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com/abstract=1143645
1



02/19/2008 (Iorthcoming, October 2008, New York Universitv Law Review)




A CRITICAL GUIDE TO VEHICLES IN THE PARK


Frederick Schauer
1


It is the most Iamous hypothetical in the common law world. And it is part oI one
oI the more memorable debates in the history oI jurisprudence. Stunning in its simplicity,
H.L.A. Hart`s example oI a rule prohibiting vehicles Irom a public park was intended,
primarily, as a response to the claims oI the Legal Realists about the indeterminacy oI
legal rules.
2
Hart believed that many oI the Realists were obsessed with diIIicult
appellate cases at the Iragile edges oI the law, and as a result overestimated law`s

1
David and Mary Harrison Distinguished ProIessor oI Law (Irom 8/2008) and George
Eastman Visiting ProIessor (2007-2008) and Fellow oI Balliol College, OxIord
University. This Essay was prepared Ior the ConIerence on the Hart-Fuller Debate at
FiIty held at the New York University School oI Law on February 1-2, 2008. The
audience comments on that occasion were especially helpIul, as was research support
Irom the Harvard Law School.

2
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593,
608-15 (1958). The example is reprised in modiIied Iorm in H.L.A. Hart, The Concept oI
Law 125-27 (Penelope A. Bulloch & Joseph Raz, eds., 2d ed., 1994).

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2
epiphenomenal indeterminacy and vastly underestimated its everyday determinacy.
Through the example oI the rule excluding vehicles Irom the park, Hart hoped to
diIIerentiate the straightIorward applications oI a rule at what Hart called the rule`s
'core Irom the hard cases at a rule`s edge, the area that he labeled the 'penumbra. For
Hart, the Iundamental Ilaw oI the Realist perspective was in taking the oIten-litigated
problems oI the penumbra as representative oI the operation oI law itselI.
3
And insoIar as
judicial decisions in the penumbra necessarily involve determinations oI what the law
ought to be, it was important Ior Hart the positivist to stress that the interconnection
between what the law is and what the law ought to be in the penumbra was not an
accurate characterization oI how law operated at the core, where the separation between
the is and the ought, between law and morality, could still obtain.


3
Although Hart`s charge rings true with respect to some oI the Realists, others, and
especially Karl Llewellyn, explicitly acknowledged that their observations about legal
indeterminacy were restricted to the skewed sample consisting oI only those cases that
were worth litigating. See Karl N. Llewellyn, The Bramble Bush: On Our Law and Its
Study 58 (1930) (observing that litigated cases bear the same relationship to the
underlying pool oI disputes 'as does homicidal mania or sleeping sickness, to our normal
liIe). See also Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 6,
64-68 (1960); William Twining, Karl Llewellyn and the Realist Movement 245-69
(1973). In this respect, Llewellyn anticipated by many years the phenomenon now
known as the selection eIIect. See Richard A. Posner, Economic Analysis oI Law 21
(3d ed. ed. 1986); George L. Priest & William Klein, The Selection of Disputes for
Litigation, 13 J. Legal Stud. 1 (1984); Frederick Schauer, Judging in a Corner of the
Law, 61 S. Cal. L. Rev. 1717 (1988). An excellent analytical overview oI the literature is
in Leandra Lederman, Which Cases Go to Trial?. An Empirical Studv of Predictions of
Failure to Settle, 49 Case West. Res. L. Rev. 315 (1999).

3
Although Hart`s target was Legal Realism, the response came Irom a diIIerent
direction. Lon Fuller was no Legal Realist himselI,
4
but Hart`s almost oIIhand
observations about the clear cases at the rule`s core ordinary automobiles, Ior example
spurred Fuller to respond.
5
Believing Hart to be claiming that the core oI a rule`s
application was determined by the ordinary meaning oI individual words in a rule`s
Iormulation iI something like an automobile was straightIorwardly a vehicle in ordinary
language, then an automobile would plainly Iall within the scope oI the rule Fuller
oIIered a gripping counter-example. What iI a group oI patriots, Fuller asked, sought to
'mount on a pedestal in the park, as a war memorial, a military truck 'in perIect
working order?
6
Although the truck would plainly count as a vehicle in ordinary talk, it
was hardly plain to Fuller that the truck ought to be excluded. Indeed, Ior Fuller it was
not even clear whether the truck qualiIied as a vehicle at all in the particular context oI
this application oI this rule. We could not know whether the truck was within the scope
oI the rule, Fuller argued, without consultation oI the rule`s deeper purpose. His
challenge was thus not to Hart`s conception oI the penumbra, as to which Fuller
presumably would have had little quarrel.
7
Rather, Fuller`s hypothetical truck/memorial

4
See Lon L. Fuller, American Legal Realism, 82 U. Pa. L. Rev. 429 (1934). See also
Myres McDougal, Fuller v. the American Legal Realists. An Intervention, 50 Yale L.J.
828 (1940).

5
Lon L. Fuller, Positivism and Fidelitv to Law A Replv to Professor Hart, 71 Harv. L.
Rev. 630, 661-69 (1958). Much oI Fuller`s response to Hart was expanded in Lon L.
Fuller, The Morality oI Law (rev. ed. 1969).

6
Fuller, Positivism and Fidelitv to Law, supra note 5, at 663.

7
But not no quarrel. When making decisions in the penumbra, Hart argued, judges
would exercise 'discretion to make decisions in more or less legislative style. Fuller`s
4
was a challenge to the idea oI a language-determined core, and by oIIering this example
Fuller meant to insist that it was never possible to determine whether a rule applied
without understanding the purpose that the rule was supposed to
8
serve.

The debate over this simple example has spawned numerous interpretations,
applications, variations, and not a Iew misunderstandings.
9
The IiItieth anniversary oI

belieI that judges should look to 'purpose was, in theory iI not in practice, more Iocused
and more constraining than Hart`s open-ended approach.

8
In using the phrase, 'supposed to, I attempt, with only limited success, to avoid terms
having a meaning similar to that oI 'intended to. Throughout his liIe Fuller remained
committed to law`s overall purpose, and also to the particular purpose behind particular
laws. The purpose that a reasonable person might see a presumably reasonable law as
serving (which is how Fuller might well have put it), however, is very diIIerent Irom the
intentions or mental states oI the people who actually draIted or enacted the law. See
Richards v. United States, 369 U.S. 1, 9 (1962); Aharon Barak, Purposive Interpretation
in Law 265-68 (2005); Felix FrankIurter, Some Remarks on the Reading of Statutes, 47
Colum. L. Rev. 527 (1947); Max Radin, Statutorv Interpretation, 43 Harv. L. Rev. 863
(1930).

