Views of Lon L.

Fuller

Fuller, who was one of Hart's fiercest critics, is a natural contrast to Hart (no pun intended).
Against Hart, Fuller argues for a necessary connection between law and morality. Using our
distinctions, it is plausible to argue that Fuller sought to establish at least these two more
perspicuous claims:

1. There is a conceptually necessary connection between legal systems and morality.

2. There is a conceptually necessary connection between legal propositions and moral

maxims.

Fuller clearly attacks Hart's denial of any conceptual necessity between legal systems and
moral systems. This is the first claim. The positivist concept is a worse concept of law. The
most pressing problem with it is that it fails to adequately incorporate the concept of fidelity
to law. It is intellectually worse since it not only refuses to deal with the problems concerning
the conditions which make possible the realization of fidelity to law, but bans them on
principle from the province of legal philosophy. It is a morally worse concept on Fuller's
view for moral confusion has reached its height when a court refuses to apply something it
admits to be law. Fuller also wants to argue that legal propositions (judicial holdings) are tied
to moral maxims. This is the second claim. Judges must interpret the law, not merely consult
it. His point is that this treatment consists in consulting and applying moral maxims. The
judge passing decision on the two men before him for violating the 'sleep statute' does not
decide by considering standard cases of sleep, nor does he decide in the case of the
'improvement statute' by considering standard cases of improvement. Rather, the judge
ponders what the rule is for, what evil it seeks to avoid, and what good it is intended to
promote.1

Fuller criticizes the legal positivists for their sloppiness in de fining morality, and goes on to
suggest that Hart's line of argument might lead to a basis in conventional morality, and that
Austin's fundamental rules are grounded in positive morality. What is Fuller's position? His
argument that a constitution cannot make itself law, but requires general public acceptance
and belief suggests that the grounding of the fundamental rules lay in conventional morality.
On the other hand, his argument that only certain rules (the eight moral maxims) can serve as
a fundamental rule making possible a legal system suggests that they are a part of critical
morality.2

Fuller, on the other hand, seems to be arguing that the concept of law advocated by the legal
positivist causes us to be immoral, to fail to fulfil our moral obligations. That is, there is a

1
Author(s): Timothy C. Shiell, Making Sense out of a Necessary Connection between Law and Morality
Published by: on behalf of University of Illinois Press North American Philosophical Publications pg 8-9
Stable URL: http://www.jstor.org/stable/40435652
2
Ibid pg 9 Para 4
nomologically necessary connection between the positivist concept of law and (critical?)
immorality.3

Short excerpts from letters written by Fuller, scattered throughout, reveal a complicated
relationship, both personal and professional, with his jurisprudential adversary. Fuller, Lacey
reveals, was frustrated, as he was constantly being misunderstood. Lacey traces the sources of
this misunderstanding back to a number of variables, including Fullers intellectual
background which was different from Harts. Viewed through Harts positivists lens,
Fullers work is riddled with statements and ideas that were ripe for misunderstanding, many
of which can be traced back to a fundamental difference of orientation. Trained in economics
and sociology and not in philosophy like his adversary, Fuller held that the whole of legal
philosophy should be animated by the desire to seek out those principles by which mens
relations in society should be rightly and justly ordered. The positivist enterprise, which
sought to bring about a clean separation between legal facts and moral values, approached the
world in a markedly different way. From the positivists perspective, Fuller could quickly be
cast as a sociologist, interested only in contingencies, or as a traditional natural lawyer who
saw law through a morally robust lens. Fuller wanted to resist both characterizations, so it
was to his bemusement and dismay that he was quickly dismissed by Hartasa witches
cauldron-style metaphysical natural lawyer.4

He casts Hartin the unsympathetic role of the governess, who is on a quest for the denite,
literal, or proper meaning of words or events. Hart behaves like the governess when he
insists on a core of certainty if we are to have law at all.

While Hart dismisses Fuller for being obscure, it is Fuller who successfully demysties
adjudicatory practice by seeking to bring legality back to every part of law, insisting that
interpretation of core and penumbra alike are guided by knowable practices of legal
reasoning. However, Manderson notes that even Fuller cannot resist the temptation of
choosing mastery over uncertainty, as Fuller relies heavily on the very positivist
assumptions that he had actively sought to dethronea point that is borne out when the
debate shifts to a discussion of Nazi law. Hart insists that the Nazis had law, but it was
morally bad law. Fuller accuses Hart of offering a hasty and overly simplistic diagnosis of a
complex situation. The Nazis enacted retroactive statutes and secret laws, removing
altogether the possibility of self-directed action under the law. In short, the Nazis did not
simply enact morally bad laws, they abused the legal form (the inner morality of law) to
serve their own ends. Fuller aims to shore up this point by reminding us of the precise
wording of one of the statutes that was relevant to the wartime informer cases: The
following persons are guilty of destroying the national power of resistance and shall be
punished by death: Whoever publicly solicits or incites a refusal to fulll the obligations of
service in the armed forces of Germany, or in armed forces allied with Germany, or who

