rules to their own conduct will have to conform

to the principles of legality to some degree, and will therefore in
some way conform to these 'requirements of justice'. Conformity to
the requirements of efficacious social control by rules will lead to
some degree of moral value. Hart does not go into any detail about
what moral value is furthered by conformity to the principles of
legality; if he were pushed, he would likely have produced

81 Id. at 206.
82 Id. at 206-207.
624 MARK J. BENNETT
something like the arguments that he made

and his encyclopaedia essay, in which the '
look very similar to the argument made by
reason, Hart thought it unnecessary to exp
The Concept of Law, except through the

compliance with the rule of law principles
patible with very great iniquity'. It is unfo
extensive analysis is found in his most famo
his clearer discussions came later, provoked
of his own position in The Morality of Law. Bu
has been misinterpreted are not the concern

should be clear by now is that Hart ought n
the non-instrumental moral value of the r
inconsistent about it because of his anxi

positivism.
In itself, Hart's point - that rule of law
morality and must be evaluated against mo

and relatively obvious one that causes very
project. A charitable reading of Fuller is th
the moral value of conformity to the ru
morality that values autonomy.84 Hart cou

relatively minor nature of his objection to F
prevented Fuller and others from thinking
stronger objection that conformity to its p
valuable. To the degree that it has been
misreading, the debate on the moral value o

generated far more heat and far less light t
thermore, even if one accepts this argumen
that conformity to the rule of law is generall
not hard to agree with the view that Hart

and approach may have led him away from
In dealing with Fuller's views so cursorily in
in driving home his point about the rule of
in his review of Fuller's key book, Hart so
into the misinterpretation of his position,
examination of some of the most important
85 Waldron, supra note 21, at 1164; Fuller, The Morality of Law
In discussions of the rule of law that proceed on the

orthodox interpretation, Hart's acknowledgment of th
in the review and his brief but perceptive analysis of t
of instrumental and moral value in his encyclopae
dormant under the weight of his arguments about the

'inner morality of poisoning'. However, Hart's view wa
buried, however, because his position is a precursor t
Raz articulates in much greater detail.
V. RAZ ON THE RULE OF LAW'S MORAL VALUE
Like Hart, Raz's views on the moral value of conformity to the
of law have also been fundamentally misinterpreted in the literatu

A recent statement of the orthodox interpretation of Raz is ma
Murphy:86
For Raz the rule of law is not morally valuable in itself. . . . Raz rejects the claim
that the rule of law has non-instrumental moral value. To the extent that a
particular society uses the tool of the law to achieve morally valuable social ends,
then the implementation of a legal system acquires derivative moral value. It then
becomes morally important to have the legal system perform its function well,
thus establishing the moral value of respecting the rule of law. However, absent
some such connection with a morally important purpose, the function facilitated
by the rule of law, namely, guiding behavior, remains itself morally indifferent. . . .
In the Razian view, then, respecting the rule of law achieves nothing of noninstrumental moral significance. The Razian view implies that saying that officials
and citizens respect the rule of law cannot in itself tell us anything morally
significant about their relationship. . . . The reciprocity and duties undermined by
the violations of the rule of law are, for Raz, morally insignificant.
This perception of Raz as representing the antithesis to Fuller's view
of the moral value of the rule of law principles has led to a lack of
engagement with Raz's actual arguments. Raz's famous knife analogy and his view that instrumental virtue is not the same as moral
virtue are often briefly set out and used as the canonical foil against
which Fuller's views can be reaffirmed. This lack of engagement
with Raz's arguments about the rule of law principles' moral value is
disappointing because he points this analysis in useful directions.
Raz's essay provides a precise and comprehensive analysis of his

view of the connections between law, the rule of law, and morality.
86 Murphy, supra note 16, at 246-249.
626 MARK J. BENNETT
But because Raz has been taken to be the
long, we have not benefited fully from t
Hart, if we read carefully what Raz h

instrumental moral value of the rule of
are the opposite of those that the orthod