9
Among the more extended discussions, some oI which qualiIy as misunderstandings,
are Frederick Schauer, Playing By the Rules: A Philosophical Examination oI Rule-
Based Decision-Making in Law and in LiIe (1991); Steven L. Winter, A Clearing in the
Forest: Law, LiIe, and Mind 200-06 (2001); Larry Alexander, All or Nothing at All. The
Intentions of Authorities and the Authoritv of Intention, in Law and Interpretation 360
(Andrei Marmor, ed., 1995); Bernard W. Bell, R-E-S-P-E-C-T. Respecting Legislative
Judgments in Interpretive Theorv, 78 N.C.L. Rev. 1254, 1333-41 (2000); Paul Brest, The
Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204, 209-11 (1980);
Anthony D/Amato, Can Legislatures Constrain Judicial Interpretation of Statutes?, 75
Va. L. Rev. 561 (1999); William N. Eskridge, Jr., The Circumstances of Politics and the
Application of Statutes, 100 Colum. L. Rev. 558 (2000); Kent Greenawalt, The Nature of
Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1460, 1463, 1474
(1997); Heidi M. Hurd, Sovereigntv in Silence, 99 Yale L.J. 984, 989-99 (1990); Robert
E. Keeton, Statutorv Analogv, Purpose, and Policv in Legal Reasoning. Live Lobsters
and a Tiger Cub in the Park, 52 Md. L. Rev. 1192 (1993); Andrei Marmor, No Easv
Cases?, 3 Can. J.L. & Jurisp. 61, 65-68 (1990); Michael S. Moore, A Natural Law Theorv
of Interpretation, 58 S. Cal. L. Rev. 279, 338-46 (1985); Samuel C. Rickless, A Svnthetic
Approach to Legal Adfudication, 42 San Diego L. Rev. 519, 520-23 (2005); Frederick
Schauer, Formalism, 97 Yale L.J. 509 (1988); Pierre Schlag, No Jehicles in the Park, 3
5
the debate, thereIore, seems the appropriate occasion on which to oIIer a guide to
understanding a seemingly simple example that has mushroomed into something Iar
larger. The hypothetical case oI the rule prohibiting vehicles in the park, and Fuller`s
response to what Hart likely initially believed to be the least controversial dimension oI
the example, has become a lens through which many commentators have viewed more
recent debates about statutory interpretation, law`s determinacy, the role oI rules in law,
and the nature oI legal language, among others. II we can get clear about the issues
involved in the disagreement between Hart and Fuller over this one example, thereIore,
and iI we can understand the strongest arguments on either side (only some oI which
were actually oIIered by either Fuller or Hart), we will have learned something important
about numerous questions oI legal theory and legal practice, questions that transcend
what may initially appear to be a rather small debate.

I. A Debate Within a Debate
The larger Hart-Fuller debate was Iocused neither on Hart`s example nor on
Fuller`s counterexample. Nor was this larger debate, principally, a debate about legal
rules, or rules in general, or even about the interpretation oI rules. Rather, the bulk oI the
debate consisted oI a more comprehensive and eventually deIining controversy about
legal positivism and its opponents, with Hart championing the Iormer against Fuller`s

Seattle U.L. Rev. 381 (1999); Anthony J. Sebok, Finding Wittgenstein at the Core of the
Rule of Recognition, 52 SMU L. Rev. 75 (1999); Peter M. Tiersma, A Message in a
Bottle. Text, Autonomv, and Statutorv Interpretation, 76 Tulane L. Rev. 431, 441, 456-
57, 462-64, 473-77 (2001); William N. Eskridge, Jr., No Frills Textualism, 119 Harv. L.
Rev. 2041 (2006) (Book Review).

6
procedural variation on traditional natural theory.
10
Conducted when Nazi atrocities
committed in the name oI the law were a recent memory,
11
the debate over the question
whether a broadly positivist or instead a broadly natural law vision oI law would be more
conducive to morally right action Iigured prominently in the articles oI both men,
12
as did
an even deeper disagreement about the Iundamental nature oI law itselI.

Hart does not appear to take very seriously the connection between the vehicles in
the park example, or even the Iull discussion oI interpretation within which is embedded,
and these larger moral and conceptual themes. Hart had something he wanted to say to
the Legal Realists, and, like the chapter oI The Concept of Law
13
that the discussion oI
the no-vehicles-in-the-park example spawned, the debate about interpretation, with the
example as its Iocal point, seems oddly removed Irom much oI the surrounding debate
about legal positivism and natural law.


10
In addition to the works cited in notes 2 and 5, supra, the debate also includes H.L.A.
Hart, Lon L. Fuller, The Moralitv of Law, 78 Harv. L. Rev. 1281 (1965) (book review).

11
See David Dyzenhaus, The Grudge Informer Revisited, 83 N.Y.U.L. Rev. (2008).

12
Although Hart retreated Irom such an instrumentalist position in The Concept of Law,
supra note 2, in 1958 he and Fuller shared the view that the worth oI a theory oI law lay
partly in its tendency to Ioster the correct attitude about morally iniquitous oIIicial action.
See Frederick Schauer, The Social Construction of the Concept of Law. A Replv to Julie
Dickson, 25 OxIord J. Legal Stud. 493 (2005). See also Liam Murphy, The Political
Question of the Concept of Law, in Hart`s Postscript 371 (Jules Coleman ed., 2001), a
position which has been subsequently modiIied in Liam Murphy, Better to See Law This
Wav, 83 N.Y.U. L. Rev. (2008).

13
H.L.A. Hart, The Concept oI Law, supra note 2, at 125-27.

7
This is not to say there was no connection at all. The rule prohibiting vehicles in
the park does link to Hart`s larger jurisprudential position, and he makes a strained eIIort
to demonstrate it. II law itselI is to be understood as not necessarily incorporating moral
criteria Ior legal validity,
14
then there must exist some possible rules in some possible
legal systems that can be identiIied as legal without resort to moral criteria. And what
better example could there be than a rule whose principal operative terms were morally
neutral, and whose application, at least at the core, would seem to avoid any recourse to
morality at all? II the clear applications oI the no-vehicles-in-the-park rule were plainly
law, Hart appears to be arguing, than the inevitable use oI morality (or justice, or equity,
or policy, or eIIiciency, or something else non-legal) in the interpretation oI unclear rules
(or largely clear rules in the region oI their murkiness) would not undercut the basic
positivist claim. No sensible positivist, even in Hart`s time (or in Austin`s Ior that matter,
as Hart himselI makes clear
15
), would claim that morality is never relevant or necessary
Ior legal interpretation.
16
But in order to support his case that morality is not always or

14
The characterization oI positivism in the text owes less to what Hart wrote in either
1958 or 1961 than to subsequent debates and interpretations about the character and
Iorms oI legal positivism. See, e.g., Analyzing Law: New Essays on Legal Theory (Brian
Bix, ed., 1998); The Autonomy oI Law: Essays on Legal Positivism (Robert George ed.,
1996); Hart`s Postscript (Jules Coleman, ed., 2001); John Gardner, Legal Positivism. 5 /
Mvths, 46 Am. J. Jurisp. 223 (2001); Leslie Green, Legal Positivism, in StanIord Encycl.
Phil. (Spring 2003 edition, Edward N. Zalta ed.); Stephen R. Perry, The Jarieties of
Legal Positivism, 9 Can. J.L. & Jurisp. 361 (1996).

15
Hart, Positivism, supra note 2, at 609 n.34.

16
Although some so-called 'exclusive positivists might say that even iI recourse to
morality is oIten part oI what judges and other legal actors in legal systems do, they are
not actually doing 'law or engaging in legal reasoning when do it. See Joseph Raz,
Postema on Laws Autonomv and Public Practical Reason. A Critical Comment, 4 Legal
Theory 1, 4-7 (1998). And Ior a discussion oI this see Brian Bix, Patrolling the
8
necessarily relevant, Hart needs an example in which recourse to morality is unnecessary
(or impermissible) to the perIormance oI an act that is plainly at least to Hart
deserving oI the name 'law. The rule excluding vehicles Irom the park was just that
example, and the application oI that rule to clear cases in the core was Ior Hart just that
morality-Iree legal act.

Making the link between the no-vehicles-in-the-park example and Hart`s side oI
the debate about legal positivism is something oI a reach, not least because oI Hart`s dual
agenda oI challenging the Realists and challenging Blackstone.
17
And much the same
can be said about Fuller`s side oI the debate. Fuller`s liIelong Iocus on the purpose oI a
law and the purpose of law provides an obvious connection between the interpretive
debate and the debate about the nature oI law,
18
especially Irom Fuller`s more or less
natural law perspective. II law itselI is by (Fuller`s) deIinition just, then the demands oI
law would require that it understand particular legal acts in just or sensible or otherwise
morally desirable, ways. A legal outcome such as excluding the truck/memorial Irom the

Boundaries. Inclusive Legal Positivism and the Nature of Jurisprudential Debate, 12
Can. J.L. & Jurisp. 17, 27-28 (1999).

