An overview of the debate:
The debates on the question of morality are law never-ending and there is is no convincing answer to these jurisprudential questions. Two eminent jurists, Nigel.E.Simmonds and Matthew Kramer have for a long time debated in support of the Natural and Positivist schools of thought, respectively, in order to try and establish the validity and credibility of their respective schools of thought. , their debate is also based on “Legal Positivism” and “Natural School of Thoughts.” Matthew Kramer defends legal positivism while Simmonds natural school. The legal fraternity has always been divided into positivists and naturalists. The former argue that law and morality are two separate concepts and the validity of laws should be adjudged on the basis of the source of law rather than on the morality of law. Naturalists on the other hand, feel that morality is inherent in law and that morally unsound law is no law at all.
However, before entering into the discussion of this debate it is necessary to discuss fuller’s idea of law in brief. Fuller in his book The Morality of Law in 1969, provided eight principles of legality. These principles are as follows Generality, Promulgation, Prospectively, Clarity, Absence of Contradiction, Possibility of Compliance, Constancy through time and Congruence between official action and declared rules. He maintains that it is not necessary that all of these eight factors are necessary to be followed or it is not always necessary that these eight factors are to be present in every valid legal system, but more and more compliance to those eight factors will lead more good laws. There have been multiple debates in jurisprudence on this premise. The one in question in here is the debate between Matthew H. Kramer and Nigel E. Simmonds. The basis of this debate is the eight desiderata given by Lon L. Fuller.
An analysis of the debate between kramer and simmonds:
The entire Debate between Kramer and Simmonds can be broken down in to primary issue that is the eight desiderata given by Lon L. Fuller. Both of these jurists are of the opinion that law should not be judged on the morality of its content and that morality is a concept that is external to law. The debate between Matthew H. Kramer and Nigel E. Simmonds hopes to provide a solution with regard to the applicability of the Rule of Law as given by Fuller to good and evil regimes. Moreover , this debate grew out in extension after Fuller claimed that in the long run, an evil regime shall not be able to fulfil all the desiderata, especially the eighth precept. There, it shall cease to be a morally good legal system and thus, the moral character of the law shall be maintained.Let us now analyse the stance of the two jurists in order to obtain a clear and comprehensive understanding about their position in this debate.
The Contentions Raised by Kramer
Kramer in his book says that the moral character of the rule of law is proved when it is shown that rulers’ adherence to principles of legality has an inevitably moral significance. This is in Defence of Legal Positivism.
In reply to this Simmonds says that the eight desiderata are important because they ensure that the people that are supposed to be governed by that law are able to exercise autonomy. However, these claims are refuted by Kramer on the ground that following the eight desiderata does not ensure that autonomy and self-determination become a part of the exercise of law.
Now, in order to prove his point, Kramer gives the example of a gunman. He says that in a situation in which an armed gunman puts his gun to the temple of a person and asks him to give away either his life or his money, there is no effective choice with the person so given the choice.
In essence Kramer provides that claim of morality in Fuller’s concept and principles of legality are false. He contends that mere procedural aspects are not enough for the morality in a legal system to sustain Hence he believes there must be substantive aspects which are necessary for a morally good legal system. on the basis of examples given by Kramer, it can be laid down that these eight principles can be implemented in furtherance of law in the case of evil regimes also.
Moreover, another objection raised by Kramer is based on the prudential reasons to follow the rule of law. Prudential reasons are the reasons of self-interest and self fulfilment. Kramer says that adherence to rule of law may be due to purely prudential reasons and not for the respect of other individuals. He puts forth a view that in regimes where people are beaten extra-judicially, their incentive to obey the law is ‘markedly sapped’ Kramer concludes that rule of law as given by Fuller is a morally neutral idea.
Kramer’s view point states that that evil regimes as well as good regimes can equally be serviced through the rule of law. He points out that even though Fuller claims his eight desiderata not to be exhaustive but still they are able to possess by and large all major moral aspect lacks the capacity to inculcate all major moral aspects. He proves this argument of him through very sound and convincing examples. He through the examples elucidates that Fuller’s desiderata lack substantive aspects which are very much needed altogether with procedural aspects to render moral effects.
Therefore. Kramer claims that law is essential for wicked regimes to govern it for a longer period of time and similar it also holds true for good regimes as well. Law is therefore an essential precondition for certain bads as well as certain goods. Hence law is, in itself, morally neutral. This is essentially Kramer’s position.
The Contentions Raised by Simmonds.
Now taking a closer look at Simmonds stand we realize that Simmonds does not believe that an evil or wicked regime can follow the Rule of Law. An evil regime needs to retain power. It needs to suppress dissent. If the regime is following Rule of Law, the dissenters may do subtle acts that do not amount to compliance with the definition given in the law. Hence , Simmonds while discussing Kramer’s approach feels that believers of this approach, are largely positivist in nature, because they have a clear distinction in their mind as to what is the tool, and what is the manner in which it is used.
Therefore Nigel Simmonds’ opinion on Kramer’s approach is that viewing law in this manner would imply that one takes law to be a morally neutral tool, that may be utilized for the purpose of serving a just and fair end, or alternatively, for the purpose of exploitation. Acceptance of this approach means that, the individual gives in or takes for granted the idea that the authorities must decide the content of the law and will choose to enact those laws which they hope will advance certain goals or implement certain values.