3
Ibid pg 10 Para 2
4
Author(s): Margaret Martin, Cane, Peter, ed. The Hart-Fuller Debate in the Twenty-First Century. Oxford, OR:
Hart, 2010, Published by: University of Chicago Press , pg 2-3, Stable URL:
http://www.jstor.org/stable/10.1086/666889
otherwise publicly seeks to injure or destroy the will of the German people or an allied people
to assert themselves stalwartly against their enemies.5

Through a series of examples, Fuller illustrates how the meaning of legal norms is at least
partially the product of an understanding of the purpose of the norm, which is itself informed
by deeply held, often implicit, value assumptions. For instance, Fuller asks readers to
consider the following rule: It shall be a misdemeanour, punishable by a ne of ve dollars,
to sleep in any railway station. The businessman who falls asleep while waiting for a 3:00
a.m. train is not the target of the rule, but the man who is settling in for the night, with blanket
and a pillow, is a more likely candidate even though he is not yet asleep (Fuller, Reply to
Professor Hart, 664). It is the purpose of the rule, and not simply the word sleep, that
makes it intelligible to those who are expected to be guided by it. While Fuller implies that it
is legitimate to interpret the word sleep to mean awake in this case, he insists that it is not
legitimate to interpret the word public to include private. (This could be related to
AFSPA as how this act affects a particular class of society i.e. poor people, more,
comparative to the rich and those who are government official and bureaucrats.)

At this juncture we are invited to conclude, alongside Hart, that for Fuller, the central
problem with these war-informer cases was the immoral outcome. So in an important sense,
Hart was right. At the same moment that Fuller becomes positivistic, he also moves
dangerously close to the witches cauldron: the only difference that Hart could detect
between his view and Fullers at this point was that Fuller connected legal validity and moral
merit. We have come across yet another turn of the screw. Manderson identies the lesson
that Fuller should have drawn had he not relied so heavily on positivism: Fuller does not
acknowledge Nazism did not merely corrupt a legal system; rather, it realised a vision of it
informed by the anti-positivistideologiesofGermanRomanticismuptoandincludingHeidegger
and Schmitt.6

Other unstated assumptions are shared by both Hart and Fuller. For instance, both thinkers
assume that law is best conceived of as universal phenomena, as a single idea. And they
both assume that their laws are not iniquitous; that they are moral in perhaps the deepest
sense. Hartspositivisttorchbearersmaywishtointerruptatthisjuncturetoremind Nafne that
Hart endorsed the separability thesis (the claim that there is no necessary connection between
law and morality), but beyond the possibility of evaluating the content of the law, once
properly identied, Hart did not have any evaluative aims. Consequently, insofar as Nafne is
suggesting a value commitment that goes beyond such piecemeal evaluations, she is
misreading Hart as Fuller once did. This retort, while common, may not hit the mark.
Postema also reminds readers that the Hartian method was not originally a self-standing
project. Hart offered two arguments to support his conclusions: clarity and the separations
thesis. However, if the distinction between the core and the penumbra does not hold, then
clarity is not served; if the distinction does not hold, then the positivists version of the
separation thesis does not support the identication of law with settled meaning, it just is the

5
Ibid pg 3-4
6
Ibid pg 4
proposal to do so. This is likely what Fuller is suggesting when he states that it is not clear .
. . whether in Professor Harts thinking the distinction between law and morality simply is
or is something that ought to be (Reply to Professor Hart, 631). It is an implicit value
judgment that Fuller spies at the base of Harts entire project. As a conceptual point, the idea
of the core and the penumbra is implausible (according to both Fuller and Postema), but Hart
had to have some reason for restricting law to the settled meaning of rules.The only
reason that Fuller could think of was found in classical positivism: it is best if we hold
control of the exercise of power by holding those who wield it to rules that are public and
undisputed. From this perspective, we can see that Fuller could plausibly argue that Hart
was committed to this particular conception of delity of law.7