This is because, contrary to the orthod
accepts that conformity to the formal prin
non-instrumental moral value. He states ear
is a political ideal,87 and his key arguments
value are very similar to Fuller's. He firs
ability to choose our way of life, whi
energies towards the goals that we rega

plan our actions so as to achieve our goa
frameworks of rules that enable and co
many societies the law is the most impo
However, law will only assist us in p
achieve our goals if it is 'a stable and saf
ning', which it will be only if it conforms

of law.88 There is a sense in which conform
by securing a predictable framework of

allowing us to see what our options are.
More important than the above points,
are:
90
necessary if the law is to respect human dignity. Respecting human di
treating humans as persons capable of planning and plotting their fu
respecting people's dignity includes respecting their autonomy, the
control their future.
The two ways in which violations of the principles of legal

people's autonomy are by causing uncertainty (where peop
have any expectations of the law and are thus unable to f
future) or the disappointment of expectations (where expe
stability or certainty are 'shattered by retro-active law-maki
preventing proper law-enforcement, etc.')91 While uncerta
87 Raz, The Authority of Law, supra note 24, at 210 & 211.
88 Id. at 220.
89 Id. at 220.
90 Id. at 221.
Id. at 222.
vents planning for the future and allows for arbitrary power,
of disappointment of expectations are greater:92
Quite apart from the concrete harm [that frustrated expectations] caus
offend dignity in expressing disrespect for people's autonomy. The

cases encourages autonomous action only in order to frustrate its purp
such frustration is the result of human action or the result of the activi
institutions then it expresses disrespect. ... A legal system which does

observe the rule of law treats people as persons at least in the sense that
to guide their behaviour through affecting the circumstances of their ac
presupposes that they are rational autonomous creatures and attemp

their actions and habits by affecting their deliberations.
Raz thus argues that respect for the rule of law expresses resp
people's autonomy, thereby securing non-instrumental mo
By setting out secure guidance for human action, the l

people as 'rational autonomous creatures' who can com
rules and plan their lives in light of those rules. Note the mar
unacknowledged, similarity with Fuller's view that '[e]ver
ture from the law's inner morality is an affront to man's dig
responsible agent', as a 'responsible, self-determining cen

tion'.93 It seems that Fuller's argument about the princip
value is one of those that Raz views as 'suggestive and
because Raz substantially agrees with Fuller that the princ
non-instrumental moral value because of their contribution to hu-
man autonomy. Conformity with the rule of law does not prevent
the law from disrespecting human dignity in other ways, because law
may treat some people as subordinate or sub-human, while still

respecting human autonomy through conforming to the rule of law
principles. Or we could see the opposite situation, in which law that
is generally respectful of human equal worth disrespects human

dignity by violating rule of law principles.95 There are a number of
ways of respecting and violating human dignity, and a conscientious
lawmaker must respect each of them, including conformity to the
principles of the rule of law.
Given that Raz spends a whole section of his essay discussing and
affirming the rule of law's non-instrumental moral value in securing
92 Id. at 222.

94 Raz, The Authority of Law, supra note 24, at 223 fn 10.
95 Id. at 221.
628 MARK J. BENNETT
human dignity and autonomy, it may se

commentators have attributed to him th
denying any such moral value. Most likel
argument, which portrays conformity to p

virtue, which sets many commentators on
that later discussion does not retract nor contradict the claim that the
rule of law principles have positive moral value, because it is not

intended as a discussion of the moral value of the principles, but
instead as a discussion of their relation to the concept of law. Raz
argues that that conformity with the moral ideal of the rule of law is
not necessary for there to be law. Nevertheless, he claims that there

may be said to be some connection between law and the rule of law,
in that the rule of law is the 'instrumental virtue' of law - it allows
law to better serve its purpose or function. He then goes on to note

that instrumental virtues are not moral virtues, and this argument is
the one that is mistakenly read as an argument that the rule of law is
of no moral value. To make it clear why these arguments are not a

