[2.2.2.] Lon L. Fuller.

 

·         1902-1978, American

·         taught at Harvard for decades

·         teacher of Ronald Dworkin, another important legal scholar whom we’ll be studying soon.

 

 

[2.2.2.1] Traditional vs. Modern Natural Law Theory.

 

Aquinas’ traditional approach to natural light theory (NLT) was substantive, in that it addressed what the substance of the law should be, i.e., whether specific laws are moral or immoral. He attempted to identify universal moral values against which the content of positive law can be evaluated.

 

Fuller’s modern approach to NLT is different; it is procedural, in that it addresses the procedures embodied in a legal system. Fuller proposes that a system of positive law must pass a moral test if it is to be a system of law in the fullest sense, i.e., if it is to be genuine law.

 

 

[2.2.2.2.] Rex and the Eight Principles.

 

In The Morality of Law (1964, excerpted in your textbook), Fuller attempts to identify what he calls the internal morality of a system of legal rules. This morality is constituted by universal procedural norms.

 

He identifies eight “principles of legality.” The degree to which a system meets these requirements is the degree to which it counts as a system of law.

 

He illustrates these principles in a fictional story about a king, Rex, who upon taking the throne decides to do away with the legal system of the previous monarch and build a new system from scratch. The mistakes that he makes in doing so illustrates Fullers “procedural norms.” For the most part, the problems aren’t with the substance or content of any specific laws that he passes, but rather with the general facts about the laws and how they are administered.

 

Rex’s mistakes[1]	Fuller’s Principles of Legality [2]
1. He did not set forth a system of rules at all, but simply made ad hoc decisions on a case by case basis. [ad hoc (Lat. “for this”): for a specific occasion or case, without regard for more general applications]	“laws should be general,” i.e., such as to apply to many individual cases; cases cannot be decided ad hoc, one by one.
2. He came up with a system of rules, but he didn’t make them public.	“they should be promulgated, that citizens might know the standards to which they are being held”
3. He would make some actions illegal after the fact: actions that were legal when they were performed later became illegal and the people who performed them earlier were punished.	there should be no “retroactive rule-making and application,” or at least as little as possible.
4. The laws were incomprehensible, so that no one could understand them.	“laws should be understandable”
5. The laws contradicted themselves, so that it was impossible for anyone to obey all of them.	“they should not be contradictory”
6. He enacted laws that were impossible to follow, e.g., laws making it illegal to sneeze and to fall down, and that demanded that subjects respond to a summons from the king within ten seconds.	“laws should not require conduct beyond the abilities of those affected”
7. He changed the laws so rapidly that it was impossible for people to adjust their behavior to them.	“they should remain relatively constant through time”
8. The laws were not administered in a way consistent with the way they were announced, e.g., the declared punishments for certain crimes were different than those actually given out.	“there should be a congruence between the laws as announced and their actual administration”

 

Says Fuller, any system that completely fails to live up to even one of these principles is not a system of genuine law:

 

                A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian[3] sense in which a void contract can still be said to be one kind of contract. (p.66)

 

What’s more, the duty to obey the positive law disappears if these procedural norms are not met:

 

... there is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect, “These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.” When this bond of reciprocity is finally and completely ruptured by government, nothing is left on which to ground the citizen’s duty to observe the rules. (p.66)

 

However, these internal norms do not settle all moral questions relevant to constructing a legal system. The procedural natural laws described by Fuller are not the whole story about morality and law:

 

                Though these natural laws touch one of the most vital of human activities they obviously do not exhaust the whole of man’s moral life. They have nothing to say on such topics as polygamy, the study of Marx, the worship of God, the progressive income tax, or the subjugation of women. If the question be raised whether any of these subjects, or others like them, should be taken as objects of legislation, that question relates to what I have called the external morality of law. (p.67)

 

 

[2.2.2.3.] Two Objections to Fuller.

 

 

Objection #1: It is possible for a regime to meet all eight of Fuller’s legal requirements, yet still be wicked, by meticulously following a system of laws the contents of which are morally terrible. For example, a system of law in which slavery and torturing innocent children is legal could still follow the eight principles. So, those principles cannot count as moral standards.

 

Response: The objection misses Fuller’s point. He does not claim that any system that includes these procedures is thereby perfectly moral. Rather, his view is that the procedures embodied in a legal system are morally important and determine whether a set of rules really count as a legal system. In other words, abiding by the eight principles is a necessary condition of a system’s morality, but it is not a sufficient condition.

 

 

Objection #2: Fuller’s principles of legality are not really moral considerations. While they might be necessary in order for a system of law to do what it is supposed to do (to order society by governing the behavior of people within it), that doesn’t mean that they count as moral standards. A legal positivist could agree with Fuller that any system of social control must meet those standards in order to be counted as a legal system. But the positivist could maintain that those principles are not moral principles and thus do not count as a moral standard. He or she could then insist that, after all, there is no necessary connection between morality and law.

 

Response: Fuller gives an example to argue that the eight principles are moral principles. In the Soviet Union, there was an attempt to increase the sentence for robbery, and to apply the increase retroactively. Even within the Soviet Union, this was perceived by some parties to be illegitimate, because it was thought to be unjust. Most Americans would judge such procedural change the same way. So norms of justice (moral norms) are built into our legal procedures. These are procedural principles, but (according to Fuller) they are not merely procedural—they do have a moral aspect.

 

 

 

Stopping point for Friday February 16. For next time, read pp.68-77, on Austin’s and Hart’s legal positivism.