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H.L.A. Hart and Lon Fuller on a road in New Hampshire

Riding my bicycle on a country road near Bretton Woods, NH, I came upon this sign on the side of the road.

No snowmobiles

It reminded me of the famous debate between Lon Fuller and HLA Hart about the interpretation of rules, which they fought out using the example of the ordinance that reads “No vehicles permitted in the park.”  To over-simplify somewhat, Hart asserted that rules have a core literal meaning that is conveyed by the meaning of the words that could be determined without consideration of the purposes behind the rule, while Fuller argued that purpose always factors (and must factor) into the interpretation of rules.  I’ve always been partial to Fuller’s view – that putting, say, a World War II truck in the park as part of a war memorial does not violate the statute, even though it is most definitely a “vehicle” within the ordinary meaning of the term.

The sign above adds a nice little wrinkle on this problem.  Suppose you took your snowmobile (in winter) for a ride on the road, and were given a ticket.  Couldn’t you argue that the sign does not clearly indicate that it is to be given prohibitory effect?  That is, “no snowmobiles on the road” is clearly different than “no snowmobiles allowed on the road,” and could – plausibly – be read simply as an informational statement.  Like “moose crossing” or “falling rocks ahead,” it informs drivers (or bicyclists) that they will not encounter any snowmobiles on the road (because there are “no snowmobiles on the road”).  Driving your snowmobile on the road makes that statement false – but it doesn’t violate any prohibition, because the sign does not make such a prohibition clear.

OK, it’s a little far-fetched – though I think a good lawyer could get that ticket cancelled.  But even assuming that you read this as a prohibition against snowmobiles on the road, what about a snowmobile on the back of a flatbed truck – would anyone (other than HLA Hart) really suggest that this would constitute a violation of the prohibition?  Surely Fuller’s right on this – whatever purpose the legislature might have had for prohibiting snowmobiles on the road isn’t served by prohibiting their transport over the road via other vehicles (though, again, there has been a literal violation).

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.



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