Legal Pluralism and the Contrast Between Hart's Jurisprudence and Fuller's
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Description
The exchange between Lon Fuller and HLA Hart, published in the Harvard Law Review in 1958, covered a whole array of questions in general jurisprudence. Yet there were one or two issues that were salient then or have become salient in legal theory since 1958 that they barely touched on. One is the topic of legal pluralism, and that is my topic in this chapter. I think it is fair to say that there is nothing whatsoever on this topic in the Hart-Fuller exchange—nor do modern debates about legal pluralism appear to be part of the legacy of the Hart-Fuller debate. So much is this so that some jurists have suggested that the Hart-Fuller debate actually skewed the agenda for jurisprudence in unfortunate ways, which we are only now beginning to correct, and that recent emphasis on legal pluralism is part of that process. However, I have no intention of scolding Hart and Fuller for failing to address legal pluralism in 1958. It would be churlish to do so, given the range of topics they did address. But it is interesting that they neglected this topic, and it tells us something perhaps about blind spots in both their jurisprudence. So in what follows I want to look at various missed opportunities (for addressing this topic) from the positivist perspective that Hart’s work represents and from the various perspectives that Fuller’s work represents—the ‘rule of law’ perspective and the anti-positivist position. I am also going to speculate a little about what Hart’s and Fuller’s attitudes to legal pluralism might be expected to be, in light of the positions they took up in their subsequent work. I suspect that most legal theorists have the following view. They assume that HLA Hart and Lon Fuller would be divided on the question of legal pluralism. They assume that Hart, like other legal positivists, would tend to favour a strongly state-centric view of law, leaving little room for genuine legal pluralism. And they assume that Fuller would be much more sympathetic to legal pluralism, partly on account of his anti-positivist commitments and partly on account of some things he said about customary law and about the diversity of legal systems, not in the 1958 piece but in The Morality of Law and in some of his later writings. I shall try to show that on both sides this view is a little simplistic. I do not mean that Hart was a legal pluralist and Fuller was not. But I mean first that, on the Hart side, we need to distinguish between currents in legal positivism that favour legal pluralism (and there are some) and currents in legal positivism that tend to oppose it; we need to understand how the latter currents are permitted to flow through the distinctive channels of the legal theory that Hart set out in his Holmes Lecture and in The Concept of Law; and we need to understand the various ways in which the former currents are blocked. And I mean secondly, on the Fuller side, that we need to understand the pressures put on the idea of legal pluralism by Fuller’s ‘inner morality of law’ and the ways in which this might militate in favour of a monistic rather than a pluralistic legal/political system.
Source Publication
The Hart-Fuller Debate in the Twenty-First Century
Source Editors/Authors
Peter Cane
Publication Date
2010
Recommended Citation
Waldron, Jeremy, "Legal Pluralism and the Contrast Between Hart's Jurisprudence and Fuller's" (2010). Faculty Chapters. 1582.
https://gretchen.law.nyu.edu/fac-chapt/1582
