Is it possible to be Lawful Evil?

Is it possible actually to be Lawful Evil? 

This question, oddly enough, gets us to the heart of the central conundrum of 20th century legal philosophy. After the Second World War, jurisprudential thought went through some soul-searching with regard to the relationship between law and morality. To oversimplify: does law have to have some sort of connection to morality in order to be valid law? 

This debate chiefly concerned the status of the law of the Nazi regime. The West German authorities were faced with a conundrum in the period after the war when their country was undergoing a complete institutional restructuring and denazification process. Should they behave as though the laws which the Nazis had made were valid? Or should they behave as though no Nazi-made laws had any effect, and simply act as though the civil and criminal codes of the German state as they had existed prior to 1933 had continued to be the really valid law all along? 

The best way to make this abstract-sounding debate concrete is to briefly described the 'Nazi informer' case, made famous by a debate between HLA Hart and Lon Fuller that is well-known to law students everywhere. To cut a long story short, this concerned a woman who had wanted to rid herself of her husband. In order to expeditiously get him out of the picture, she reported him to the authorities in 1944, accusing him of having made statements inimical to the welfare of the Third Reich (in this case, derogatory remarks about Hitler). This was a criminal offence at that time, punishable by death, although the husband was eventually sent to serve in the front (presumably because at that point the regime was fighting for its life and needed every able-bodied man it could get). 

After the war was over the wife was indicted for the offence of 'unlawful deprivation of liberty', which was listed in the German Criminal Code of 1871, and was found guilty. She may have been doing her 'lawful' duty in respect of the 'law' which had existed at the material time. But that was not valid law, because it had been an outrage 'to the sound conscience and sense of justice of all decent human beings'. She could not plead in her defence that in 1944 she had been acting lawfully, because she had not: the 'law' in question (regarding statements inimical to the welfare of the Third Reich) had not been law at all.

This might sound intuitively like the right outcome, but there is a strong rule-of-law argument from the other direction - namely, that this was a retrospective application of law. It isn't fair, or just, to punish somebody for doing something that at the material time had not been prima facie unlawful. The wife might have behaved immorally, but that's not the same thing as saying she had done something unlawful. The answer, as you will have noticed, really just hinges on what one thinks about the nature of law itself. If law is valid because it is validly made on its own terms, then the wife had done nothing legally wrong, because the Nazi law in question had indeed been validly made on its own terms. If, on the other hand, law is only valid if it accords with some underlying moral order, then she had committed the old 1871 offence, because that was valid in the moral sense, whereas the Nazi law that had appeared in the interim was not.

Put more straightforwardly: can law be evil, or is law only law if it has moral content or rests on moral norms?

For Hart (and the other legal positivists, of which he was one) law can indeed be 'evil' in the sense that law is law as long as it is recognised as such. This does not mean that law should not, ideally, reflect morality or that there is no underlying moral order. It just means that in identifying whether law is valid, what is relevant is whether it has been made in accordance with what is recognised to be the test for validity within the legal system itself. For Fuller, law cannot be 'evil' in the sense that law is connected with morality, and immoral law is an oxymoron; it law is not founded on morality then it is not law at all.

Fuller, though, did not base his reasoning on a substantive idea of morality, but rather a procedural one. Law, he said, was only law if it was made in accordance with law's 'inner morality'. This was not a matter of determining whether its rules were right or wrong. Rather, it was a matter of determining whether they had been made in the right way. This meant that law must be (1) of general application; (2) promulgated publicly; (3) prospective rather than retrospective in application; (4) intelligible to those addressed by it; (5) consistent; (6) practicably possible to comply with; (7) stable; and (8) ‘congruent’ (meaning that there should not be a gap between the law as it exists on paper and how it is applied in practice). 

These eight principles, Fuller suggested, were important because they were the means by which respect for the subject of law - the human individual - could be enshrined. If law possesses these qualities, it is predictable, stable, and clear, and people know where they stand with it. It gives its subjects a fair opportunity to know, in advance of doing something, whether or not it will be lawful. If, on the other hand, 'law' does not possess those qualities (i.e., if it is of selective application; if it is secret; if it applies retrospectively; if it is unintelligible; if it is inconsistent; etc.) then that is tantamount to saying that those making the 'law' are really just governing by whim, which is to say, not making law at all but ruling by fiat or decree. 

Fuller's test for whether something is really 'law' or not therefore rested on a connection to morality, but he was careful about how he framed what 'morality' meant. Law's morality was not substantive. It was only to do with how it was made. What makes law, law, is that it consists of rules which possess his eight characteristics. 

However, Fuller was also clearly of the view that if law is (1) of general application; (2) promulgated publicly; (3) prospective rather than retrospective in application; (4) intelligible to those addressed by it; (5) consistent; (6) practicably possible to comply with; (7) stable; and (8) ‘congruent’ - which is to say, if it is procedurally moral - then in practical terms the law that gets made will tend to be substantively moral as well. Tyrants and dictators do not make law possessing these characteristics, for the good reason that law in this sense will constrain their actions by forcing them to rule fairly and to account for themselves to the public. Law, in other words, will by default in practice end up being connected to an underlying 'external' morality simply because that is what procedurally correct law will ineluctably produce.

Ever since he was writing, though, his critics have argued against this conclusion, calling it naive. It is perfectly possible, in the eyes of these critics, for law to possess Fuller's eight ideal characteristics but for it still to produce immoral outcomes or even to be twisted for immoral ends. And, indeed, some would even argue that the eight characteristics in question themselves will tend to be a barrier to social justice because they prevent lawmakers acting flexibly and responsively in order to do what is right in the name of higher values - equality, fairness, etc. 

Is it, then, possible to be Lawful Evil? Is law valid law so long as it is validly made in terms which the legal system recognises? Or is law only valid if it aligns with what is morally right or just? If legal morality is merely procedural, is it possible for it to produce 'evil' effects, or will the laws that are produced end up being moral by dint of the process by which they were created?

To bring us back full circle: was the wife in the Nazi informer case, when she dobbed in her husband to the authorities, being Lawful Evil? Or something else?