Beyond Forms Functions and Limits The Interactionism of Lon L Fuller and Its Implications For Alternative Dispute Resolution

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Beyond Forms, Functions and Limits:

The Interactionism of Lon L. Fuller and Its
Implications for Alternative Dispute Resolution
Helen H.L. Cheng
I. Introduction
Legal philosopher Lon L. Fuller is undoubtedly one of the foremost jurists to

have inspired the development of alternative dispute resolution (ADR). Regarded
by some as an intellectual father1 of the ADR field, Fuller is recognized as “the
only legal philosopher to take theorizing about dispute resolution processes
seriously.”2 He was also one of the early advocates of process pluralism,3 a vision
some see as the driving force behind the ascendance of ADR.4 Although some are
calling for more “serious attention” to be paid to Fuller’s ideas and their implica-
tions for ADR,5 efforts to this end are still rare. Within the ADR circle, interest in
Fuller’s thinking usually begins and ends with his arguments for the forms, func-
tions and limits of various dispute resolution processes. Very rarely have ADR
scholars attempted to situate Fuller’s claims within his interactionist perspective,
a vision that serves as a generative source of his writings about processes. The
narrowness of this interest shown towards Fuller’s work has prevented his ideas
and their relevance to the ADR field from being more fully appraised. The aim
of this essay is to explore the interactionist perspective of Fuller and to consider
some of its implications for the ADR field.
II. Fuller in ADR Discourse
The works of Fuller that have attracted the most attention of ADR scholars are
Thanks are due to Roshan Danesh, Paul Emond, Carrie Menkel-Meadow and Kenneth Winston for
helpful comments on an earlier draft; to Mary Condon, Lisa Dufraimont and Martha Minow for
support of this project, and to AmadeaEditing for editorial assistance.
1. Carrie Menkel-Meadow, “Mothers and Fathers of Invention: The Intellectual Founders of
ADR” (2000) 16 Ohio St J Disp Resol 1 at 4 [Menkel-Meadow, “Mothers and Fathers”].
2. Ibid at 13.
3. Ibid at 13-22. See also Robert A Baruch Bush, “Efficiency and Protection, or Empowerment
and Recognition?: The Mediator’s Role and Ethical Standards in Mediation” (1989) 41 Fla L
Rev 253 (“[t]he notion expressed in the text that different dispute resolution processes have
different capacities that uniquely serve, and to some extent embody or manifest, different
values, has been most profoundly explored in the work of Lon Fuller,” at 266 n 35); Peter R
Teachout, “The Soul of the Fugue: An Essay on Reading Fuller” (1986) 70 Minn L Rev 1073
[Teachout, “Soul”] (“[m] uch of the current scholarly interest in alternative dispute resolution
and in polycentric decision-making can be directly traced to Fuller’s creative pioneering work
in these areas” at 1077).
4. John Lande, “Getting the Faith: Why Business Lawyers and Executives Believe in Mediation”
(2000) 5 Harv Negot L Rev 137 at 144-51.
5. See, e.g., Menkel-Meadow, “Mothers and Fathers,” supra note 1 at 2. See also Carrie Menkel-
Meadow, “Peace and Justice: Notes on the Evolution and Purposes of Legal Processes”
(2005) 94 Geo LJ 553 at 561-65 [Menkel-Meadow, “Peace”] (relating Fuller’s eunomics
studies to ADR).
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258 Cheng
his essays on mediation,6 arbitration,7 and adjudication.8 Indeed, these works

well deserve the attention they received, as they are of great significance to
the ADR field. They are pioneering works which elevated informal and non-
governmental processes to a level on par with formal processes of law as ways
of social ordering.9 They drew attention to the limits of adjudication by showing
that some social problems are inherently not susceptible to resolution through
adjudication, while identifying the possibility that other processes may succeed
better at solving such problems.10 A common theme that runs through these es-
says is a focus on the forms, functions and limits of respective processes, as he
sought to identify the distinct pattern of interaction in each one, the mode of
participation it requires of its participants, the function it serves and the con-
text in which it thrives. From these essays emerged the now familiar idea that
each process has its own zone of competence operating within a particular set
of sustaining conditions—an idea which Robert A. Baruch Bush referred to as
“process jurisdiction,”11 and is at the root of many of the core tenets of ADR.12
These essays have generated ideas that have preoccupied those involved in the
ADR field since its earlier days and continue to dominate the thinking of its
proponents even today.
A less explored aspect of Fuller’s writings on the various dispute resolution pro-
cesses, however, is the fact that the ideas represented by these essays were intended
to be part of a book on “eunomics,” a term Fuller coined to mean “the science, the-
ory, or study of good order and workable social arrangements.”13 Fuller’s purpose
in the eunomics project was to understand the phenomenon of social ordering in its
diverse expressions. He identified a wide range of processes that serve an ordering
function in society, encompassing: adjudication, legislation, mediation, managerial
direction, customary law, contract, property, voting, and even the deliberate resort
to chance.14 He considered all of them to be distinct elements of an integrated
6. Lon L Fuller, “Mediation—Its Forms and Functions” in Kenneth I Winston, ed, The Principles
of Social Order: Selected Essays of Lon L. Fuller (Oxford and Portland: Hart, 2001) 142
[Fuller, “Mediation”].
7. Lon L Fuller, “Collective Bargaining and the Arbitrator” (1963) Wis L Rev 3 [Fuller,
“Collective Bargaining”].
8. Lon L Fuller, “The Forms and Limits of Adjudication” in Winston, supra note 6 at 102 [Fuller,
“Adjudication”].
9. See, e.g., Fuller, “Mediation,” supra note 6 at 143, 151, 171; Lon L Fuller, “The Role of
Contract in the Ordering Processes of Society Generally” in Winston, supra note 6 at 188-89
[Fuller, “Role of Contract”].
10. See, e.g., Fuller, “Adjudication,” supra note 8 at 126-36; Fuller, “Mediation,” supra note 6 at
160-61.
11. Robert A Baruch Bush, “Dispute Resolution Alternatives and the Goals of Civil Justice:
Jurisdictional Principles for Process Choice” (1984) Wis L Rev 893 at 900 [Bush,
“Jurisdictional”].
12. For instance, Frank Sander’s “multidoor courthouse” model and his subsequent “fit the forum
to the fuss” idea are both built on the notion of process jurisdiction often associated with
Fuller’s work. See Frank EA Sander, “Varieties of Dispute Processing” (1976) 70 FRD 111;
Frank EA Sander & Stephen B Goldberg, “Fitting the Forum to the Fuss: A User-Friendly
Guide to Selecting an ADR Procedure” (1994) 10 Negot J 49; see also Menkel-Meadow,
“Peace,” supra note 5.
13. Lon L Fuller, “American Legal Philosophy at Mid-Century” (1954) 6 J Legal Educ 457 at 477.
14. Fuller, “Role of Contract,” supra note 9 at 188-89.
01_Cheng_36.indd 258 6/7/13 4:47 PM