denial of the rule of law's moral value, they may be elaborated as
follows.
Raz's first claim is that fulfilment of the moral ideal of the rule of
law is not 'essential for the existence of law'.97 For Raz, whether a
system is a legal system is one inquiry, and when there is an affir-
mative answer to that question one can then examine the legal
system to see whether it conforms to the ideal of the rule of law. The
rule of law is a moral ideal that law ought to conform to, but Raz
argues that a system could violate it 'radically and systematically'
without ceasing to be law.98 Although the rule of law makes law
conform to its function of guiding human behaviour, this merely
indicates that the rule of law describes the specific excellence of law,
rather than being necessary for the existence of law, or being the
only ideal that law aspires to. In short, one can have law without
having the rule of law.
96 This is clear in Murphy's statement that 'Raz rejects the claim that the rule of law has noninstrumental moral value. To the extent that a particular society uses the tool of the law to achieve
morally valuable social ends, then the implementation of a legal system acquires derivative moral value.
It then becomes morally important to have the legal system perform its function well, thus establishing
the moral value of respecting the rule of law. However, absent some such connection with a morally
important purpose, the function facilitated by the rule of law, namely, guiding behavior, remains itself
morally indifferent'. Murphy, supra note 16, at 248.
97 Raz, The Authority of Law, supra note 24, at 223.

98 Id. at 223.
It may seem that Raz is flatly denying Fuller's claim th

system must of necessity conform to the rule of law to
degree'.99 This depends on whether one thinks that any c
with the principles, however minimal, is also conformity
of law. Raz accepts that most of the principles that Fulle
ated could not be 'violated altogether by any legal syste
seems to be a concession to Fuller's position, a kind of we
law in which to have law there must be some minimal c
with a moral ideal, but Raz insists it is not. He observes t
the point of view of a positivist legal theory - a num
principles of the rule of law will be at least minimally fu
legal system exists. It is not that substantial conformity to p
of the rule of law is determinative of whether a legal sy

(Fuller's argument), but that the determination of whet
system exists requires enough conformity with the princ
rule of law for there to be rules. Raz's point is that this
conformity with the principles is insufficient to secure
value that is created by substantial conformity required by t
law ideal, but it is nonetheless sufficient for there to be

Therefore there is a distinction that should be drawn between the
principles as constitutive of our moral ideal of the rule of law, and

their being 'conceptual or constitutive conditions for the existence of
a legal regime'.101 This distinction is perhaps opaque, so consider this
explanation. To make a rule that can be applied, you must comply

minimally with the same principles which substantial conformity to
makes up the rule of law ideal, because someone has to be able to
apply the rule (otherwise it is not a rule). So it is clear that two
important features of legal positivist concepts of law - that officials
apply the secondary rules (rules determining how law is to be

recognised, changed, and applied), and citizens obey the primary
rules (governing human conduct in general)102 - require this kind of
extremely minimal satisfaction of the principles that any existing rule
must have. Raz notes that the positivist legal system requires judicial
" Id. at 223.
100 Id. at 223.
101 Matthew Kramer, In Defense of Legal Positivism 51 (1999). In Kramer, supra note 2, at 101-103
Kramer makes a distinction between the rule of law as the morally-neutral existence conditions for any
legal system, and the rule of law as the moral ideal that becomes possible in benign legal systems. See
also Fuller, The Morality of Law, supra note 5, at 41 for a similar formulation.
630 MARK J. BENNETT
institutions, and such institutions must be
Legal systems, to be legal systems, must

and prospective rules of recognition and a
relatively clear. Because these are rules, th
mally satisfy the same principles that th
requires substantial conformity to. Even
some kind of support for Fuller's argument,
because 'the extent to which generality, c
are essential to the law is minimal and
violations of the rule of law'.104 If no-one
not really a rule, for it cannot guide any

only very few people can understand it,
applied even though it does not conform
law.
Thus, it is misleading to think of this minimal compliance with
the principles that is required to even have a system of rules as

'conformity to the rule of law'. Indeed, Raz does not speak of
minimal compliance with these principles as minimal 'conformity' to
the rule of law. A system that violates the rule of law 'radically and
systematically', while still managing to be an affair of rules by

complying at least minimally with the rule of law principles, is not a
system that is minimally 'conforming to the rule of law'. (That

would be like saying that because a blunt knife can still cut some
things it is sharp.) Raz argues that while the principles must be
adhered to minimally by any legal system, this does not give the
legal system any moral value, because these principles must be by
and large fulfilled if it is to avoid vices of arbitrary power and violations of freedom and dignity, and therefore constitute the moral
ideal of the rule of law. In other words, there is a continuum from
the most minimal fulfilment of the principles that is required to

create any rule or system of rules, through to the substantial compliance with these principles that constitutes the rule of law, which
respects human dignity by allowing planning and reliance on rules.
Only a well-ordered set of rules that substantially conforms to the
principles has the moral value that Raz previously identified as the
rule of law ideal.