17
I take Blackstone (1 William Blackstone, Commentaries on the Laws oI England * 41,
70), along with Cicero (Cicero, De Republica de Legibus 511, 513 (Clinton Walker
Keyes trans., 1928)), and Fuller but not Aquinas (see John Finnis, Natural Law and
Natural Rights (1980)), as exemplary proponents oI the 'unjust law is not law position
oIten taken as a central tenet oI a prominent version oI natural law theory. See
Frederick Schauer, Positivism as Pariah, in The Autonomy oI Law, supra note 14, at 31.
For a recent deIense, see Philip Soper, In Defense of Classical Natural Law Theorv. Whv
Unfust Law is No Law at All, 20 Can. J.L. & Jurisp. 201 (2007).

18
Fuller, The Morality oI Law, supra note 5; Lon L. Fuller, Anatomy oI the Law (1968);
Lon L. Fuller, The Law in Quest oI ItselI (1940).

9
park would thus, Ior Fuller, not only be silly, but would also be inconsistent with the
deeper nature oI law itselI. This aspect oI the connection between the interpretive debate
and the debate about the nature oI law is closer Ior Fuller than its counterpart is Ior Hart,
but it is still neither obvious nor necessary, and thus it may be Iair to conclude that the
vehicles-in-the-park example and its surrounding debate was largely, even iI not
completely, unattached to many oI the loItier moral and conceptual issues that were an
important part oI the debate.

The lack oI a close connection between the interpretive debate and the conceptual
one, however, is better seen as a strength and not a weakness. The value oI Hart`s
example transcends his own use oI it, and so too Ior Fuller`s counter-example. For not
only would one would be hard-pressed to Iind a question about legal reasoning that is
unconnected with one or the other position in the interpretive debate, but the questions oI
interpretation over which Hart and Fuller tussled are also serious and enduring ones even
when the issue oI the nature oI the concept oI law is Iar in the distance.

II. An Unfortunate Example
Fuller was oI course compelled to take Hart`s example as Hart presented it. But
in terms oI how we can best understand Fuller`s larger point, an example using the word
'vehicle might turn out to be distracting.
19
In order to see why this is so, we must take

19
Hart almost certainly drew the example Irom McBoyle v. United States, 283 U.S. 25
(1931), a case in which the question was whether an airplane was a vehicle Ior purposes
oI a Iederal statute prohibiting transporting a stolen vehicle across state lines. I suspect
that Hart learned oI the case while at the Harvard Law School in 1957-58, and that Hart
learned oI it Irom Henry Hart, or Albert Sacks, or possibly even Irom Fuller himselI. On
10
the debate to a higher level oI generality. That is, we have to see that the question was
not only the Iamiliar one about the potential conIlict between the text oI a rule and its
purpose
20
between the letter oI the law and its spirit but about legal Iormality in all oI
its (deIensible) guises.
21
The question the debate about vehicles in the park raises is the
question oI the ever-present potential Ior conIlict between the letter oI the law (about
which much more will be said in the Iollowing section) and what would otherwise be the
best (Iairest, wisest, most just, most optimal, etc.) resolution oI some legal dispute or the
best answer to some legal question. II the straightIorward reading oI the law produces a
ridiculous or even merely suboptimal outcome, are legal actors required or even
permitted to reach the right outcome instead oI the outcome seemingly mandated by the
plain meaning oI the words on the page?

In order to Irame this recurring conIlict in the crispest possible way, it is
important that Iollowing the letter oI the law really does produce a poor outcome. And
Ior this purpose the word 'vehicle might not do the trick. It is at least a colorable
understanding oI the word 'vehicle that something is not a vehicle unless, at the time we

Hart`s sojourn at Harvard and the circumstances in which the article was written, see
Nicola Lacey: A LiIe oI H.L.A. Hart, The Nightmare and the Noble Dream (2005).

20
See Aharon Barak, Purposive Interpretation in Law (Sari Bashi trans., 2005).

21
See Frederick Schauer, Formalism, 97 Yale L.J. 509 (1988); Cass R. Sunstein, Must
Formalism Be Defended Empiricallv?, 66 U. Chi. L. Rev. 636 (1999). Legal Iormality is
deIensible not when it denies the extent to which a judge is exercising a genuine choice
when it treats choice as compulsion as in Justice Peckham`s opinion in Lochner v. New
York, 198 U.S. 45 (1905), but when it recognizes that guidance and constraint by precise
language is oIten possible and sometimes desirable. In this latter sense, what some call
'Iormalism others would label 'objectivity. See Kent Greenawalt, Law and Objectivity
(1992); Kent Greenawalt, How Can Law Be determinate?, 38 UCLA L. Rev. 1 (1990).

11
are applying the label, the thing we are describing has the capacity Ior selI-propulsion, or
at least Ior movement. II it can`t move, it might be said, it is not a vehicle.
22
It might be
a Iormer vehicle, or a quasi-vehicle, or even a vehicle in progress, but to be a real vehicle
it has to be able to move.

II this understanding oI at least one meaning oI the word 'vehicle is plausible,
then it is no longer clear that the truck which has been 'mount|ed| on a pedestal as a
military memorial is even a vehicle at all. We have all seen bronzed cannons,
immobilized tanks, and Ilightless airplanes used as war memorials, and a tank or a
truck, Ior that matter with all oI its moving parts removed or welded Iixed might not
strike everyone as being a vehicle at all. And that conclusion might not be much
diIIerent iI the truck used as a war memorial consisted oI an otherwise Iully Iunctioning
vehicle Fuller did use the description, 'in perIect working order -- that was placed in a
locked enclosure, or bolted to a base, or perhaps even simply had its battery or keys
removed. At some point on a continuum these Iormer vehicles move Irom non-vehicles
the bronzed and welded tank to vehicles the Iully operational truck with the keys
removed but the point is that the issue might be seen as debatable.
23
Some degree oI
Iunctionality may, and only may, be one oI the necessary conditions Ior something being

22
Not only might it be said, it has been said. The Shorter Oxford English Dictionarv
includes within its deIinition that to be a vehicle something must be a 'means oI
conveyance and must me 'used Ior the carriage oI persons or goods. 2 The Shorter
OxIord English Dictionary 2340 (1964).

23
But only barely. The Iamiliar phrase 'disabled vehicle makes sense only because
vehicles that do not work are still vehicles. In an imaginary debate between Fuller and
the person who objects that the truck is no longer a vehicle, Fuller has the better oI it, but
not by so much as to render the example perIect Ior his purposes.

12
a vehicle at all, and insoIar as this is so then the example becomes a bit murky on the
conIlict between what the rule clearly requires and what the best result would clearly be.
II the truck/memorial is possibly not a vehicle at all, then the conIlict dissolves, and the
point oI the example is lost.

Not so, however, with some number oI other examples. Indeed, Fuller, perhaps
recognizing potential objections to the word 'vehicle, himselI provides a diIIerent
example himselI. A page aIter talking about trucks being used as war memorials, he asks
us to imagine a tired businessman who has missed his train, and nods oII in the station
while waiting Ior the next one. In doing so, however, he runs aIoul oI the 'no sleeping in
the station rule, a rule plainly designed, says Fuller, as a restriction on the homeless (this
being 1958, Fuller calls them 'tramps), who might seek to use the station as their
residence.

This turns out to be a better example. Sleep is a physiological state, and Irom the
perspective oI physiology Fuller`s businessman was sleeping. Period. It is true that there
are uses oI the word 'sleep that do not require physiological sleep, as when sleep is a
synonym or euphemism Ior 'have sex, or when it is used to described a computer that
has gone into low-power mode, but there are Iew instances oI the reverse. II you are
physiologically sleeping you are almost always sleeping in ordinary language, even iI
sometimes when you are sleeping in ordinary language you are not always
physiologically sleeping. And iI this is so, then the 'no sleeping in the station example
is a better one than the prohibition on vehicles in the park, because now the conIlict
13
between what the rule on its Iace requires and what a good outcome would be becomes
much crisper and substantially less open to challenge on deIinitional grounds.

