LON LUVOIS FULLER: RULE OF LAW

3.6 JURISPRUDENCE

Submitted by:
Neils Mosahary
SM0117033
2nd Year, 3rd Semester

Faculty in Charge
Mr Saheb Choudary

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

GUWAHATI

5st NOVEMBER, 2018

 TABLE OF CONTENT

1. INTRODUCTION…………………………………………………………………………3

2. HISTORICAL ROOTS OF FULLER THEORY………………………………………..4

3. THE REDBRUCH DOCTRINE………………………………………………………….4

4. HART’S CRITISM………………………………………………………………………..5

5. FULLER’S RESPONSE: THE MORALITY THAT MAKES LAW POSSIBLE…….5

6. LAW IS PURPOSIVE, RECIPROCAL AND ON-GOING ENTERPRISE…………..6

7. LON L. FULLER THEORY OF LAW…………………………………………………..7

8. CRITICISM……………………………………………………………………………….8

9. CONCLUSION……………………………………………………………………………9

10. BIBLIOGRAPHY…………………………………………………………………………9

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1. INTRODUCTION

The contemporary era of legal philosophy is often said to begin with the ‘Hart-Fuller debate’ ,
when Harvard law review published two articles simultaneously in 1958 , in which Hart and Fuller
both set out in elementary form the arguments that would later develop into their most celebrated
jurisprudential works. Hart set the ground for this debate by propounding that morality cannot be
used as means to justify the validity of a law. He analyzed the criticisms against this proposition
and then criticized them by pointing out that most of the criticisms that are pointed against the
proposition that morality cannot be confused with legality was because of the command theory of
the utilitarian’s . So he criticized the command theory of law and while doing so propounded his
own definition of law by laying emphasis on primary and secondary rules of recognition. In
Fuller’s analysis we find the concept of ‘inner morality of law’ , which he would use as the basis
of his legal theory. These important beginnings , as well as the seemingly sharp joinder of issue
and the vigour of the arguments , have secured this debate’s jurisprudential influence.

The debate revolves around the question whether morality of a law can be used as a tool to measure
its validity or not. While Hart concedes that although morality can be a part of law , he contends
that it is a contingent and not a necessary condition , while Fuller lays stress on the fact that
morality and legality are inseparable. Fuller uses his concept of inner morality of law by which he
contends that it is not the external substantive content of a law that determines its morality but its
internal procedural content. The eight components must be present in every legal system to make
it valid. The debate then revolves around the Radbruch Doctrine, where Hart alleges the
Nuremberg decisions of blurring the distinction between what the law is and what the law ought
to be and Fuller justifies them by claiming that the laws enacted during the Nazi regime were no
law at all . The debate then shifts to a discussion regarding the open texture of law and the
principles of adjudication where Hart says that judges interpret cases by using settled core
meanings of laws as a precedent in the penumbral cases , while Fuller claims that judges use their
moral and subjective bias to interpret even the core cases, accusing Hart of cataloguing the process
of adjudication. Through this debate Lon Fuller rejuvenated the natural law discourse to some
extent which further strengthened the rhetoric of universal justice . In the following chapters, all
these concepts will be discussed along with details of the joinders and rejoinders put forward by
both the sides.

2. HISTORICAL ROOTS OF FULLER THEORY

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After the end of the World War II the allied powers set up military tribunals in Nuremburg,
Germany and Tokyo, Japan to decide the fates of the people who committed the monstrous
inhumane crimes and war crimes. The main defence of the accused persons were they were acting
to their orders and according to the laws no matter how unjust they were. They argued that any
retrospective punishment would bring up a question of the basic rule that people should not be
punished for anything that does not violate the law. It ended when conviction was awarded to the
Nazi officials by the Nuremburg Tribunal. Lon L. Fuller raised a question whether in condition as
such can there be a legal system capable of producing laws in a meaningful sense.

3. THE REDBRUCH DOCTRINE

Gustav Radbruch (1878–1949) works were influencing the works of Lon Fuller. His idea of law
had three main aspects to it and these aspects carried equal weightage. The aspects were 1) Law
serves expediency – the various purposes of human co-existence, 2) It serves justice, 3) It promotes
legal certainty. The argues that conflicts that arose out of these three aspects has to be resolved by
individual conscience. But again as people’s conscience vary some officials may even in their
good conscience continue to enforce an unjust law. He believed that it was just to give retrospective
punishment to them accused of war crime in Nazi Germany. He gave a moral test which does not
invalidate all the unjust laws but only those whose injustice was beyond any doubt and it was
extensively used in the trials after the WWII in the Nuremburg trials. Radbruch used as his context
one of the so-called ‘grudge informers’ cases. Grudge informers were persons who betrayed critics
of the Nazi regime to the authorities, with knowledge that the betrayed persons faced certain
execution. The common defence of grudge informers was that they did not violate any law by
informing on critics. The defence of the officials who ordered the executions was that they were
simply obeying the law in putting to death the betrayed critics. Radbruch argued that post-war
German courts were right to convict the informers in disregard of the Nazi law.1