104 Id. at 223-224.
Raz makes his argument in a way that that obscures th

point that minimal conformity to the principles is not
conformity to our ideal of the rule of law, but merely confor
the existence conditions of rules that is necessary for law to e
acknowledges Fuller's claim that '[a] legal system must of n
conform to the rule of law to a certain degree', and the furth
that this is a necessary connection between law and moralit

then makes the above move, by refraining from calling m
conformity to these principles 'conformity to the rule of l
admits that minimal conformity to these principles is nece
there to be rules, which are necessary for there to be law,
that such conformity is 'consistent with gross violations of th
law'.107 It is no virtue of law that it cannot be completely
obscure or retrospective, and that it must - to be law - h

minimal stability, intelligibility, and prospectivity. But thi
conformity to principles is not conformity to the rule of law
is a 'moral virtue... which should but may fail to becom

ity'.108 Law would not exist if minimal conformity with
failed to be a reality, but law can exist without minimal or su
conformity with the moral ideal of the rule of law.109

What Raz does in this part of his essay is to challenge to
positivist claim that he takes Fuller to be making: that th

'essential link between law and morality' because (A) the ru
must be substantially satisfied before we can say that we
and ( ) substantial satisfaction of the rule of law is a moral
However, Raz does not refute Fuller, because he posits a d
concept of law - his positivist one - which rejects A, a

requires the rule of law to be minimally fulfilled. He t
changes the question, from the morality of substantial fulfill

105 Id. at 223.
106 Id. at 223 'It is, of course, true that most of the principles enumerated. . . above cannot be violated
altogether by any legal system'.
107 Id. at 224.
108 Id. at 224.
109 CfN Barber, Must Legalistic Conceptions of the Rule of Law Have a Social Dimension 17 Ratio Juris
474, 477-478 (2004) 'Raz's dictates of the rule of law are attempts to flesh out this claim: All legal
systems must therefore comply with the principles of the rule of law to some extent, and a legal system
qua a legal system is better the more it conforms. Raz's rule of law is not just a nice constitutional
diversion, but a central feature of his understanding of a legal system'. The argument in the body of this
text is that law is does not necessarily conform to the rule of law to some extent though it does
necessarily conform to formal-procedural principles.
110 this, see Waldron, supra note 21.
632 MARK J. BENNETT
the rule of law (Fuller's concept), to the m

fillment (Raz's concept). From the perspecti
of law, 'Fuller's attempt to establish a necess
law and morality fails. In so far as conformity
moral virtue it is an ideal which should bu

reality'.111 This is correct from the perspe
law, but it is incorrect from the perspecti
law. Because Fuller thinks that conformity
moral virtue (B), and that the rule of law is
substantially conform to (A), it follows th

between law and morality. Raz, after succi
ment, takes a detour around it by relying on
law.
In other words, Raz's argument - that Fu

Hart or Raz's concepts of law do not require
of the rule of law - is no argument against Fu
positivist concepts that Fuller rejects. Readin
that Raz accepts this criticism - or rathe
Tucked in a footnote, he admits that he is r

cept of law, and thus is not directly assessing
However, Raz is relying on his concept rath
argument (at least in that essay), and therefor
for him to claim in the main text that Full

essary connection between law and morality
has by his own admission not properly consi
all. It may be that Fuller's concept of law s
ertheless, it is the view of many that Full
plausible alternative to theories of law th
connection between law and the moral ideal of the rule of law.
Near the end of the essay, we find another argument that seems
to mislead many readers. To not be misled, it is crucial to note