The same crispness oI conIlict is also apparent in the now-prominent example oI
Riggs v. Palmer.
24
The Iorce oI using Riggs as an example oI one dilemma oI legal
reasoning is that the case also presents a well-deIined opposition between what a rule
says and what the morally right or sensibly right or all-things-considered right answer
should be. InsoIar as the New York version oI the Statute oI Wills as it existed in 1889
said plainly that anyone named in a will would inherit except in cases oI Iraud, duress, or
incapacity at the time the will was made,
25
then Elmer Palmer should clearly inherit
according to the language oI the statute
26
even though his killing oI his grandIather, the
testator, makes this a morally abhorrent result. We now associate the case with Ronald
Dworkin,
27
and with the Hart and Sacks materials on the Legal Process,
28
but Riggs as

24
22 N.E. 188 (N.Y. 1889).

25
It is noteworthy that both the majority and the dissent in Riggs share this understanding
oI what the plain meaning oI the statute required. Judge Earl Ior the majority said that
'|i|t is quite true that statutes regulating the making, prooI, and eIIect oI wills and the
devolution oI property, iI literally construed, and iI their Iorce and eIIect can in no way
and under no circumstances be controlled, or modiIied, give this property to the
murderer. 22 N.E. at 189. And in dissent, Judge Gray insisted that 'the very provision
deIining the modes oI alteration and revocation implies a prohibition oI alteration or
revocation in any other way. 22 N.E. at 192. For both the majority and the dissent,
thereIore, the Iacts oI Riggs presented an inescapable conIlict between the plain meaning
oI the statute and the best, Iairest, or most just result.

26
Which is decidedly not the same as saying 'should clearly inherit according to the
law, which is precisely the matter at issue.

27
Ronald Dworkin, Law`s Empire 15-20 (1986); Ronald Dworkin, Taking Rights
Seriously 23-31 (1978).

14
well as the sleeping businessman would have been clearer examples Ior Fuller than one
using the word 'vehicle, a word that is linguistically problematic in just, Ior Fuller, the
wrong way.

So although some might quibble over whether the military truck ceased being a
vehicle at the moment it was mounted on a pedestal to become a war memorial, this is a
peculiarity only oI the example. The literature on statutory interpretation is replete with
instances in which the conIlict between the plain meaning oI the most immediately
applicable legal item and simple good sense is Iar less escapable, whether they be real
cases like United States v. Kirbv
29
and Church of the Holv Trinitv v. United States
30
or
hypothetical ones like PuIendorI`s surgeon who in perIorming an emergency operation
ran aIoul oI the prohibition on 'letting blood in the streets.
31
We should not get hung
up on the word 'vehicle, thereIore, Ior the point oI Fuller`s counter-example oI the
vehicle that has become a war memorial is a point that Iar transcends the peculiarities oI
the particular word.


28
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application oI Law 68-102 (William N. Eskridge, Jr. & Philip P. Frckey,
eds., 1994).

29
74 U.S. (7 Wall.) 482 (1868) (holding that statute prohibiting obstructing the mail did
not extend to a law enIorcement oIIicer arresting a mail carrier).

30
143 U.S. 457 (1892) (holding that statute prohibiting paying passage oI Ioreign labor
was not violated by a church that had hired a new pastor Irom abroad).

31
Samuel von PuIendorI, De Jure Naturae et Gentium Libro Octo (1672), as described in
1 William Blackstone, Commentaries *59-60.

15
The example oI the no-vehicles-in-the-park rule turns out to be doubly
unIortunate because it also allows Fuller mistakenly to suppose that Hart`s argument
turns on the meaning oI individual words taken in isolation. Fuller stresses that Hart`s
mistake is in thinking that a single word by itselI can tell us what a rule means, but Hart
makes no such claim. Indeed, had Hart anticipated that Fuller would call him on this
point, he might have used a better example, and perhaps the statutory language in a case
like Riggs, or, better yet, Kirbv, would have been preIerable. For although it is pretty
clear what the language, 'willIully obstruct or retard the passage oI the mail, or || any
driver or carrier . . . , in the statute at issue in Kirbv means, very Iew questions oI
meaning, and not the question at issue in Kirbv itselI, would Iocus on any one oI those
words in isolation. So although Hart used an example that turned out to be susceptible to
Fuller`s mis-aimed charge, nothing in Hart`s larger point is inconsistent with the (correct)
view that it is sentences and not individual words that are the principal carriers oI
meaning.
32
Hart`s claim, at least in 1958, was that the statutory language, as language,
would generate some number oI clear or core applications, and this is a claim that does
not at all depend on whether it is this or that particular word in a rule or statute that is
expected to carry most oI the load.

III. The Meaning of Meaning
33


32
See W.V. Quine, Naturali:ed Epistemologv, in Ontological Relativity and Other Essays
69, 72 (1969) (understanding 'contextual deIinition as the 'recognition oI the sentence
as the primary vehicle oI meaning).

33
With apologies to Ogden and Richards. See C.K. Ogden & I.A. Richards, The
Meaning oI Meaning (1923).

16
Fuller`s challenge to Hart`s theory oI meaning is broader than just the question
whether it is the word or the sentence that is the principal transmitter oI meaning. For
Fuller, Hart`s mistake in thinking that words can have meanings in isolation is the
mistake oI ignoring the importance oI context, oI ignoring the maxim that meaning is use,
and, in essence, oI not having read his Wittgenstein.
34
Once we recognize that meaning
is use, Fuller appears to argue, we cannot avoid the Iact that it is the use in the particular
context that is the appropriate unit oI understanding. And iI we appreciate this
understanding oI contextual deIinition, he seems to be saying, then we must realize that,
in the particular context oI applying a rule prohibiting vehicles Irom the park to a
particular military truck used as a war memorial, the alleged vehicle may simply not be a
vehicle at all.

But even iI Fuller were right (which he was not) about Hart being committed to a
so-called pointer theory oI meaning and that Hart believing that the chieI unit oI meaning
was the word, it does not Iollow that meaning resides solely or even principally in the Iull
context in which words and sentences were used. This is a common view,
35
but its
ubiquity, like the ubiquity oI belieI in the explanatory validity oI astrology, is no
indicator oI its soundness. For iI meaning only existed in the particular context in which
words and sentences are used, it is hard to see how we could talk to each other. It is true

34
Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe, trans., 1956).

35
See, e.g., Stanley Fish, Is There a Text in This Class? 269 (1980); James Boyle, The
Politics of Reason. Critical Legal Theorv and Local Social Thought, 133 U. Pa. L. Rev.
685(1985); Stanley Fish, Almost Pragmatism. Richard Posners Jurisprudence, 57 U.
Chi. L. Rev. 1447, 1456 (1990); Stanley Fish, Fish v. Fiss, 36 Stan. L. Rev. 1325, 1332
(1984).

17
that the compositional nature oI language the ability to understand sentences we have
never heard beIore -- is one oI the hardest and most complex oI questions about the
nature oI language, but anything even residing in the neighborhood oI the 'meaning is
use on a particular occasion view oI language Iails even to address the compositional
problem. Without knowing something about words and sentences and grammar and
syntax as general or acontextual rules (or, even better, conventions), we could not hope
ever to understand each other. The Iull particular context may indeed add something or
even a great deal to our understanding, but we will understand virtually nothing at all
about 'the cat is on the mat unless we understand that this sentence carries meaning by
drawing on shared acontextual understandings oI the Iacts that the word 'cat reIers to
cats, that the word 'mat reIers to mats, and that the words 'is on reIer to a certain kind
oI relationship that diIIers Irom the relationship described by phrases such as 'is under,
'is near, or 'is a.
36


When Wittgenstein, J.L. Austin,
37
and all oI their Iellow travelers in Cambridge
and OxIord, respectively, talked about meaning being use, they were talking not about
particulars but about rules, or conventions. And they were talking about the rules or
conventions that constitute any language. The way the word 'cat is used in a particular
linguistic community is what determines the meaning oI the word 'cat, but it is the

36
See Peter Strawson, On Referring, in Essays on Conceptual Analysis 30, 30 (Antony
Flew, ed., 1956). See also Michael Dummett, The Interpretation oI Frege`s Philosophy
364 (1981); John Searle, Literal Meaning, in Expression and Meaning 117 (1979); Paul
ZiII, On H.P. Grices Account of Meaning, 28 Analysis 1, 7 (1967).