Beyond Forms, Functions and Limits 259
system of social ordering.15 Because of their norm-producing and order-generating

capacity, Fuller recognized them as legal processes and regarded the arrangements
that they engendered as “law.”16 But Fuller never completed his book on eunom-
ics.17 As a result, his ambition for the eunomics project that would bind his essays
on the different dispute processes together and give them a unified coherence was
not made as explicitly as it might have been, had he finished the book. This may
be one reason why the broader unifying program that underlies Fuller’s exposé of
different ordering processes has seldom been accounted for in ADR discourse.
15. Fuller often referred to the interconnection of various social processes. In Mediation—Its
Forms and Functions, he remarked that:
If we were to distinguish broadly among the various processes that contribute to so-
cial ordering we might discern six: legislation, adjudication, administrative direction,
mediation, contractual agreement, and customary “law”…. Even in modern societies
these forms are interrelated in various complex ways and at times tend to shade into
one another. In primitive society, I would suggest, they appear in still more mixed and
muted forms; generally any scruple about blending or mixing them seems to be absent,
perhaps they are simply not perceived as separate processes.
Fuller, “Mediation,” supra note 6 at 171-72. See also Fuller, “Role of Contract,” supra note
9 at 189, 193-98 (relating contract to a whole range of other processes, including customary
law, enacted law, property, adjudication, mediation, voting, etc., to illustrate their overlap or
complementarity); Fuller, “Collective Bargaining,” supra note 7 at 43-46 (discussing the inter-
dependence between successful labor arbitration and successful collective bargaining); Lon L
Fuller, “Human Interaction and the Law” (1969) 14 Am J Juris 1 [Fuller, “Human Interaction”]
(illustrating the interactional foundation of customary law, contract, legislation and adjudica-
tion; and suggesting that adequate understanding of the latter three forms of law depends upon
understanding customary law).
16. Besides being a process pluralist, Fuller was also a legal pluralist, recognizing “hundreds of
thousands” of “systems of law” operating simultaneously alongside official state law in cus-
tomary, informal and non-governmental domains. See, for example, his explanation for why
the parietal rules of a college should be considered as “essentially a branch of constitutional
law” in Lon L Fuller, The Morality of Law, revised ed (New Haven: Yale University Press,
1969) at 124-29 [Fuller, Morality of Law]. See also Fuller, “Human Interaction,” supra note
15 at 1; Fuller, “Role of Contract,” supra note 9 at 192-93; Lon L Fuller, Anatomy of the
Law (Middlesex, UK: Penguin Books, 1968) at 63-120 [Fuller, Anatomy] (proposing a broad,
pluralist conception of law by distinguishing between the “made” and “implicit” elements
of law); Kenneth I Winston, “The Ideal Element in a Definition of Law” (1986) 5 Law &
Phil 89 [Winston, “Ideal Element”] (“the important transformation is [Fuller] becoming, as
he put it once in lecture, a legal pluralist.” at 108); Roderick A Macdonald, “Legislation and
Governance” in Willem J Witteveen & Wibren van der Burg eds, Rediscovering Fuller: Essays
on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999)
279 [Macdonald, “Legislation”] (discussing how Fuller’s ideas about eunomics implicate the
issue of legal pluralism).
17. The unfinished eunomics project was taken up by Kenneth I Winston, who collected various
essays that were intended to be part of the eunomics project and published them in a collection
called The Principles of Social Order: Selected Essays of Lon Fuller. In the introduction to the
collection, Winston accounted for the background of these works as follows:
In the late 1950s and early 1960s, [Fuller] planned a systematic “essay in eunomics”
entitled “The Principles of Social Order” to carry out his suggested program, but only
the introductory chapter, “Means and Ends,” was actually written…. Yet, in the decade
following, he devoted the bulk of his scholarly attention to the enumeration and de-
scription of a wide variety of legal processes and their diverse manifestations, including
adjudication, mediation, legislation, contract and managerial direction. The result is
that much of the detail of the eunomics program was actually worked out, in something
of the form one might have expected, but without any extended theoretical exposition
to display the unity of the program or to clarify the conception of law underlying the
particular analysis. In bringing together these “exercises in eunomics” in a single vol-
ume, I expect that the connectedness of their concerns will be apparent.
Kenneth I Winston, “Introduction” in Winston, supra note 6 at 29.
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260 Cheng
Emerged from this analytical oversight is a somewhat distorted understanding