In reply to the other claims of Kramer, the claim that has been called the incentive argument, Simmonds gave his own theory of the reason why regimes shall or shall not follow the rule of law. He says that an evil regime needs to retain power and that it needs to suppress dissent. At the same time, it needs to appear highly composed and organised. The rule of law shall prevent this from happening. , he gives an example of a law requiring that all citizens are required to salute any official of the government as and when the citizens see any such official. He says that this law shall be made in absolute conformity with the eight desiderata given by Fuller.
However, when it comes to the implementation of this law, it shall be difficult to define a perfect salute. The dissenters of the government may salute the officials with a limp hand, or might smile while saluting or might make a mockery out of the salute in any manner possible. This shall not amount to compliance of law, but there shall be no way in which this can be deemed to be a violation of the law.
The distinction that Simmonds tries to draw here is that law may either be used as a morally neutral instrument, that can be used to serve both good and bad ends, or that law is a high-handed moral aspiration, that ensures that on the face of it itself, justice seems to be served, due to the inherent moral quality of law that seems to have been applied in that case. However, Simmonds says, and the authors agree, that law cannot simultaneously be both of the above discussed, simultaneously.
Concluding his opinion Simmonds rejects the relevance of threshold thesis and maintains that Kramer’s threshold thesis is simply irrelevant to the position adopted by Fuller and by him. He calls his jurisprudential theses which he has defended are of great importance and even more significant at the present time.
A closer look at the bone of Contention in the debate between Kramer and Simmonds:
The whole bone of contention between Kramer and Simmonds is that Kramer believes that there will always be strong prudential reasons for the compliance of evil leaders with Fuller’s principles even though they are solely concerned with entrenching their own power and exploiting the people they govern. Simmonds chooses to refute this by saying that any evil regime can and will use violence against the people over which they are governing irrespective of whether or not they have complied with the existing legal requirements. He also says that the extensive use of extra-legal violence by officials will not in any way weaken the punishment-centered incentives for citizens to obey the prevailing legal directives.
The main point in the Kramer-Simmonds debate was the point of incentive to follow the law. The starting point of the debate is found in Simmonds’ criticisms of Hart’s thesis according to which the principles of legality are a simple condition for the efficacy of social control. Simmonds points out that if efficacy of social control refers to preventing instability of political regimes or ensuring that the governed comply with the rulers’ orders, then the principles of legality are not the instrument that best enables them to achieve that goal, but an obstacle to it. Simmonds attacks Kramer on the point of incentive to follow laws in an evil regime which believes in engaging in extra judicial beatings for its subjects
Kramer criticizes Simmonds by stating that Simmonds contends in his overall context of the quoted passage that extra-legal sanctions are especially grave procedural irregularities. And also that such irregularities detract from the classifiably of a scheme of governance as a system of law more than does the under-enforcement of legal requirements. Kramer uses the probability theory in order to prove his point. Using numbers and basic math’s, he tries to show that in evil regimes which operate on the basis of extra judicial beatings, less number of people are likely to follow the law given the fact that the probability of them being beaten up despite following the law shall be high enough to discourage the compliance of law for them. Thus, according to him, they shall cease to follow the law.
Kramer also says that even though because of these extra-legal punishments, a person’s incentive to follow the law will be diminished, it will not be fully eliminated. He also defends his argument by saying that incorporating the declining marginal utility of wealth theory, we would be led astray and that incentives for citizens to comply with legal requirements will typically operate in the manner indicated by this article’s discussions of expected levels of beatings.
Simmonds in order to counter Kramer’s logic that an evil regime can manipulate the eight desiderata which provide rule of law for its prudential reasons, regarding that Simmonds argues that his thesis is wrong if it could be demonstrated that only moral reasons support the establishment of rule of law. Furthermore, Simmonds believes that we cannot really imagine what this form of freedom would amount to, in the context of a human society, except by reference to its expression in law. Thus Simmonds analyse these thesis and maintains that the ambitious thesis is relevant but false, while the threshold thesis is irrelevant even if true.
Conclusion:
In conclusion it can be said that this debate has gone on for a long period of time without proving the case for either of the sides. Positivists stand strongly for law as it is and no matter the morality of the Rule of Law, the fact that law is valid for being as it is, is not affected. Moreover, even if the Rule of Law is not morally neutral such that an evil regime is unable to adopt it, the validity of the evil regime would not get affected. It would still have the power of passing legally valid laws and the system would not lose its legality as per the view of the Positivists. While Conventional Naturalists require looking at the content of the law and its substance in order to determine whether it can truly be characterized as law or not. This condition is not satisfied when saying that the Rule of Law is a moral percept as then mere presence of the eight desiderata would ensure Rule of Law which should ideally ensure that all laws are moral.
Lastly Kramer’s views, in believing that law is indeed the best instrument that a regime, be it wicked or good natured, to take forth their propaganda, thereby making it a morally neutral tool that may be exercised in either manner, while Simmonds believes that law as such, cannot be used as a tool for propagating an evil regime, simply because law, will act as an obstructive factor that will never permit the officials deploying law to achieve self-serving interests to actually reap the benefits accruing out of such a legal system. Therefore It is difficult to reach an objective conclusion regarding which jurists stance is valid given the highly Subjective nature of the debate.
***Author: Yash Vardhan Aggarwal, National Naw University, Jodhpur***