37
J.L. Austin, How to Do Things With Words (J.O. Urmson & M. Sbisa, eds., 1962).

18
linguistic communitv that is the key here. That community could decide (in a non-
conscious sense oI that word) over time that the word 'cat would reIer instead to dogs or
sheep or sealing wax, and in just that sense the meaning oI a word or, better, a sentence,
is a Iunction oI how that sentence is now used by the relevant linguistic community.
Still, nothing in the view that linguistic communities determine meaning by how they in
Iact use language entails the view that meaning is entirely or even largely a Iunction oI
how particular individuals use language on particular occasions. In baseball there used to
be, prior to the modern era oI inter-league play, a diIIerence between a strike in the
American League and a strike in the National League, even though the umpires in the
respective leagues both purported to be interpreting the same words in the same written
book oI rules, but nothing about the diIIerence between National League strikes and
American league strikes suggested that an American League umpire was Iree to call balls
and strikes according to National League criteria. II he did so, he would have been
criticized or otherwise sanctioned, and that would have been because he had violated a
rule that admittedly reIlected a continuously changing practice, but that had enough
short-term stability or Iixity in the Iace oI longer-term adaptability and Ilexibility that we
can usually understand at a given point oI time who is Iollowing the rules and who is
breaking them. The Iact that the Constitution adopted in 1787 reIerred to a 'republican
Iorm oI government does not mean that we cannot now distinguish the party aIIiliation
oI Barack Obama Irom that oI John McCain. And it is hardly nonsense to speak oI
standing still while on a moving train. Although the conventions oI language change
over time, they still have the capacity to carry meaning at any given time, and this
conclusion applies to less to the language oI the law than it does to language in general.
19
In parroting the 'meaning is use slogan that was at the time even more common than it
is now, Fuller Iailed to understand the basic problem oI language our ability to
understand sentences we have never heard, people we have never met, and propositions
we have never previously encountered. And thus Fuller Iailed to understand why as an
American English-speaking lawyer I can understand Iar more on a Iirst reading oI a New
Zealand statute about corporate insolvency, a subject about which I am completely
ignorant, than I can on a Iirst reading oI a French code provision about Ireedom oI
expression, a subject about which I have considerably more knowledge.

Fuller`s misguided Ioray into the philosophy oI language is ironic, because it
damaged his own case. InsoIar as he wished to employ the military truck/war memorial
example to illustrate how legal language may not always produce the correct all-things-
considered result, or not always accurately reIlect a rule`s purpose, Fuller needed to rely
on the Iact that legal language transmitted meaning apart Irom its particular application.
The vividness oI Fuller`s counter-example stems precisely Irom the Iact that the truck is a
vehicle.
38
II Fuller had instead oIIered the counter-example oI a veterans group that
wished to plant a bed oI poppies as a war memorial, we would have thought him daIt,
because it is implausible that a bed oI poppies would be prohibited by a 'no vehicles in
the park rule. Only because a truck is a vehicle in the way that a bed oI poppies is not
does the example have his sting, and it may be that, like pitchers trying to explain the
physics oI the curveball or artists venturing into philosophical aesthetics, Fuller`s

38
The statement in the text is subject to the qualiIications in the previous section.

20
examples demonstrated an intuitive and correct understanding oI the problem which his
explanations served only to undercut.

* * *

A related problem arises with respect to the distinction between plain and
ordinary meaning. Putting aside any question about words as opposed to sentences,
Hart`s point was basically a point about plain meaning. An automobile is plainly a
vehicle, Hart argues, but the Iact that what counts as a vehicle in ordinary language is
(usually) the same as what counts as a vehicle in legal language does not mean that law is
committed to the ordinary meaning oI ordinary terms.

There are times when law uses language oI its own making, oIten in Latin
replevin, assumpsit, quantum meruit, habeas corpus, res judicata and sometimes even in
English bailment, demurrer, due process, joinder, interpleader, easement. Such terms
have little iI any meaning Ior the layperson, but they can still have plain meanings in law
and Ior lawyers and judges. And as long as one believes in anything close to plain or
literal meaning at all,
39
such terms, when used inside the legal world, do not present
special problems. Like the words oI ordinary language, the meaning here is determined
by the rules oI use oI the relevant linguistic community, but here that community is the
community oI legal actors rather than oI the men on the Clapham omnibus.

39
For my own longer discussion oI plain or literal meaning in the context oI rules, see
Schauer, Plaving Bv the Rules, supra note 9, at 53-64.

21

Things become somewhat more problematic, however, when terms have both
ordinary and technical legal meanings. We know that 'due process in the FiIth and
Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart.
The women on the D train are no more likely ever to use the term than are the men on the
Clapham omnibus. But that is not the same with 'speech and 'religion in the First
Amendment, or 'arms in the Second, or 'search in the Fourth. Here there are both
ordinary and legal meanings, and the question is about the relation between them. And
so too outside oI constitutional law, where words such as 'trespass, 'complaint, and
even 'contract have legal meanings that diverge Irom their non-legal ones.

This is not the place to engage in an in-depth analysis oI the relationship between
ordinary language and legal language.
40
My point here is only that there is nothing about
the existence oI law itselI as a relevant linguistic community that entails that every person
is his or her own linguistic community. Just as there can be plain (legal) meanings oI
terms like replevin and bailment, so can there be plain (legal) meanings oI terms like
'speech and 'contract. That Hart and Fuller were debating, in part, about the extent to
which plain meaning is dispositive in the interpretation or application oI a Iormulated
rule says nothing about whether that meaning need be ordinary or technical whether the
terms be everyday ones or terms oI art. And although Fuller does not exactly say this,
one senses a Ilavor in Fuller`s challenge oI the belieI that iI law can be a relevant

40
A good exploration oI the issues is Mary Jane Morrison, Excursions into the Nature of
Legal Language, 37 Cleve. St. L. Rev. 271 (1989).

22
linguistic community and a relevant linguistic context, then there is no limit to the
smallness oI the context that should concern us. This is a mistake, and a mistake about
the relationships between language and community and between language and rules, but
it is not a mistake that detracts Irom the basic problem. Sometimes language will simply
give the wrong answer, and the problem Ior law is the problem oI what, iI anything, to do
about it.

IV. Cores, Penumbras, and Open Texture
Hart employs the 'no vehicles in the park rule as a way oI explaining the
problem oI the penumbra, but it is important to recognize that there are two very diIIerent
kinds oI penumbral problems, problems signaled in Hart`s 1958 contribution but not
developed more Iully until The Concept of Law three years later.

One kind oI penumbral problem, iI we can even call it that, is the problem oI
pervasive vagueness.
41
Although Hart Iocused on statutes with a clear core and a vague
penumbra, some legal rules resemble penumbra all the way through. Setting aside Ior the
moment those intentionalist theories oI interpretation that would Iind in the draIters`
mental states a clear set oI intended applications,
42
certain language is so vague as Ior

41
For comprehensive analytic discussions oI vagueness in law, see Timothy A.O.
Endicott, Vagueness in Law (2000); Timothy A.O. Endicott, Jagueness and Legal
Theorv, 3 Legal Theory 37 (1997); Jeremy Waldron, Jagueness in Law and Language.
Some Philosophical Issues, 82 Cal. L. Rev. 509 (1994).