Fuller has written much about law and morality-for instance, about the moral foundation
which a legal order must have. My present concern is with what he says about law and
morality under the heading which he terms variously "the morality that makes law possible,"
"the internal (or, inner) morality of law," "the law's special morality," "the principles) of
legality," and "legal excellence." I shall call it "the internal morality of law" (IML for short).
He lists eight "desiderata" or demands of IML: there must be rules, they must be
promulgated, they must be retroactive as seldom as possible, they must be clear, they must
not be contradictory, they must not require the impossible, they should not be changed too
frequently, and there must be congruence between declared rule and official action. I shall not
ask whether this list is correct, but rather discuss the nature and validity of the claims which
Fuller bases on it about law and morality. In his characterization of IML, Fuller gives a
prominent position to a distinction between the morality of duty and the morality of
aspiration. He observes that legal philosophers usually fail to clarify the meaning of morality
itself, and that he wants to redress this, chiefly by emphasizing this distinction.7 The morality
of duty "lays down the basic rules without which an ordered society is impossible," while the
morality of aspiration is "the morality of the Good Life, of excellence, of the fullest
realization of human powers".8

The two moralities differ in various, interconnected, ways." The morality of duty imposes
duties concerning what is necessary for social life (e.g., do not steal), which are backed by
legal and social sanctions, and which can and must be performed completely and vary widely.
The morality of aspiration presents challenging ideals (e.g., be generous), which are rein
forced by the rewards of honor and self-satisfaction, and which are not expected to be carried
out to the full or by everyone. The ideals of the morality of aspiration are precisely that,
aspirations; they are only achieved to a certain degree. Moreover, these ideals may conflict,
so one can only be fulfilled at the expense of another or others, and then we have to resort to
something akin to the kind of calculation, governed by the marginal utility principle, by
which we make the best use of limited economic resources. But failure to achieve aspirations
will not lead to society's collapse; as would failure to perform duties. The significance of the
distinction between the moralities of duty and aspiration is that IML is "largely a morality of

7
Ibid pg 5
8
Author(s): Peter P. Nicholson, The Internal Morality of Law: Fuller and His Critics, Published by: University of
Chicago Press, pg 3, Stable URL: http://www.jstor.org/stable/2380144
aspiration." For with the exception of promulgation (which "lends itself with unusual
readiness to formalization"), IML's demands are positive and creative, and above a certain
minimum cannot be easily defined as duties, that is, specific forbearances.9

The requirements of IML may clash, for instance, with moral requirements external to the
law, as when IML prescribes that laws be stable, while "changes in circumstances, or changes
in men's consciences, may demand changes in the substantive aims of law, and sometimes
disturbingly frequent changes." Again, "antinomies may arise within the internal morality of
law itself," for example, retrospective legislation may be the only way to rectify some other
offence against the principles of legality. Fuller considers limitations due to conflicting
aspirations less obvious, and pays them more attention. He argues that since we are dealing
here with aspirations, not duties, they may be balanced against each other.10

If this is the nature of IML, what does it tell us about law and morality? Fuller claims that the
satisfaction of the minimum requirements of the eight desiderata of IML, that is, of those
parts which can be stated as duties, is a necessary condition of the existence of a legal system.
"A total failure in any one of these eight directions does not result in a bad system of law; it
results in something that is not properly called a legal system at all."'8 Fail to achieve the
aspirations of IML and the result is bad law (bad, I think, in both a technical and a moral
sense-Fuller is intermingling the two), although a legal system for all that; but fail to achieve
its duties, which prescribe "the indispensable conditions of law," and the result is not a legal
system. This conclusion necessarily follows from Fuller's underlying characterization of law
in terms of rules guiding human conduct.' For this entails, among other things, that there be
knowable, intelligible, and prospective rules. Hence, for example, one can no more have a
legal system consisting entirely of retroactive laws (i.e., fail totally to observe the duty to
minimize retroactive laws) than one can have air pressure in a perfect vacuum.20 Anyone
who totally fails to meet one, or more, of the demands of IML may perform governmental or
official acts, but he cannot make law.11

Positivists assert that whatever has the valid form of law is law, regardless of the morality or
immorality of its content; natural law writers deny that form alone is enough, there must also
be morally good or at least not morally bad content. Now, Fuller does not oppose positivism
along that line, since in his terms questions about the content of laws have to do with the
external morality of law (though of course it is open to him to think this an important matter
too). His case concerns a morality internal to law itself, and is, translated (not without
distortion) into the familiar terms just used, that form and content are not separable in the
way that both sides to the dispute assume, but are necessarily connected: the form of law is
itself morally good.12

9
Ibid pg 4
10
Ibid pg 5 Para 1
11
Ibid pg 5 Para 2
12
Ibid pg 6