of Fuller’s work in the ADR context. Most notable is the notion, held by some,
that because of Fuller’s focus on the distinct logic and requirements of different
processes, his analysis of process represents an essentialist perspective,18 one
that understands processes as having certain essential and immutable charac-
teristics, which can be derived by abstracting from history and context, while
overlooking their variation in actual practice.
While this notion is not without support—in light of the fact that Fuller him-
self had said his purpose in The Forms and Limits of Adjudication was to “sepa-
rate the tosh from the essential”19—it is in tension with many of Fuller’s claims
elsewhere. For instance, in Irrigation and Tyranny,20 he made the point that the
availability of particular forms of institutional arrangement or processes of deci-
sion-making represents a kind of social capital that is contingent upon the state of
development of a particular society.21 In that essay, Fuller explored the possible
explanations for why there was a tendency towards despotism in early hydraulic
civilizations.22 He noted that many processes, such as the casting of lots or re-
ciprocal exchange, now taken for granted, were not available at the time of these
ancient societies. To him, this early, more impoverished level of institutional
means, along with the complexity associated with the task of distributing irriga-
tion, provided a social climate that allowed hydraulic despotism to flourish. In
highlighting the historical dimension associated with the practice of despotism in
these ancient societies, Fuller was arguing implicitly for an approach to analyz-
ing process that is historically conscious,23 contrary to the essentialist label some
have attributed to his work.
Increasingly attempts have been made to rectify the distortion of Fuller’s
work in ADR discourse.24 Fuller’s work also deserves a closer look in the ADR
18. See, e.g., Joel B Grossman, “Judicial Legitimacy and the Role of Courts: Shapiro’s Courts”
(1984) American Bar Foundation Research Journal 214 at 215-21; Austin Sarat, “The ‘New
Formalism’ in Disputing and Dispute Processing” (1988) 21 Law & Soc’y Rev 695 at 696-
97, 705; Menkel-Meadow, “Mothers and Fathers,” supra note 1 at 14. Contra Macdonald,
“Legislation,” supra note 16 at 299-300.
19. Fuller, “Adjudication,” supra note 8 at 104.
20. Lon L Fuller, “Irrigation and Tyranny” in Winston, supra note 6 at 208 [Fuller, “Irrigation”].
21. For further discussion on the developmental understanding of institution and society that un-
derlies Fuller’s work, see infra note 131.
22. As Winston explained, this tendency towards despotism “touches most directly on the form of
social ordering that Fuller called managerial direction,” which is characterized by “the authori-
tative issuance of directives to subordinates for accomplishing tasks or ends set by a superior”:
Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 207. Managerial direction as
a form of social ordering is typically embodied in the functioning of governmental agencies in
the modern administrative state.
23. Fuller’s attention to context, social experiences, and historical contingency is acknowledged
by many. For instance, Philip Selznick regarded Fuller’s perspective as “diagnostic, empirical
and philosophical,” one that “led him to a keen awareness of variation in social experience.”
Selznick suggested that “[a]t some point in the future, when we become more open to the
moral relevance of social inquiry, more empirical in our study of philosophical issues, more
capable of uniting moral and social theory, Lon Fuller’s work will stand as a landmark.” See
Philip Selznick, “Preface” in Witteveen & van der Burg, supra note 16 at 10-11. See also infra
Part IV.B.
24. See, e.g., Robert G Bone, “Lon Fuller’s Theory of Adjudication and the False Dichotomy
Between Dispute Resolution and Public Law Models of Litigation” (1995) 75 BUL Rev 1273
01_Cheng_36.indd 260 6/7/13 4:47 PM

