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

Kramers Response............................................................................................................7

Conclusion..........................................................................................................................7

Debate 2.................................................................................................................................8

Simmonds Riposte............................................................................................................8

Kramers 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 Hart-

Fuller 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 Austins 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 laws 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 laws purpose is central to understanding its

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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 laws 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, revd 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 Fullers Morality of Law, Hart was dismissive of Fullers claim that Fullers

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 ones 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 Kramers 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 Fullers eight precepts or

desideratas. The debate is divide din two parts or questions:

(1) Is there any moral point or value in following in Fullers eight precepts?
(2) Will a wicked ruler seek to follow Fullers eight precepts in long term?

If the answer to the first debate is yes, then the ruler wont 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

Fullers 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 Strength of Connection

between Morality and
Fullers eight precepts
No Yes None
No No None or weak
Yes Yes Weak
Yes No Strong

Reasons for choosing a possibility

1. Someone who chooses the first possibility will say that there is no connection

between morality and Fullers 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 Fullers 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 Fullers

precepts of legality but also agrees that even a wicked ruler will have sufficient

prudential reasons to adhere to Fullers eight precepts. Thus, he thinks that there is a

weak connection between Fullers precepts and morality.

4. The last thinker will be of the opinion that there is a strong connection between

morality and Fullers eight precepts.

Debate 1

Simmonds view

Simmonds is of the view that the moral value of adhering to Fullers 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 Fullers

precepts are a matter of moral regret though they might be justifiable when othe moral

values are at stake.8

Kramers Response

His first objection to Simmonds view that adherence to Fullers 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, Kramers 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 others 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 Fullers 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 Fullers 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 Fullers precepts.

Although Fullers 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 extra-

legal 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

wont 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

Simmonds Riposte

He argued that Kramers 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.

Kramers 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 Fullers 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 Fullers 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 hasnt 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

Schrodingers 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 ones 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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