Fuller, The Morality of Law

When I first started reading philosophy of law, I was drawn to the realist or positivist approach. Realists (not like Platonic realists, but rather get-real-ists) take their theoretical cue from actual practice. Oliver Wendell Holmes expressed it in his own definition of law, that law is what enables you to predict how a judge is actually going to rule. The positivists step to a more abstract level and emphasize that there is no necessary connection at all between law and justice or morality. A draconian regime may have a horribly immoral set of laws, but for all that it is still a system of laws. The laws of Nazi Germany, though loathsome, were still laws. This approach seemed to me sound and plausible.

But reading Fuller’s book has made me reconsider. Fuller lays down eight conditions a system of laws has to meet in order to produce a recognizably law-governed society. They include that laws have to be made public, not retroactive, stable, general, enforced, and so on. All this seems about right; Fuller offers a tale of King Rex who tries to run his realm in all sorts of backwards ways that flout these eight conditions, and it seems right to judge that his imagined realm is “law” governed in name only. But then as Fuller explores these conditions, and examines actual and imagined cases, he provides good reasoning for thinking that law does require at least a minimal set of moral conditions.

For example, consider the Nazi case. In many instances, the judges upheld the Nazi regime by perverting the way systems of law are supposed to regulate human conduct. People would be murdered by soldiers, and then after the fact condemned as traitors. Many trials were merely a sham for inevitable convictions, and certainly not all citizens were equal before the law. Once we know more details of the Nazi judicial system, we’d be likely to conclude that the society was “law-governed” in only the very thinnest sense: a better judgment would be that the society put up only a pretense of being law-governed. Fuller’s argument is that in order for a society to really be law-governed, some basic conditions need to be met, and those conditions have a kind implicit morality in them, and in how various legal wrinkles get worked out in actual practice.

In response to a criticism by H. L. A. Hart, who asserts that there is no necessary connection between morality and the rule of law, Fuller asks,

Does Hart mean merely that it is possible, by stretching the imagination, to conceive the case of an evil monarch who pursues the most iniquitous ends but at all times preserves a genuine respect for the principles of legality? … Does Hart mean to assert that history does in fact afford significant examples of regimes that have combined a faithful adherence to the internal morality of law with a brutal indifference to justice and human welfare? If so, one would have been grateful for examples about which some meaningful discussion might turn.

When he puts it that way, it does make the positivists’ insistence look a bit awkward.

Closer to home, Fuller explores cases in the U.S. that violate his conditions. Very often, people end up in situations where the law does not say very clearly what they are (or were) supposed to do, or they end up in the crosshairs of two laws that contradict one another. What happens then? Well, lawyers and judges try to think through the laws and interpret how any rule of law ought to decide in those cases, taking into account similar cases, other possible future cases, what the laws originally were aimed at achieving, and the practical circumstances of the litigants. In any particular case, it is difficult to imagine working through these arguments without at least some minimal moral reflection about fairness, impartiality, impact, and the clarity of any ruling. Fuller calls this a “procedural” rather than “substantive” natural law, but it is moral enough to give the lie to any strict positivism.

That’s not to say, of course, that there could not be a law-governed society that practices legalized slavery or oppresses women or administers the death penalty. Fuller’s natural law does not reach that far. But it reaches far enough to conclude that being law-governed means engaging in a process in which a system of laws might well lead to verdicts that go against what judges and their superior would otherwise prefer, given their own prejudices and agendas. And it also argues that the ongoing endeavor of law requires that we listen to one another and take one another’s causes into practical consideration:

Each [side in a dispute] is orienting his words, signs, and actions by what he thinks the other seeks and in part also by what the other thinks he seeks. Here there emerges from the parties’ interactions no hard factual datum that can be set off against the purposes that brought it into existence. The quality and terms of the parties’ emergent relationship – its “laws” if you will – constitute an important social reality, but it is a reality brought into being and kept alive by purposive effort and by the way each of the parties interprets the purposes of the other.


About Huenemann

Curious about the ways humans use their minds and hearts to distract themselves from the meaninglessness of life.
This entry was posted in Books, Meanings of life / death / social & moral stuff. Bookmark the permalink.

5 Responses to Fuller, The Morality of Law

  1. Chris Rawls says:

    Excellent post. Loved reading it, thank you. In the spirit of how you end this post, I ask if we can consider the seemingly horrific and often laughable suggestion and then some that there are other laws then the laws of nature as they are known today? Surely that is exactly what Einstein and others way before him asked when they discovered that there were other ways to conceive of laws of nature that counter Newton. That is still the case today, but I fear that the new laws we are about to discover are barely imaginable, although they are, in the end, somewhat rational none-the-less.


  2. Hart is talking about the content of law, whereas Fuller is talking about the structural conditions of law. I don’t think these debates are connected in any interesting way.

    Suppose a judge declines to enforce a morally benighted law. His decision would be “lawless,” yet moral. That’s Hart’s point (or part of it, anyway).

    Ah, yes, replies Fuller, but a system of unjust laws cannot long endure!

    Well, okay. But it’s still a system of unjust law, however long it lasts.


  3. Huenemann says:

    Hart wrote a long review of Fuller’s book, and Fuller replies briefly in the later edition of the book, and they agree at minimum that they have very different visions of what they take law to be. You express it well in your quick summary: Fuller thinks of law as ongoing activity in institutions, while Hart’s view is a stockpile of propositions coming from the right sort of authority. Given the difference in foci, it’s easy to see why Fuller thinks there is at least a minimal moral component, while Hart thinks the two can be sharply divided theoretically. Your description of “Hart’s point” with the lawless judge case is a point Fuller would accept too, though Dworkin wouldn’t.


    • “Your description of ‘Hart’s point’ with the lawless judge case is a point Fuller would accept too, though Dworkin wouldn’t.”

      You think so? I think Hart says our hypothetical unjust law has legal validity (assuming it was otherwise conventionally enforced) but no moral authority. Judges can discern the (evil?) intent behind an unjust law, after all, so the there is no problem of their indeterminate application.

      If Fuller says the same thing, it’s hard to see what’s distinctive about his claim that there is a necessary connection between morality and law. Both he and Hart agree that there are structural preconditions for “law.” But Fuller wants to claim (or I remember thinking he wants to claim) that the substantive (im)moral character of a given law goes to its validity qua law.


  4. Contents of law as well as structure of law is important from the point of view of administration of justice. one can not be sacrificed at the cost of other., contents of law will decide whether law is just or unjust and structure of law will decide effectiveness of legal system. When contents of law are pure that is moral obviously legal system can do better justice that is justice based upon values which Fuller is trying to acjeve.


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