context because of the light it may shed on some of the important issues in the
ADR field today.
This essay will take a constructive approach to extrapolating from Fuller’s
writings an understanding of his interactionism and its relevance to process.
Where Fuller did not explicitly develop some of the claims presented below, it is
believed that they are nonetheless implicit in his argument.
III. Fuller’s Interactionist Perspective
A closer reading of Mediation—Its Forms and Functions reveals that Fuller in-
tended in that article not only to examine the different dimensions of mediation,
but also to use the study of mediation to substantiate an interactionist thesis about
the nature of social ordering—a thesis at the heart of his ambition for the eunom-
ics project. He explained:
A serious study of mediation can serve, I suggest, to offset the tendency of modern
thought to assume that all social order must be imposed by some kind of “author-
ity.” When we perceive how a mediator, claiming no “authority,” can help the par-
ties give order and coherence to their relationship, we may in the process come
to realize that there are circumstances in which the parties can dispense with this
aid, and that social order can often arise directly out of the interactions it seems to
govern and direct.25
Despite this explicit reference, the broader objective Fuller intended for his study
of mediation appears to have slipped under the radar of most ADR scholars.
What, then, is Fuller’s interactionist thesis? What worldview and assumptions
underlie it? How does it relate to his study of process?
A. A Description
The interactionist thesis may be thought of as Fuller’s response to the legal posi-
tivist thinking that distinguishes law by its authority to command and that insists
on the separation of what law is from what it ought to be.26 That these are the
ideas he was speaking to in his study of mediation can be gleaned from the pref-
ace he wrote for the Mediation article, where he began by putting “mediation in
the wider context of some assumptions of methodology that appear to shape our
efforts to comprehend social phenomena generally.”27 The “assumptions” that
(“[m]y goal … is to retrieve Fuller’s complex and subtle theory from the caricature of the dis-
pute resolution model … Fuller’s theory lies somewhere between the public law and dispute
resolution poles of this dichotomy, and considerably closer to the public law end.” at 1275);
Macdonald, “Legislation,” supra note 16 at 299-300, 310 (suggesting that the understanding
of Fuller’s elaboration of different processes typically found in ADR discourse misconstrued
the broader message underlying his study of process).
25. Fuller, “Mediation,” supra note 6 at 151 [emphasis added].
26. For instance, Fuller stated in “Reply to Critics” in Morality of Law that: “In the opening por-
tions of this Reply I suggested that analytical legal positivism ‘lacks a social dimension.’ As a
cure for this defect I have recommended ‘an interactional theory of law.’” Fuller, Morality of
Law, supra note 16 at 237.
27. Fuller, “Mediation,” supra note 6 at 142.
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262 Cheng
he spoke of refer to a tendency to construe reality dichotomously: “structure

