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Lon Fuller, The Morality of Law, first published 1964

 

Transcript

The dominance (for around a century) of legal positivism provides the backdrop to Lon L. Fuller's book The Morality of Law. Fuller's text is a challenge to positivism and its refusal to accept what might seem to us an innocuous claim: that law must be structured in a certain way. For Fuller, law must provide rules that humans are capable of fulfilling. And the force of this 'must' is a moral one. Certainly, this is not like the kinds of obligations that individuals must fulfil if we are to think of them as 'virtuous people'. Law's morality is a specific kind of morality, one linked to duties rather than human potential or excellence.

Accordingly, while Fuller's work is often categorised as related to the 'natural law school', Fuller is difficult to categorise. He is concerned with the day to day functioning of legal systems. And, when he talks about morality it is a distinctive type of morality concerning the structuring of rules and how people can be governed through rules; when he talks about justice and fairness these are treated as outside the normal work of lawyers and courts. As such, his book looks more like the work of some positivists and American realists than it does traditional natural law theorising. But, for Fuller, discussion of morality is inescapable if we want to understand the concept, including the objectives, of law.

The eight principles or 'desiderata' ('desirable things') that are said to constitute the morality of law are identified by Fuller as follows: use of rules, publicity of rules, avoidance of retroactivity, clarity, avoidance of the contradictory, avoidance of impossibility, avoidance of frequent change, and consistency between rules and their administration. There is a mixture of positive and negative obligations here, obligations that fall principally on legislators and legal officials. But there are no radical surprises amongst these obligations. They are, perhaps, what we implicitly expect in any stable legal system committed to governing people through public rules.

The desiderata also provide something of a natural law 'veneer' to some familiar positivist assumptions. The assumption that law must be a system, and not merely the will of the sovereign, is as important to Hart as it is to Fuller. However Fuller stresses that the rule of law - i.e. the existence of a legal system which is predictable, non-arbitrary and stable - is in an important sense a moral commitment. A morality different to that of the personal morality of excellence; one distinctively tied to legality and public obligations. This difference is important, not least because Fuller allows degrees of fulfilment of the desiderata. Partial failure on one ground is not enough to challenge a system's claim to be a legal system. This is very different to saying that we have a moral obligation that we, personally, have failed to fulfil.

Fuller does not present a concept or definition of law. However, he does present a strong argument for law's moral significance. He also, in the process draws our attention to some of the principles underlying the (often opaque) language of the rule of law. First, that rules exist to guide action: it is not enough for there to be rules, those rules must be comprehensible, and ideally comprehensible to as many people as possible so that we can all guide our action in accordance with law. Second, in the words of Immanuel Kant, 'ought implies can': to have an obligation we must be capable of fulfilling that obligation. This principle nicely encapsulates Fuller's view of law's morality: for there to be law it is not enough that there are commands, there must be some kind of marriage between the commands and what we are able, humanly, to do. Finally, the ideal of the rule of law is not fulfilled purely by virtue of there being rules created and publicised by a sovereign. The rule of law has to be premised on the needs and interests of human beings. While it might give rise to 'impersonal' rules adjudicated by 'impersonal' institutions, such rules and institutions reflect a fundamental moral fact: humans cannot be simply governed; they must be governed through public, and reasonable, rules.






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