4. HART’S CRITISM

Hart stated that Radbruch’s doctrine did not understand the difference between the legal duty and
moral duty. He clarified that in the case of inhumane laws one only has a very high moral duty not
to obey it but is under a legal duty to obey it. He defended the Grudge informers as they only
violated the moral duty and not the law hence they should not have been punished. He argued that

1
Suri Ratnapala, Jurisprudence, Cambridge University Press
4
punishing someone for complying with the law in itself violate the idea of fidelity to the law. Hart’s
criticism had its own flaws. Firstly Radbrauch’s doctrine only said that not all unjust laws but only
the most inhumane unjust laws should be invalidated. Secondly only if the regime enforcing the
unjust laws was ousted in this case the Nazi regime the retrospective punishment could be given.2
Here it can be also added that the English does do not even recognize laws foreign laws if they are
too heinous to begin with. Thirdly the utilitarian reasoning adopted by Hart itself is not much
different from the natural law reasoning he rejected. Fourthly in his book The Concept of Law he
criticised the Command Theory as it had given ultimate powers to the sovereign.

5. FULLER’S RESPONSE: THE MORALITY THAT MAKES LAW POSSIBLE

Fuller criticized Hart’s idea to issue retrospective legislations to invalidate the unjust Nazi Laws
instead of judicial annulments. Lon Fuller argued that it does not matter who does the dirty work.
Fuller defended the post-war decisions, arguing that the German legal system under Nazi rule had
degenerated to the point that it ceased to make law ‘except in the Pickwickian sense in which avoid
contract can said to be one kind of contract. ‘To me the is nothing shocking in saying that a
dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of
order, from the inner morality of law itself, that it ceases to be a legal system’The law earns fidelity
by the general moral quality of its rules. Fuller called this the external morality of the law. The
external morality of the law refers to the substantive content of legal rules. If this content is
pervasively unjust the legal system will fail to command the respect of the community and must
maintain itself by force. This is common sense.3 Hart agreed when he argued, in The Concept of
Law, that a legal system must have a minimum content of natural law to be effective. Fuller argued
that law also has an internal morality that arises from its very nature as a purposive human activity.
The internal morality is not principally about the content of the law, but concerns the qualities that
enactments must possess to become law at all.

6. LAW IS PURPOSIVE, RECIPROCAL AND ON-GOING ENTERPRISE

In contract to legal positivism Fuller gave three propositions of law which are that law is 1)
purposive, 2) reciprocal and 3) on-going enterprise. He said that a law needs to have a purpose to
make people understand it like it cannot be said that law is made by statutes and legislatures by
the parliament and is applied in courts, but the purpose does not mean that law is there to ban

2
Suri Ratnapala, Jurisprudence, Cambridge University Press
3
Ibid
5
substances, provide security but actually the actual purpose of having law at all. Now the second
aspect is that the law is not to be made according to the will of the ruler but actually to promote
coordination and communication of individuals. He believes that the positivists views law as an
one way projection of authority from the government to the people but it should be a coordination
between the government and the citizens.4 Thirdly law is an on-going enterprise which means that
law strives to be ideal which is impossible to achieve. To understand the third aspect we can look
at an example of say a motor car it can be identified by its structure capacity, purpose and
mechanical devices. If we consider a brand new Rolls Royce and a wretched car which is in no
condition to run and in between the near ideal Rolls Royce and the useless wretched car there are
many intermediate cars in various conditions. The point where a car loses its capacity to fulfil its
purpose varies from person to person. The same is with legal systems there comes a point where
it is no longer rational to call a law a law as it fails to achieve its purpose which is to facilitate life,
therefore it is essential to maintain the car as well as the legal system so that it does not lose its
purpose.