versus process, substance versus procedure, statics versus dynamics and—on
a more elevated plane—Being and Becoming.”28 Fuller observed these ana-
lytic “schisms” especially in the claims of legal positivism, which in his view
focuses disproportionately on the hierarchic structure of law, to the exclusion
of the activities that bring law into being, in light of the positivist vision of
equating law with “manifested social power.”29 He felt that these dichotomies
distorted reality.30 It is towards integrating these antinomies that Fuller put for-
ward his interactionist thesis: “If we could come to accept what may be called
broadly an interactional view of law, many things would become clear that are
now obscured by the prevailing conception of law as a one-way projection of
authority.”31 Fuller perceived law32 as an “interactional phenomenon,”33 and un-
derstood its different facets in interactionist terms. In the following, the link
between his interactionist vision and his thinking on the authority, meaning, and
purpose of law will be explored.
Rather than attributing the authority of law to the coercive power of the state
to force compliance, Fuller found the authority of the law to be dependent on its
congruence with shared expectations and attitudes that are derived from social in-
teraction. He thought the authority of law would be diminished when official law
28. Ibid.
29. Fuller, Morality of Law, supra note 16 at 145.
30. He confronted these “schisms” in The Law In Quest of Itself, in which he said, “nature does
not, as the positivist so often assumes, present us with the is and the ought in neatly separated
parcels. If there is to be a ‘clear distinction’ between them it will have to be brought about by
the analytical efforts of the positivist.” Using the interpretation of statues as an example, he
explained,
[t]he statute or decision is not a segment of being, but … a process of becoming. By
being reinterpreted it becomes, by imperceptible degrees, something that it was not
originally. The field of possible objectives is filled with overlapping figures, and the
attempt to trace out distinctly one of these figures almost inevitably creates a new pat-
tern. By becoming more clearly what it is, the rule of the case becomes what it was
previously only trying to be. In this situation to distinguish sharply between the rule as
it is, and the rule as it ought to be, is to resort to an abstraction foreign to the raw data
which experience offers us.
Lon L Fuller, The Law in Quest of Itself (Chicago: The Foundation Press, 1940) at 7, 10
[Fuller, Quest]. See also Teachout, “Soul”, supra note 3 at 1078, 1105-26 (“[t]he most striking
feature of Fuller’s jurisprudence is the powerful transformation it works in our understanding
of the nature of the troublesome antinomies with which legal philosophy has traditionally been
concerned. Fuller’s thought is a great master solvent of the classic antinomies of jurispru-
dence” at 1078).
32. The term “law” as used here refers to Fuller’s broad conception of law, and includes official
state-law, as well as rules and arrangements achieved through informal or non-governmental
processes of social ordering. See supra note 16 and accompanying text.
33. Fuller, “Human Interaction,” supra note 15 at 20. Fuller was not alone in adopting an interac-
tionist perspective. For instance, contemporaneous with Fuller was the emergence of a school
called “symbolic interactionism” in the field of sociology: see, e.g., Herbert Blumer, Symbolic
Interactionism: Perspective and Method (Englewood Cliffs: Prentice-Hall, 1969); Herbert
Blumer, George Herbert Mead and Human Conduct, edited by Thomas J Morrione (Walnut
Creek: AltaMira Press, 2004). Like these broader sociological theories, Fuller’s interactionism
was influenced by the pragmatist philosophy of John Dewey and William James: see Kenneth
I Winston, “Is/Ought Redux: The Pragmatist Context of Lon Fuller’s Conception of Law”
(1988) 8 Oxford J Legal Stud 329 [Winston, “Is/Ought”]. No attempt is made in this essay,
however, to relate these broader sociological theories to Fuller’s work.
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is foreign to or conflicted with social standards or practices that are widely held.34
As Kenneth Winston observed, Fuller was deeply committed to the view that
“the authority of law cannot be based on coercive threats, since force (as Fuller
put it) cannot lift itself by its own bootstraps into legitimacy,”35 and that “law
has authority only if based on general societal acceptance.”36 In Fuller’s view,
general societal acceptance of a law is derived from the dynamic interactions
of social actors. The sense of obligation citizens have towards a given law and
the extent to which it is lived by them, depends on its compatibility with social
expectations and practices born out of everyday dealings. While Fuller thought
this interactional foundation to be present in different forms of law,37 he drew
particular attention to its workings with respect to customary law. He perceived
custom as “a pattern of reciprocal expectations arising out of past interactions,”38
and thought that custom acquires a compulsive force when a “sense of obliga-
tion” is associated with the “interactional expectancies,” such that legal subjects
“guide their conduct toward one another by these expectancies.”39 Customary
law was of particular importance to Fuller because it challenges the positivist
notion that law derives its power from “some identifiable center of authority.”40
As he explained, “[c]ustomary law is not the product of official enactment, but
owes its force to the fact that it has found direct expression in the conduct of
men toward one another.”41 The emphasis here is on the law in action. The more
receptive people are towards a given law, the more it guides individual action.
Hence, vital to the force of law is the extent to which it engages the support of
the grassroots with regard to its purpose, content, and application.
The influence of interactionism is also discernible in Fuller’s thinking on the
communicative dimension of law. He viewed the law as a language deriving its
content and meaning through ongoing social interaction, while also conferring
meaning on that interaction.42 This view recognizes the reciprocity between the
law and its subject, and sees the two as engaging in a dynamic interplay. On the
one hand, in embodying a set of “stabilized interactional expectancies,”43 the
law acts as a signpost that orients and guides ongoing interactive responses by
society members. In this sense, law gives meaning. On the other hand, these sta-
bilized expectancies as reflected by the law require ongoing human interaction in
order to be generated and sustained. Without continuing social interaction, it is
34. See, e.g., Lon L Fuller, “The Law’s Precarious Hold on Life” (1969) 3 Ga L Rev 530 [Fuller,
“Precarious”] (using multiple examples, including that of colonial law, to illustrate “where
law fails to achieve an effective hold on life… because it projects itself upon a social terrain
incapable of supporting it” at 536).
35. Kenneth I Winston, “Introduction to the Revised Edition” in Winston, supra note 6 at 2-3
[Winston, “Revised Introduction”].
36. Ibid at 3.
37. Fuller, “Human Interaction,” supra note 15.
38. Lon L Fuller, “Law as an Instrument of Social Control and Law as a Facilitation of Human
Interaction” (1975) BYUL Rev 89 at 93 [Fuller, “Social Control”].
39. Fuller, “Human Interaction,” supra note 15 at 9.
40. Fuller, “Social Control,” supra note 38 at 93.
42. See, e.g., Fuller, “Human Interaction,” supra note 15 at 1-13.
43. Fuller, “Social Control,” supra note 38 at 95.
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264 Cheng
not possible for the law to acquire or retain its social meaning. Instead of acting
upon the citizens, the law, as seen through this interactionist lens, “invite[s] the
citizen[s] to interact with it.”44 By situating the content and meaning of law in the
interactive processes that bring it into being and sustain it, the dynamic dimen-
sion of law is thereby made visible. The law, in this view, is constantly in a state
of interaction with its social context, at once influencing and being shaped by the
participation of those engaged in that interaction. Since the meaning of the law
is negotiated through this process of interaction, it is always subject to revision
based on subsequent experience.45
Fuller’s interactionist concern also led him to understand law as having a
purpose that is enabling and facilitative.46 He observed that “social interaction
requires confining forms, directive channels.”47 As he explained, “if we are to
live with our fellows, our actions—whether they be selfish or altruistic—cannot
be effective unless they take place within some framework that brings them into
meaningful relation with the actions of others.”48 Meaningful and effective social
interaction requires an interpretive framework that ascribes social meaning to
human behavior. Given his understanding of the meaning-giving attribute of law,
Fuller thought law should serve to “facilitate human interaction,”49 in addition
to serving the purpose of social control typically associated with it. Using the
example of customary law, he explained:
We sometimes speak of customary law as offering an unwritten code of conduct.
The word code is appropriate here because what is involved is not simply a nega-
tion, a prohibition of certain disapproved actions, but also the obverse side of this
negation, the meaning it confers on foreseeable and approved actions, which then
furnish a point of orientation for ongoing interactive responses.50
Here, Fuller pointed to the prohibitive, as well as the facilitative function of

law. He thought “any functioning social order” “consists of a pattern that em-
braces both constraints and powers,” and that “the constraints and powers that
make up a social order are in interaction with one another; each serves in part
to determine the meaning and efficacy of the other.”51 He saw law as not only a
constraint, but also as a framework of participation that “gives social effect to

