Abstract

In the course of their long-running debate, Lon Fuller accused H. L. A. Hart of having defended a conception of law that was really an account of managerial direction. Unfortunately, it was never altogether clear what Fuller meant either by this charge or, more generally, managerial direction. I argue that the controversy between Hart and Fuller can best be understood as a debate about the nature of principles of legality and, specifically, about the legitimacy of such principles. I show that the contrasting views of these authors have important implications for our ability to account for the normativity and authority of law. In order to demonstrate this, I explore the accounts of normativity and authority found in the work of both Hart and Fuller and relate this to the work of the German sociologist Max Weber. Weber defended a descriptive account of "rational-legality" as the source of law's legitimacy in the modern age. Weber argued that the legitimacy and authority of modern law was due in no small part to its bureaucratic structure and rationality and in this it shared important features with managerial authority. I argue that there are important affinities between the views of Hart and Weber in this regard and that these help us to make sense of Fuller's charge against Hart. I conclude that theories of law like those of Fuller, Hart, and Weber, which emphasize the importance of legality in explaining the authority of law, must take seriously the question about the legitimacy of legality. Such theories need to include an account of the general acceptance of the foundational rules of legal systems in order that those rules be able to meet the demands for legitimacy ultimately placed upon them when they are appealed to as the source of the justification of the demands that law makes upon its subjects