exactly what Raz is seeking to do with that argument. He is not
trying to say that the rule of law is of no moral value - 'part 2' of his
essay emphatically rejected that view. The general aim in 'part 4' of
the essay is to deny that the moral value the rule of law has is
present in all legal systems, as an existence condition of any legal
112 Id. at 223, note 11.
113 Id. at 224.
system. That was the burden of the previously discusse
and it is also the aim of the following argument, which ob
the rule of law is the instrumental virtue of law, but
instrumental virtues are non-moral virtues. Despite ac

that the rule of law is law's 'most important inherent v
'specific excellence of law',114 Raz goes out of his way t
the principles of the rule of law are necessarily used f
attractive ends, and are in that sense intrinsically moral
Regarding the rule of law as the inherent or specific virtue of law
instrumental conception of law. The law is not just a fact of life.
social organization which should be used properly and for the prop
tool in the hands of men differing from others in being used for a l
proper purposes. As with some other tools, machines, and instrum
not of the kind unless it has at least some ability to perform its func
not a knife unless it has some ability to cut. The law to be law mu
guiding behaviour, however inefficiently. Like other instruments,
specific virtue which is morally neutral in being neutral as to the end
instrument is put. It is the virtue of efficiency; the virtue of the ins

instrument. For the law this virtue is the rule of law. Thus the rule of law is an
inherent virtue of the law, but not a moral virtue as such.
In other words, because the law is an instrument for guiding

behaviour, the rule of law can be seen as the 'virtue' that allows that
instrument to fulfill its function efficiently - that makes law 'good'
law in the instrumental sense of 'good at achieving its aims'. 'Virtue'
here means the good-making property of an instrument, the property that allows the instrument to effectively fulfill its function; such
virtue is not 'moral' virtue.116
On the orthodox reading, this is the key statement of the

instrumental objection to the rule of law's supposed moral value. If
the rule of law is a non-moral instrumental virtue, how can it also be
a moral virtue? Perhaps Raz's answer would be to turn the question

around and ask, 'Why can't an instrumental virtue also be a moral
virtue'? Raz's essay has been seen as an antithesis to Fuller's morality
argument because people have thought Raz to be saying that the

rule of law is an instrumental virtue and therefore not a moral
virtue. He is somewhat complicit with this interpretation, as seen in

114 Id. at 225.
115 Id. at 226.
116 Id. at 226.
634 MARK J. BENNETT
these words quoted above: 'the rule of l

the law, but not a moral virtue as such'.1
Raz thinks that principles that are instru
moral value. That seems to be the reason
that Raz denies Fuller's argument that co
is morally valuable. But this interpretat
shown above, Raz clearly states that the r
earlier in his essay. In the paragraph th
mental virtue' argument, Raz expressly rei
is a moral virtue of law, but that it is 'not
This is because it is also an instrumenta

passage that follows the instrumental vi
that:119
The special status of the rule of law [as a non-moral instrumental virtue of law]
does not mean that conformity with it is of no moral importance. Quite apart from
the fact that conformity to the rule of law is also a moral virtue, it is a moral
requirement when necessary to enable the law to perform useful social function[.]
It is hard to see how Raz could have made it clearer that the rule of
law is morally valuable as well as instrumentally valuable. Nothing

in his instrumental argument suggests otherwise. Raz clearly believes
that the rule of law is a moral virtue - thus affirming Fuller's
morality thesis - while at the same time believing that it can be seen
as an instrumental virtue of law.
VI. CONCLUSION
The simple and confined point that this article has attempt
show is that Hart and Raz, so often cast as Fuller's critics,
took much from Fuller's conception of the rule of law. Thei
on the rule of law's content and its moral value are in essence the
same. Rather than being in opposition with one another, they are
'peas in a pod' when compared with other positions in the rule of
law literature. The rule of law's content is identified with a number
of formal principles such as prospectivity, clarity, stability over time,
etc. These principles are of moral value because they allow people to
1,7 Id. at 226.
118 Id. at 225.
1,9 Id. at 226.
plan their lives in the knowledge of the standards that will be a

to their actions - this is value of people being treated as auton
The major difference between Fuller's position and that of H