45. Fuller’s discussion of contract may be used to illustrate this point. To him, the substance of a
contract may be considered a form of “law” governing the relationship between the parties.
Here, he pointed out that the meaning of a contract is determined and alterable by the parties’
interaction, both before and after reaching an agreement, and that it is difficult to maintain a
clear line separating the substance of a contract and the process that has generated it. Seen in
this light, the written contract acquires a dynamic quality, serving more as an organic “frame-
work for an ongoing relationship, rather than a precise definition of that relationship,” fixed
and insulated from the parties’ conduct towards one another. See Fuller, “Human Interaction,”
supra note 15 at 13-20.
46. See also infra notes 84-95 and accompanying text.
47. Lon L Fuller, “The Case Against Freedom” in Winston, supra note 6 at 320 [Fuller, “Case
Against Freedom”] [emphasis in original].
48. Ibid at 320-21.
49. Fuller, “Social Control,” supra note 38.
50. Fuller, “Human Interaction”, supra note 15 at 2-3 [emphasis in original].
51. Fuller, “Case Against Freedom,” supra note 47 at 322 [emphasis in original].
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individual choice.”52 In this latter sense, law enables social actors to engage in
social actions that would otherwise be impossible.
There is also a connection between Fuller’s interactionism and the broader
purposive orientation to which he subscribed. Fuller assumed that human be-
havior is always purposeful,53 and that this purposive dimension is inherent in
all forms of human striving, at both the individual and institutional level. He
insisted that “law be viewed as a purposeful enterprise.”54 The human interac-
tion out of which the law emerges and which the law facilitates may be seen to
be brought about by the purposive actions of its participants, who are constantly
trying to ascertain the purposes of others while trying to formulate responses
that reflect their own purposes in that interaction. Thus, purposive actions, in
addition to connoting a sense of “directiveness,” are also responsive, perhaps
even “adaptive” to one’s environment and context.55 While the interaction comes
about through the purposive efforts of its participants, it, in turn, also provides
a medium through which the purposes of its participants become actualized and
acquire concrete meaning. It is through this interaction that purposive strivings
are made manifest. Hence, implicit in the purposiveness to which Fuller sub-
scribed, is, once again, the logic of interactionism. His purposive interpretive
approach is not one that mechanistically reduces all human action to a set of
pre-determined and finite ends. Rather, purpose is understood to be organic and
evolving; its meaning is always provisional and subject to being redefined by an
ongoing actualizing process.56
As the above indicates, an interactionist vision pervades many aspects of
Fuller’s conception of law. This interactionist perspective is increasingly being
appraised by those who study Fuller as one of the most distinguishing aspects
of his insights about law and its institutions.57 Certainly Fuller himself thought
52. Lon L Fuller, “Freedom—A Suggested Analysis” (1955) 68 Harv L Rev 1305 at 1312 [Fuller,
“Freedom”].
53. For instance, Fuller stated that, “In so far as we are able to make sense out of human behavior
in its larger aspects, it is still in terms of purpose; that is, we assume that men are acting clearly
or vaguely in an effort to achieve something, even if it is only the preservation of accustomed
ways.” See ibid at 1308. See also Lon L Fuller, “Human Purpose and Natural Law” (1958) 3
Natural Law Forum 68 [Fuller, “Human Purpose”].
54. Fuller, Morality of Law, supra note 16 at 145. This insistence on the purposiveness of law is a
key factor that distinguished Fuller from his positivist critics. HLA Hart once described Fuller
to be “in love with the notion of purpose” and pointed to Fuller’s “passion” with this “idée
maîtresse” as “blinding” his understanding of law. See HLA Hart, “Book Review” (1965) 78
Harv L Rev 1281 at 1296 (reviewing Fuller’s Morality of Law). See also Bone, supra note 24
(“Fuller rested his entire theory of institutions on the fundamental assumption that all human
activity is oriented toward purposes,” at 1284); Peter R Teachout, “Uncreated Conscience” in
Witteveen & van der Burg, supra note 16 at 240 [Teachout, “Uncreated Conscience”] (noting
that discovering and elaborating “the civilizing purposes served by the law” form the heart of
Fuller’s jurisprudence).
55. Fuller, “Human Purpose,” supra note 53 at 72.
56. For instance, he said that “[t]he meaning of any given purpose is always controlled by latent
purposes in interaction with it”: ibid at 71.
57. Fuller’s contribution to legal theory is most often associated with his debate with HLA Hart on
the morality of law. He is often thought of as belonging to the natural law tradition, given his own
admission that the principles of legality he proposed may be viewed as “a procedural version of
natural law.” See, e.g., Robert S Summers, Lon L. Fuller (Stanford: Stanford University Press,
1984) (“[Fuller] is unquestionably the leading secular natural lawyer of the twentieth century
01_Cheng_36.indd 265 6/7/13 4:47 PM

266 Cheng
this interactionist perspective to be foundational in his conception of law. In the

chapter “A Reply to Critics” in his Morality of Law, Fuller explained that this
interactionist view of law is the source of his disagreement with legal positivism:
“I have tried to show that our differences…stem from a basic disagreement about
law itself. This disagreement I have attempted to express by contrasting a view
of law that sees it as an interactional process and one that sees in it only a unidi-
rectional exercise of authority.”58 Yet, the influence of this interactionist perspec-
tive goes beyond Fuller’s challenge against legal positivism, and permeates his
thinking about legal processes and institutional design. A clear example of this is
found in Human interaction and the law, in which Fuller traced the workings of
interactionism in customary, contract, enacted, and common law.59 As Witteveen
observed, to Fuller, “[i]nteractionism is at the root of all working mechanisms
of order, it governs all the legal processes that contribute to ‘good order and
workable social arrangements.’”60 This interactionism, then, is the backbone of
Fuller’s eunomics project.
B. Worldview and Assumptions: Human Capacities and Grassroots Power
Fuller’s interactionist perspective raises a number of questions about the reality

