Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration

Abstract

HLA Hart and Joseph Raz are usually interpreted as being fundamentally opposed to Lon Fuller’s argument in The Morality of Law that the principles of the rule of law are of moral value. Hart and Raz are thought to make the ‘instrumental objection’, which says that these principles are of no moral value because they are actually principles derived from reflection on how to best allow the law to guide behaviour. Recently, many theorists have come to Fuller’s defence against Hart and Raz, refuting the ‘instrumental objection’ and affirming the non-instrumental moral value of conformity to the principles of legality. This article argues that although this moral value should be affirmed, the orthodox view is incorrect, because Hart and Raz never understood their arguments about the instrumental or ‘purposive’ value of the principles of legality as denials of their moral value, as a close reading of their work shows.