Raz is whether the rule of law ideal is a part of the very id
concept of law. Fuller provides the anti-positivist perspecti
says that the ideal is central to the concept of law, whereas H
Raz say that the ideal is just that: and ideal to which we
whatever we identify law against. Law is law notwithstandi
violation of the ideal of the rule of law. If we are discussing
ences between Fuller and these two influential legal thinke
this 'positivism vs. anti-positivism' battle-ground on wh

debate should proceed, because they are at peace on what th
of the rule of law requires and what moral consequences follo
it. Too much time has already been wasted trying to defen
from Hart and Raz's attacks, and consequently not enough h
spent trying to integrate their insights.
ACKNOWLEDGMENTS
I am grateful to David Dyzenhaus and for many discussions of thi

and comments on earlier drafts of this article, to William Lucy a
anonymous referee for detailed written comments, and to Sarah
Joel Colon-Rios, Grant Morris, and Kristen Rundle for helpful com
on earlier drafts.
Faculty of Law,
Victoria University of Wellington,
Wellington 6012, New Zealand

E-mail: mark.bennett@vuw.ac.nz

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HART AND RAZ ON THE NON-INSTRUMENTAL MORAL VALUE OF THE RULE OF LAW: A

Law and Philosophy (2011) 30:603-635 Springer 2011

DOI 10.1007/S10982-01 1-9106-1

HART AND RAZ ON THE NON-INSTRUMENTAL MORAL

(Accepted 5 May 2011)

mentally opposed to Lon Fuller's argument in The Morality of Law

the 'instrumental objection', which says that these principles are of no m

the law to guide behaviour. Recently, many theorists have come t

the non-instrumental moral value of conformity to the principles of leg

the instrumental or 'purposive' value of the principles of legality as denial

moral value, as a close reading of their work shows.

Is conformity to the principles of the rule of law of moral valu

L. Fuller is famous for arguing that it is. His discussion

'internal morality of law' has received much attention recent

claim that law has a necessary connection with morality

certain legal positivists acknowledge that some conformity t

604 MARK J. BENNETT

law principles is necessary if law is to exist,2 a

fulfilment of these principles by a legal sys

nutshell, that argument states that conformit

the rule of law is not in itself morally valu

identified as having provided the canon

'instrumental objection', thereby showing th

This article shows that the orthodox inter

incorrect and cannot withstand a close reading

fact, Hart and Raz substantially agree with Fu

moral value, both in terms of the existence

in terms of its basis in human autonomy. Th

both suggestions of controversy where none e

the important differences that remain betw

tion. I begin by briefly setting out Fuller's vie

its moral value in order to show the basic

ples of the rule of law was of no moral

discussed conformity with the rule of law, he

2 Matthew Kramer, Objectivity aND tHE Rule of Law ch. 2 (200

3 Marmor, supra note 2, at ch.l & Andrei Marmor, The Ideal of

4 By 'no moral value' I mean 'no non-instrumental moral valu

instrumental moral value where it helps to make more efficacious

HART AND RAZ ON THE RULE OF LAW 605

morally valuable results. Finally, I show that even thou

commonly understood as taking up and clarifying the 'ins

value. When his famous article on the topic is read car

secures human dignity through respecting human autonomy, and

seeks to put an end to this pervasive misinterpretation.

Fuller's famous argument is familiar to all students of legal phil

identifies an 'internal morality of law', a set of principles that must

referred to today as principles of 'legality' or 'the rule of law'.

laid down, and he makes his commands extremely ambiguously or

the internal morality of law itself.

If we recognize this we can ask, for example,

Lon L Fuller, Positivism and Fidelity to Law - A Reply to Professor H

(1958); Lon L Fuller, The Morality of Law 214 (Rev.ed, 1969) at 3

6 Lon L Fuller, Positivism and Fidelity to Law - A Reply to Professor H

8 Fuller, Positivism and Fidelity to Law, supra note 5, at 646.

606 MARK J. BENNETT

How much of a legal system survived the general de

all forms of social order that occurred under Nazi ru

Hart's mistake, Fuller argues, is to think tha

the Nazi rule, argued that law that reach

position, which in Fuller's view resulted in H

really be said to be law.10 The Nazis' resor

secret laws, to the disregard of the law by th

the perversion of the law by those interpret

To me there is nothing shocking in saying that a dictatorship which clothes itself