and sources of power in social relationships, and invites us to explore the issue of
power in a broader discussion about human nature. One of the loftiest aims of the
ADR field, as Carrie Menkel-Meadow suggested, is “to encourage every human
being to approach every other one in the spirit of shared problem solving and
respect for mutual existence.”61 Orientation towards the grassroots and faith in
human agency are rudimentary concerns in the ADR field.62 They are also at the
in the English speaking world” at 151). However, it is being increasingly recognized that the
conception of law Fuller developed goes beyond the positivism vs. natural law divide and oc-
cupies a distinct category, characterized by an interactionist focus. See, e.g., Willem J Witteveen,
“Rediscovering Fuller: An Introduction” in Witteveen & van der Burg, supra note 16 at 32 (not-
ing that Fuller has “developed a conception of law that falls outside of the scope of the positiv-
ism-natural-law distinction altogether. This conception is one of law as interactionism,”); Gerald
J Postema, “Implicit Law” in Witteveen & van der Burg, supra note 16 at 257-58 (“[The] es-
sentially interactive dimension of implicit law is the hallmark of Fuller’s jurisprudence”); Bone,
supra note 24 at 1286 (“Fuller believed that the most basic unit of social life was not the isolated
individual, but relationships of interaction among and between individuals”).
59. Fuller, “Human Interaction,” supra note 15.
60. Witteveen, supra note 57 at 34. This view conflicts with Marc Hertogh’s suggestion that while
Fuller emphasized interaction in mediation, he regarded ordering by authority as defining
adjudication and managerial direction. See Marc Hertogh, “The Conscientious Watermaster:
Rediscovering the Interactional Concept of Law” in Witteveen & van der Burg, supra note
16 at 381-85. Hertogh appears to have missed Fuller’s point that even in processes where
decisions are made based on an exercise of authority, the force of that decision ultimately is
derived from and sustained by an ongoing interaction between the lawgiver and its subjects
over time.
61. Carrie Menkel-Meadow, “Roots and Inspirations: A Brief History of the Foundations of
Dispute Resolution” in Michael L Moffitt & Robert C Bordone, eds, The Handbook of Dispute
Resolution (San Francisco: Jossey-Bass, 2005) 13 at 26.
62. Proponents of ADR often refer to self-determination and participation as justifications for
ADR processes. See, e.g., Carrie Menkel-Meadow, “Whose Dispute Is It Anyway?: A
Philosophical and Democratic Defense of Settlement (In Some Cases)” (1995) 83 Geo LJ
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heart of Fuller’s interactionism. Given this overlap, the questions about power
which Fuller’s interactionist perspective raises are germane to those concerned
with grassroots empowerment in the ADR context.
In understanding social order as arising out of and sustained by the interaction
of actors in society, Fuller recognized in such social actors an ability—how-
ever seemingly insignificant—to shape and contribute to the ordering of society.
Rather than seeing power as centralized and concentrated in a single source or
a few select sources, Fuller’s interactionist perspective gives rise to a pluralistic
notion of power arrangements, one that understands power to be diffuse and
dispersed at multiple levels of society, including the grassroots.63 This pluralistic
notion of power sharply contrasts with the focus of Austinian positivism on the
command of the sovereign, which emphasizes state power and power relations
that are vertical and centralized. Instead, Fuller’s interactionist perspective casts
grassroots actors in the active role of shaping the social order, through their in-
teractions with each other, with groups in society and with the state.
Integral to this pluralistic notion of power arrangements is the idea that no
social entity or force, no matter how strong or pervasive it may be, can be per-
fectly controlling.64 Fuller explicitly rejected the notion that a power-holder may
2663 [Menkel-Meadow, “Whose Dispute”] (claiming that “settlement can be defended as be-
ing participatory, democratic, empowering, educative, and transformative for the parties” at
2693); Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation: Responding to
Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994) (sug-
gesting that mediation responds to conflict through strengthening the parties themselves
by helping them develop greater capacities of self and for relating to others); Raymond
Shonholtz, “Justice From Another Perspective: The Ideology and Developmental History of
the Community Boards Program” in Sally Engle Merry & Neal Milner, eds, The Possibility
of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor:
University of Michigan Press, 1993) 201 (describing a major aim of the Community Boards
Program to be the empowerment of grassroots communities for self-governance); Anne
Milne & Jay Folberg, “The Theory and Practice of Divorce Mediation: An Overview” in Jay
Folberg & Anne Milne, eds, Divorce Mediation: Theory and Practice (New York: Guilford
Press, 1988) 3 (referring to party self-determination as a major benefit of divorce mediation);
Lawrence E Susskind, “Deliberative Democracy and Dispute Resolution” (2009) 24 Ohio St
J Disp Resol 395 (referring to public participation as a core value that underlies consensual
approaches to public decision making); Lisa B Bingham, “Why Suppose? Let’s Find Out: A
Public Policy Research Program on Dispute Resolution” (2002) J Disp Resol 101 (suggest-
ing to broaden the notion of self-determination in the ADR context to include not only party
self-determination over process and outcome, but also control over dispute system design).
See also Nancy A Welsh, “The Thinning Vision of Self-Determination in Court-Connected
Mediation: The Inevitable Price of Institutionalization?” (2001) 6 Harv Negot L Rev 1 at 15-21
(reviewing the importance of self-determination and party participation to the contemporary
mediation movement); Leonard L Riskin, “Decision-Making in Mediation: The New Old Grid
and the New New Grid System” (2003) 79 Notre Dame L Rev 1 (providing a framework for
understanding party decision-making in mediation).
63. The notion of diffusion of power is increasingly being used as a narrative of power. See, e.g.,
Joseph S Nye, The Future of Power (New York: Public Affairs, 2011) (employing a diffused
notion of power to describe international power relations in the twenty-first century).
64. This idea has been extensively explored in the study of legal pluralism. See, e.g., Sally Falk
Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate
Subject of Study” (1973) 7 L & Soc’y Rev 719 (exploring the plurality of normative order-
ing through the notion of semi-autonomous social fields); Marc Galanter, “Justice in Many
Rooms: Courts, Private Ordering, and Indigenous Law” (1981) 19 J Legal Pluralism 1 (chal-
lenging “legal centralism” and identifying the interactions between official legal system and
other indigenous normative systems); Sally Engle Merry, “Legal Pluralism” (1988) 22 L &
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268 Cheng
ever achieve complete dominance over others. As he explained, “there is no such