7. LON L. FULLER THEORY OF LAW

Lon L. Fuller theory of law gives us a better understanding about what how this internal perspective
of law is an indispensable element in determining the maturity of a legal system. Fuller explains
this further by expounding eight desiderata’s5, the absence of which leads to the disaster for the
Rule of Law, thus rendering the legal system redundant.
These eight desiderata’s are:-

1) a failure to have rules at all;

2) a failure to publicize the rules;
3) the abuse of retroactive legislation;
4) a failure to make rules understandable;
5) the enactment of contradictory rules;
6) rules that require conduct beyond the powers of the affected party;

4
Suri Ratnapala, Jurisprudence, Cambridge University Press
5
Desidaratum means something that is needed or wanted.

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 7) introducing such frequent changes in the rules that the subject cannot orient his action by
them;
8) a failure of congruence between the rules as announced and their actual administration.6
Fuller call his theory of inner morality of law a ‘procedural version’ of natural law and he
distinguished it with substantive version. Fuller’s contention was that the inner morality of law ,
like retroactivity, is a set of procedure that needs to followed for a set of rules to be a system of
rules at all. Moreover, Fuller separated his internal morality of law from external morality of law
, by claiming that the external morality , i.e , the contents of a law should have certain minimum
just elements that would invoke obligation in the hearts of the people. In this regard he agreed with
H.L.A. Hart’s theory of minimum content of natural law.7 The point where Fuller makes a sharp
departure from legal positivism is by defining law from a purposive point of view. Fuller is of the
view that law cannot be understood without understanding the purpose it serves23. He gives the
example of a child to whom the meaning of computer cannot be explained without explaining the
purpose it serves. This purposive view of law , leads him to contend that reciprocity is another
important aspect of law. In the sense that all laws serve a purpose ,i.e , they facilitate human
coordination and in order to serve this purpose effectively these laws cannot be conceived at the
arbitrary will of the sovereign but then the law should be conceived as “ the product of an interplay
of purposive orientations between the citizens and the Government.”8 Lon Fuller says that law is
an ongoing enterprise. It is aspirational in the sense that there is an ideal conception of law which
we always strive to achieve but we cannot. He compared this arch-type with the example of a Rolls
Royce Car. According to Fuller , Rolls Royce is considered by most people as the ideal motor car,
while a rusted metal shell with punctured wheels and broken glasses can be considered as the
lowest form of a motor car even though it no longer serves its purpose.9 There a multitude of cars
between these two extremes, the only difference is that for different people the glass ceiling is
different. The same applies for laws , there are ideal laws which every legal system wants to
achieve and then there are laws which serve no purpose . ‘So should they be called laws ?’ is the
question that Fuller asks. Fuller ends this argument by saying that just like a car needs maintenance
every legal system needs attention as to the question what makes law possible.

8. CRITICISM

6
Larry May , The Hart-Fuller Debate in the Twenty- First Century, International Criminal Law and Inner Morality of
Law 84, Hart Publishing , 2010
7
Suri Ratnapala, Jurisprudence, Cambridge University Press
8
By purpose he does not mean the purpose a particular legislation serves, but the purpose of having law at all
9
Ngaire Naffine, The Common Discourse of Hart and Fuller, HART PUBLISHING , 2010, at 56
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The author appreciates Fuller’s rejection of the existence of an eternal “natural code,” , based on
human reason, as believed by the thinkers of the Enlightenment era; but he thinks that this rejection
was too simplified. He praises Fuller for countering legal positivists who tend to eliminate values
from legal considerations and reduce the law to a phenomenon disassociated from morality and
based on the will of the legislator. Again, he agrees with Fuller in his dislike of Hitler, but he does
not think that Fuller is right in blaming legal positivism for paving the way for Hitler’s dictatorship
by the simple reasoning that the law is devoid of all ethical values and pressures for new needs
and that even most unjust statutes must be abided by because they constitute the law.

9. CONCLUSION

We would like to conclude by answering the question that was raised at the beginning of this work
. The entire debate can be said to have stemmed from the question that can morality be used as a
scale to measure the validity of law? The answer from our point of view, taking into consideration
our love for a centralized authority and everything that entails it, would be that morality cannot be
used as a scale to measure the validity of law , because moral duty is different from legal duty.
The very function of law is to mark the position when the private view of a group of people ceases
to be their private view and becomes binding on them. If we sacrifice this cherished principle then
we subject law to subjective evaluation through the yardstick of subjective morality. But this
should not be seen in black and white. We would also contend that since the purpose of law is to
serve justice, if any positive human law serves injustice explicitly to such an extent that the very
purpose of it is to discriminate or persecute a particular community or group then it can be in no
way considered to be a law at all. In this matter we agree with the Radbruch Doctrine which says
that when the law does acute injustice betraying the principles of equality which lie at the core of
justice , then that statute is not merely a flawed one but lacks the very nature of law. Thus although
morality should not be mixed with law and law should not be such that deliberately delivers gross
injustice to its subjects and thus is no law at all.

10. BIBLIOGRAPHY

BOOKS

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* Suri Ratnapala, Jurisprudence, Cambridge University Press

JOURNALS

* Larry May , The Hart-Fuller Debate in the Twenty- First Century, International Criminal Law and
Inner Morality of Law 84, Hart Publishing , 2010

* Ngaire Naffine, The Common Discourse of Hart and Fuller, HART PUBLISHING , 2010, at 56