42
See, e.g., Raoul Berger, Government By Judiciary: The TransIormation oI the
Fourteenth Amendment (1977); Richard S. Kay, Adherence to Original Intentions in
Constitutional Adfudication. Three Obfections and Responses, 82 Nw. U.L. Rev. 226
(1988).
23
there to be nothing clear at all. Without recourse to intentions (or possibly, as Justice
Scalia would have it, to potentially narrower contemporaneous meanings
43
), there may be
no clear cases oI which searches and seizures are 'unreasonable under the Fourth
Amendment, which Iorms oI inequality are the Iocus oI the Fourteenth Amendment`s
prohibition on the denial oI the 'equal protection oI the laws, when a 'contract,
combination, . . . or conspiracy is in 'restraint oI trade or commerce Ior purposes oI
the Sherman Antitrust Act,
44
which custody decisions are 'in the best interests oI the
child, and just how Iast one may drive when the only relevant rule says simply that
driving must be 'reasonable and prudent.
45
With respect to such statutes, there is no
reason to believe that Hart would not have taken the position that all applications
(questions oI precedent and stare decisis aside) oI such rules would have required an
exercise oI judicial discretion, and that judicial discretion necessarily requires recourse to
extra-legal Iactors. And there is no reason to believe that Fuller would have disagreed,
except oI course with the designation oI such Iactors as 'extra-legal. So although this
kind oI pervasive vagueness is widespread, and although it requires the type oI judicial
behavior that Hart saw in the penumbras around clearer cores, this is not an issue about


43
Antonin Scalia, A Matter oI Interpretation 3, 38 (1997). For a careIul and balanced
exploration oI the position, see Caleb Nelson, Originalism and Interpretive Conventions,
70 U. Chi. L. Rev. 519 (2003).

44
15 U.S.C. 1 (2006).

45
See Mont. Code Ann. 61-8-303 (1996), invalidated in State v. Stanko, 974 P.2d 1132
(Mont. 1998). See Robert E. King & Cass R. Sunstein, Doing Without Speed Limits, 79
B.U.L. Rev. 155 9199).

24
which Hart and Fuller, except perhaps Ior terminology, would have had much
disagreement.

So what then is a penumbra? Here Hart borrows in part Irom Bertrand Russell,
who in his enduring article on 'Vagueness in 1929 drew a distinction between the
'core and the 'Iringe,
46
but even more on Friedrich Waismann, whose elaboration oI
Wittgensteinian themes brought us the idea oI 'open texture.
47
Russell was concerned
principally with line-drawing and boundaries, and it was he who gave us the example oI
baldness as a way oI showing that the inability to draw a sharp demarcation between two
words or concepts did not mean that there was no distinction to be had. So in this variant
on the classic paradox oI Sorites,
48
Russell asked us to recognize that although there
might be some cases in which we would be unsure about whether a man was bald or
not,
49
this did not mean that there were not men who were clearly bald and men who were
clearly not. And so too with vehicles. The line between a vehicle and a non-vehicle is
Iuzzy and this is presumably what Hart had in mind in oIIering bicycles, roller skates,
and toy automobiles as examples but this does not mean, Hart argued, that standard

46
Bertrand Russell, Jagueness, 1 Australasian J. Phil. 84 (1923).

47
Friedrich Waismann, Jerifiabilitv, in Logic and language: First Series 117 (A.G.N.
Flew ed., 1951).

48
See Linda C. Burns, An Investigation into Natural Languages and the Sorites Paradox
(1991); Timothy Williamson, Vagueness (1994); Dominic Hyde, Sorites Paradox, in
StanIord Encyc. Phil., available at http://plato.stanIord.edu/entries/sorites-paradox. The
paradox oI baldness, falakros, in Iact has the same origin Eubulides oI Miletus as the
paradox oI sorites, the heaper. Id.


49
Ten or so years ago, I used to see an example oI this when I looked in the mirror.

25
ordinary automobiles are not clearly vehicles, nor, he might have said, that lovers quietly
strolling hand-in-hand in the park are not non-vehicles. In this respect, the penumbra
consists oI those anticipated applications oI a term that we now know will present
uncertainties or indeterminacies, just as we now know that a rule requiring drivers to
have their lights on aIter dark will be vague with respect to dusk, and that the mostly
clear distinction between Irogs and tadpoles will become vague at some point on a
tadpole`s journey towards becoming a Irog. In oIIering the example oI the 'no vehicles
in the park rule, and in speaking oI the core and the penumbra, Hart was presumably
asking us to see that Ior many or even most rules, we can even at the time oI draIting
imagine that there will be hard cases as well as easy ones,
50
but that the existence oI the
hard ones, the indeterminacy claims oI the Realists notwithstanding, did not mean that
there were not easy ones as well, just as there are clear examples oI Irogs, tadpoles, night,
day, and, oI course, vehicles.

Waismann`s valuable addition to what was at his time well known about
vagueness was the conclusion that it is impossible to eliminate the potential Ior
vagueness in even non-vague terms, and this is the phenomenon he called 'open
texture.
51
Even the most precise term has the potential Ior becoming vague upon

50
Which is not to say that there will be clear lines between the hard cases and the easy
ones. See Timothy A.O. Endicott, Law is Necessarilv Jague, 7 Legal Theory 379 (2001).

51
A generation oI law proIessors (who shall remain unnamed here), perhaps attempting to
look sophisticated, has understood 'open texture to be synonymous with 'vagueness.
As Waismann made very clear, the two are not the same, and he used the term 'open
texture to reIer to the ineliminable potential Ior vagueness surrounding even the clearest
oI terms. Hart unIortunately Iostered some oI the problem, because in The Concept of
Law (at 127) we see the phrase 'vagueness or open texture, which in context was
26
conIronting the unexpected, Waismann argued, and so no amount oI precision can wall
oII every possibility oI Iuture but now unIoreseen and even unIoreseeable vagueness.
When Hart`s Iriend and Waismann`s contemporary J.L. Austin talked oI the 'exploding
goldIinch,
52
he vividly captured the same idea, Ior his point was that even iI we could
now describe with total precision the necessary and suIIicient conditions Ior goldIinch-
ness, we 'would not know what to say 'words would Iail us -- when conIronting a
creature that was a goldIinch according to all oI the existing criteria, but which then
proceeded to explode beIore our eyes. In other words, the unexpectedly exploding
goldIinch would render vague what we had previously thought clear, just as the
unexpectedly vehicle-like war memorial would render vague what might have been
thought to be the clear part oI the no-vehicles-in-the-park rule.

Fuller`s example oI the truck/memorial thus presents an interesting question with
respect to the idea oI open texture. Fuller presented the example as a case involving legal
uncertainty arising Irom linguistic certainty, or at least should have, and it raises an
important question with respect to the relationship between linguistic open texture and
what we might think oI as legal open texture.
53
It is certainly possible to imagine legal

ambiguous as to whether Hart was describing two diIIerent phenomena or whether he
was merely providing two terms Ior the same idea.

52
J.L. Austin, Other Minds, in Philosophical Papers 76, 88 (J.O. Urmson & G.J.
Warnock, eds., 3d ed., 1979).

53
See Frederick Schauer, On the Supposed Defeasibilitv of Legal Rules, in Current Legal
Problems, 1998 (M.D.A. Freeman ed., 1998); Neil MacCormick, Defeasibilitv in Law
and Logic, in InIormatics and the Foundations oI Legal Reasoning 99 (Zenon Bankowski,
Ian White, & Ulrike Hahn, eds., 1995); Richard Tur, Defeasibilism, 21 OxIord J. Legal
Stud. 355 (2001).
27
uncertainty arising out oI unexpected linguistic uncertainty, and iI we had a statute that
protected goldIinches as, say, endangered species or national symbols,
54
a sudden
awareness oI the existence oI an exploding goldIinch would have made the law uncertain
would have produced an indeterminate application -- just because that event would
have made the language in which the law was written uncertain as well.

More commonly, however, and this is the point oI Fuller`s example, as well as
PuIendorI`s, as well as that in real cases like Riggs, Kirbv, and Church of the Holv
Trinitv,
55
our language does not Iail us but our law does. The language is clear, and the
application is linguistically clear, but Iollowing the clear language will lead to what
appears to be a wrong or unjust or unwise or inequitable or silly result. In such cases we
do not have linguistic open texture, but we might have legal open texture, and it is in such
cases that the law must decide what to do. For Fuller, the law should always in such
cases seek to come up with the reasonable result, and Irom this premise Fuller derives the
conclusion that there are no purpose-independent clear, easy, or core cases. And,
interestingly, Hart may not have completely disagreed with Fuller about the proper
outcome oI the truck/memorial case, although he might have disagreed with the route that
Fuller took to get there. When Hart says in The Concept of Law that legal rules are
necessarily always subject to exceptions, and that the grounds Ior creating such


54
Imagine, iI you will, the case oI the exploding bald eagle.

55
Church oI the Holy Trinity v. United States, 143 U.S. 457 (1892).

28
exceptions cannot be speciIied in advance,
56
we see in Hart the through-and-through
mentality oI the common lawyer. Common law rules are always subject to modiIication
at the moment oI application, and it is characteristic oI the common law that it treats a
ridiculous or even somewhat suboptimal outcome generated by an existing common law
rule as the occasion Ior changing the rule. II 'no vehicles in the park were a common
law rule, there is little doubt that Hart would have expected the common law judge to
change the rule into 'no vehicles in the park except Ior war memorials, or something oI
that sort. And indeed Hart verges on suggesting in his discussion oI the always-open
'unless clause that this is not only a characteristic oI the common law, but a necessary
Ieature oI law and a necessary Ieature oI rules.

In this Hart was mistaken. As most civil lawyers would understand, and as
Jeremy Bentham would have applauded,
57
sometimes the language oI a rule generates a
bad result, and sometimes we have to live with that bad result as the price to be paid Ior

56
Hart had made a seemingly similar claim earlier when he said that legal concepts could
not be deIined except with 'the aid oI a list oI exceptions or negative examples. H.L.A.
Hart. The Ascription of Responsibilitv and Rights, 49 Proc. Arist. Soc. (New Series) 171,
176 (1948-49). But by itselI this is a mild and almost certainly sound claim. It was not
until Hart added in The Concept of Law that the list oI exceptions could never be
speciIied in advance that law was necessarily continuously open to new exceptions
that the claim became more debatable. A claim similar to Hart`s can be Iound in Neil
MacCormick, Law as Institutional Fact, 90 L. Q. Rev. 102, 125 (1974) (claiming that
listing all oI the known exceptions to a legal rule would be insuIIicient to know when a
legal rule would apply).

57
Bentham would have preIerred a code so precise and prescient that such a thing could
never have occurred, but his skepticism about judges, judicial power, and the common
law was so pervasive that he would hardly have approved oI allowing to judges the
updating Iunction that is well-recognized (see Guido Calabresi, A Common Law Ior the
Age oI Statutes (1982)) in common law countries. See Jeremy Bentham, OI Laws in
General (H.L.A. Hart ed., 1970).

29
reIusing to empower judges or bureaucrats or police oIIicers with the authority to modiIy
the language oI a rule in the service oI what they think, perhaps mistakenly, is the best
outcome.
58
This is the argument Ior a plausible Iormalism, and in this respect Hart`s
commitment to the continuous Ilexibility oI the common law may have made him no
more oI a Iormalist than Fuller.

V. The Nature of the Debate
So what were Hart and Fuller Iighting about, we might now ask? That this is the
right question to ask is even more apparent in light oI what might appear to some to be
Hart`s 'concession in the PreIace to Essavs in Jurisprudence and Philosophv.
59
Here
Hart acknowledged that the distinction between the core and the penumbra was not
necessarily, at least in law, located in the language in which a rule is written. The law
could, Hart concedes, distinguish the core Irom the penumbra on the basis oI purpose, or
intent, and were the law to do so, it might Iind ourselves excluding the truck/vehicle Irom
the reach oI the rule, and thus allowing it to be erected in the park.

At this point it appears that the debate has become, in part, an empirical one.
Fuller can be best understood as claiming that the reasonable and purpose-based
interpretation oI the 'no vehicles in the park rule is a necessarv Ieature oI law properly

58
See John Manning, The Absurditv Doctrine, 116 Harv. L. Rev. 2387 (2003); Adrian
Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74 (2000). See also Robert E. Scott,
The Case for Formalism in Relational Contract, 94 Nw. U.L. Rev. 841 (2000) (applying
same theme to judicial interpretation oI contracts).

59
H.L.A. Hart, Essays in Jurisprudence and Philosophy 8 (1983).

30
so called.
60
And, iI we Iorgive Hart Ior what he said about 'unless in The Concept of
Law, Hart might now be understood, post-concession, as saying that the recourse to
purpose or common sense is a possible and even arguably desirable Ieature oI a legal
system, but that it is not a necessary component oI the concept oI law.

This is a real disagreement about the concept oI law, but it also represents an
empirical disagreement. Fuller is arguing not only that his purpose-Iocused approach is a
necessary Ieature oI law properly so called, but also that it is an accurate description oI
what most judges and other legal actors would actually do in most common law
jurisdictions. On this point Hart might well be read as being agnostic, but there is still a
tone in Hart oI believing that Fuller not only overestimates the role oI purpose in
understanding the concept oI law, but may well also be overestimating the role oI
purpose, and underestimating the role oI plain language, in explaining the behavior oI
lawyers and judges. And iI this is not what Hart would have said, and it may not have
been, then it may well be what he should have said.
61


Thus, although much oI the debate appears to be a non-empirical one, it also has
an empirical side, a side in which Fuller and Hart are hinting at opposing descriptions oI
the role oI language-determined cores in producing actual legal outcomes in actual legal

60
For a similar argument that an equitable override oI inequitable statutory or common
law outcomes is a necessary Ieature oI law itselI, see Tur, supra note 53.

61
On the extent to which Hart can be understood as making empirical claims, admittedly
sub silentio, about the operation oI the legal systems he knew best, see Frederick
Schauer, The Limited Domain of the Law, 90 Va. L. rev. 1909 (2004); Frederick Schauer,
(Re Taking Hart, 119 Harv. L. Rev. 852 (2006) (book review).

31
systems. Moreover, even as Hart conceded that the core oI a rule might be determined by
something other than the plain meaning the rule`s language, he did not go so Iar as
conceding that anything other than Iirst-level purpose the purpose oI a particular rule
might take the place oI language in distinguishing the core Irom the penumbra. In this
respect Hart may well have bridled at the possibility that when the purpose oI a rule as
well as its language still produced a poor outcome Irom the perspective oI broader
conceptions oI justice, Iairness, eIIiciency, or wise policy, it would be appropriate Ior a
judge to set aside both the rule and the policy behind it, although Fuller may well have
been more sympathetic, although we cannot know Ior sure.

Seen in this way, the example oI the 'no vehicles in the park rule also suggests a
real debate about the role oI the judge. One way oI understanding Fuller, and possibly
understanding theorists such as Ronald Dworkin
62
and Michael Moore as well,
63
is as
believing that the good judge is one who sets aside the plain language oI the most directly
applicable legal rule in the service oI purpose, or oI reasonableness, or oI making law the
best it can be, or oI integrity, or oI simply oI doing the right thing. Dworkin`s sympathy
with the outcome in Riggs makes this clear Ior him and Fuller`s only slightly less overt
sympathy Ior his mythical Justice Foster in The Speluncean Explorers
64
is in the same
vein. So then the question is a slightly diIIerent one. II the plain meaning oI a rule, or oI

62
Dworkin, Law`s Empire, supra note 27; Dworkin, Taking Rights Seriouslv, 27.

63
Michael Moore, A Natural Law Theorv of Interpretation, 58 S. Cal. L. rev. 27 (1985);
Michael Moore, The Semantics of Judging, 54 S. Cal. L. Rev. 151 (1981).

64
Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949).

32
'the law, positivistically understood,
65
generates a wrong, silly, absurd, unjust,
inequitable, unwise, or suboptimal outcome (and these are not all the same thing), then is
it the job oI the judge to do something about it? This is a question oI role morality, and
just as some would argue that justice is best done iI lawyers Iight Ior their clients and not
justice, that truth may emerge Irom the clash oI oIten Ialse ideas, and that economic
progress Ior all comes Irom the invisible hand oI the market while individual economic
actors pursue only their own well-being, it might be the case that the best legal system is
one in which individual judges do not seek, or at least do not always seek, to obtain the
all-things-considered best outcome. Neither Hart nor Fuller addresses this issue directly,
but one cannot help believing that on this question it is Fuller who Iar more likely sees
the justice-seeking judge and Hart who might understand that in law seeking justice is not
always or necessarily part oI the job description oI either the lawyer or the judge.
66


VI. Who Won?
I am sure that there are people who cannot see a debate without insisting that we
pick a winner and a loser. Many oI those same people cannot see a list or collection oI
two or more items without ranking the items on the list. But we are not choosing

65
For the conception oI positivism that inIorms this statement, a conception that Iinds its
roots in Bentham, Austin, and, more controversially, Hart, but a conception that is
decidedly non-standard in some oI the current debates, see Frederick Schauer, The
Limited Domain of the Law, supra note 61.

66
This diIIerence oI opinion between Fuller and Hart may have been partly a Iunction oI
the Iact that Fuller seems more interested in talking to lawyers while Hart is more
interested in a more external description oI the operation oI the law, albeit one including
an external description oI a judge`s internal point oI view. See Frederick Schauer,
Fullers Internal Point of Jiew, 12 L. & Phil. 285 (1994).

33
between Hart and Fuller Ior a single position on a law Iaculty. They are, aIter all, both
dead, and that appears to make them unlikely candidates Ior Iaculty appointments.
67
And
thus it may not really matter whether anyone won or lost the debate. Much more
important is what the debate as a whole illuminated, and what the particular example oI
the 'no vehicles in the park rule illustrated about one oI the central dilemmas oI law.
And most oI what we have learned comes not Irom Hart`s original example itselI, and not
solely Irom Fuller`s counter-example, but Irom the conjunction oI the two. Looking at
the conjunction, we might say that Hart`s basic point about the core and the penumbra
was properly inIluential, and demonstrated not only his experience-based knowledge oI
how law worked,
68
but also the sophistication, Ior the times, oI his philosophical
knowledge.

But although Fuller`s philosophical Iorays were Iar clumsier, it may be important
to remember that Fuller oIIered a highly resonant picture oI modern common law legal
systems, especially but not exclusively in the United States. In an environment in which
law proIessors who urge judges to rewrite statutes to make them less obsolete can go on
to become judges themselves,
69
in which cases like Riggs, Kirbv, and Church of the Holv

67
Which is not to say that we might not preIer to have them, even dead, over some oI our
colleagues.

68
Hart spent nine years as a barrister, specializing in equity. See Lacey, supra note 19.
And although as a barrister he presumably spent some time in court, he was likely, given
the nature oI his practice, to have spent a considerable amount oI time writing opinions
about the core meanings oI complex trusts and related documents.

69
Guido Calabresi, A Common Law Ior the Age oI Statutes, supra note 57. For similar
arguments supporting a statute-revising Iunction Ior the courts, see Donald C.
Langevoort, Statutorv Obsolescence and the Judicial Process. The Revisionist Role of the
34
Trinitv are major components oI the legal and judicial arsenal, and in which judges may
without Iear oI impeachment set aside the plain language oI even the Constitution in the
service oI something larger or deeper,
70
Fuller may have correctly captured something
important about the legal system he knew best. And even in Great Britain, a legal
environment in which judges sometimes use broad conceptions oI equity to deIeat an
otherwise unIortunate application oI a legal rule
71
Fuller`s description may capture an
element oI actual adjudication and legal practice that Hart had neglected or slighted.

Riggs, Kirbv, and Church of the Holv Trinitv are oI course not all or even most oI
American law, to say nothing oI law in jurisdictions more Iormal and less instrumentalist
than the United States.
72
Even in America, cases like United States v. Locke
73
and TJA v.

Courts in Federal Banking Regulation, 85 Mich. L. Rev. 672 (1987); Note, Intent, Clear
Statements, and the Common Law. Statutorv Interpretation in the Supreme Court, 95
Harv. L. Rev. 892 (1982).

70
See United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) (holding that the
Contract Clause is not to be read literally); Home Building & Loan Ass`n v. Blaisdell,
290 U.S. 398 (1934) (same). See also Principality oI Monaco v. Mississippi, 292 U.S.
313 (1934) (holding that the word 'another in the Eleventh Amendment also included
the same state); Hans v. Louisiana, 134 U.S. 1 (1890) (same).

71
E.g., Lloyd`s Bank v. Bundy, |1975| Q.B. 326; Re Vandervell`s Trust (No.2), |1974| 1
Ch. 269, 322; London Property Trust v. High Trees House, Ltd., |1947| K.B. 130.
See also Patrick Devlin, The Judge 90-93 (1979).

72
See P.S. Atiyah & Robert S. Summers, Form and Substance in Anglo-American Law:
A Comparative Study in Legal Reasoning, Legal Theory and legal Institutions (1987);
Interpreting Statutes: A Comparative Study (D. Neil MacCormick & Robert S. Summers,
eds., 1991).

73
471 U.S. 84 (1985) (enIorcing the literal meaning oI a 'prior to December 31
statutory Iiling deadline even in the Iace oI an argument that Congress obviously
intended to say 'on or prior to December 31).

35
Hill
74
are also part oI the Iabric oI the law, and although Riggs has become Iamous, there
are in Iact numerous decisions in which unworthy beneIiciaries who were in some way
responsible Ior the testator`s death have been permitted to inherit.
75
Moreover, the
United States is also a legal environment in which the Iormal constitutional separation oI
powers as speciIied in the document oIten is outcome-determinative,
76
in which a court
can believe that a statute produces an obsolete and morally problematic result but that the
change must be Ior the legislature,
77
and in which prominent political Iigures who might
otherwise have had Presidential aspirations
78
never consider the possibility solely because
they would run aIoul oI the Constitution`s 'natural born requirement Ior Presidents. So
although the example oI the truck/memorial that Ialls within the literal language oI a
statute tells us something important about modern common law legal systems, so too
does the automobile that is plainly a vehicle. Indeed, iI we seek to understand law and
not just judging, and that was what Hart wanted us to understand by using the example in
the Iirst place, it is important that we not Iorget about the driver oI a pickup truck, with

74
437 U.S. 153 (1978) (enIorcing the plain meaning oI the Endangered Species Act to
protect the habitat oI a 3-inch long brown Iish called the snail darter, even at what the
majority conceded was a sacriIice oI great public beneIit as well as millions oI dollars).

75
The cases are described in Schauer, supra note 61.

76
E.g., Bowsher v. Synar, 478 U.S. 714 (1986); Immigration & Naturalization Service v.
Chadha, 462 U.S. 919 (1983).

77
See In Re BlanchIlower, 834 A.2d 1010 (N.H. 2003) (reIusing to modiIy statutory
deIinition oI adultery, which was limited to opposite-sex partners).

78
Including, Ior example, JenniIer Grandholm, Christian Herter, Henry Kissinger,
Maeekine Albright, and Arnold Schwarzenegger. And maybe Bob Hope.

36
Iamily and picnic preparations in tow, who sees the 'No Vehicles Allowed sign at the
entrance to the park and simply turns around.

Once we see how oIten law is Iormal, and once we see how oIten, especially in
the United States, it is not, we can appreciate that the best understanding oI rule
interpretation in particular and an important part oI law in general may come not
exclusively Irom Hart`s example oI the automobile, nor Irom Fuller`s counter-example oI
the military truck. Rather, we learn a great deal Irom the conjunction oI both examples
and both sides, and Irom an appreciation that each oI the two examples captures an
important Ieature oI the legal systems we know best. To the extent that this is so, then
the real winner oI the debate is not Hart, who may have neglected something important,
but nor is it Fuller, who neglected something equally important. But insoIar as the two
perspectives complemented each other, and remedied the too-narrow descriptive account
oI the other, then he real winner turns out to be all oI us.