thing as total power”65 because there is always “an element of interaction or
reciprocity”66 in every power relationship:
The thesis concerning power that I shall maintain here asserts that every kind of so-
cial power, whether designed as formal or real, is subject to an implicit constitution
limiting its exercise. When we say that A has power over B we do not mean simply
that it lies within A’s capacity to destroy B; even a lunatic with an axe may have this
pointless power. When we speak of power as an aspect of social relations, we mean
that the power-holder, A, while allowing B to continue to function in some sense as
a human being, has the capacity to control B’s actions in certain respects. In other
words, A is in a position to take advantage of B’s capacity for self-direction and to
shape B’s exercise of that capacity for purposes of his own, which may of course
include that of benefiting B. The fact that A must leave in the addressee of his
power some remnant at least of his capacity for self-direction introduces into every
power relation an element of interaction or reciprocity, though the reciprocity in
question may be most unwelcome to A and so attenuated as to afford B little conso-
lation for his position of subservience. Nevertheless, this element of reciprocity is
always present and may under changing conditions grow in force.67
The emphasis here is on the relational context within which workings of power
take place.68 To Fuller, no power relation is completely devoid of any measure
of interaction between the power-holder and the subject of his power, especially
over the course of time. This inevitable degree of reciprocity, in turn, imposes a
constraint on the exercise of power by the power-holder, while allowing for the
possibility of resistance and negotiation by those subject to the power. For in-
stance, the “inner moralities” of law, which Fuller identified as imposing implicit
constitutional limits on the exercise of power by a lawgiver, were premised upon
the mutuality of responsibilities he observed “of government toward the citizen
and of the citizen toward government.”69 Embedded in the dynamic of reciproc-
ity, then, is a human tendency to resist subordination.
Fuller’s interactionist perspective not only traces the possibility of influence
Soc’y Rev 869 (noting that “plural normative orders are found in virtually all societies;” legal
pluralism focuses on the interactive relationship between official and unofficial forms of order-
ing); Carol Weisbrod, Emblems of Pluralism: Cultural Differences and the State (Princeton:
Princeton University Press, 2002) (offering an account of the relations between individuals,
groups, and the state, with an emphasis on cultural resonances of those relationships; contrast-
ing an account that emphasizes centralization and vertical relationships typically found in legal
discourse with a pluralist, horizontal counter-story).
65. Fuller, “Irrigation,” supra note 20 at 215.
66. Ibid at 214.
67. Ibid.
68. This relational framework of power has increasingly been explored in the context of conflict
resolution. See, e.g., Peter T Coleman, “Power and Conflict” in Morton Deutsch & Peter T
Coleman, eds, The Handbook of Conflict Resolution (San Francisco: Jossey-Bass, 2000) 108
(“[p]ower can be usefully conceptualized as a mutual interaction between the characteristics of
a person and the characteristics of a situation,” at 113); Robert S Adler & Elliot M Silverstein,
“When David Meets Goliath: Dealing with Power Differentials in Negotiations” (2000) 5
Harv Negot L Rev 1 (“[p]ower as discussed in this article is a relational concept, pertaining to
use between two or more people. Without social relationships, power becomes a fairly limited
and uninteresting topic,” at 10).
69. Fuller, Morality of Law, supra note 16 at 216. See also ibid at 19-27, 33-94, 200-24; Fuller,
“Irrigation,” supra note 20 at 215-16.
01_Cheng_36.indd 268 6/7/13 4:47 PM

that exists in the domain of those who are subordinated, but also raises the broad-
er question of what power is: does power only mean the ability to coerce or
extort? Does it always imply dominance or control over other people or things?
Or does power have multiple characteristics, including capacities that are facili-
tative, constructive, collaborative, or nurturing?70
In the passage about power quoted above, Fuller dismissed “A’s capacity to
destroy B” as “pointless power.” Clearly, the power to destroy is not trivial, given
the substantial amount of human energy spent on it. What Fuller thought “point-
less,” perhaps, was to define our understanding of power solely by this capacity
to dominate and destroy. Missing in this account of power is the creative and
generative dimensions of power, which Fuller recognized as an essential aspect
of human reality. He viewed people as creative, purposive beings, motivated by
a plethora of impulses and aspirations, capable of choosing and acting on goals,
and answerable for their actions.71 This explains why he regarded the protection
of “the creative, choosing, and purposive side of man’s nature,”72 and the foster-
ing of individuals to become “responsible, self-determining center of action,”73
as among the most fundamental objectives of law and social institutions.74 At the
70. These questions about power capture one of the central debates in the literature on power.
See Mark Haugaard, “Rethinking Power” (August 21, 2011), online: http://ssrn.com/ab-
stract=1913739; Gerhard Göhler, “‘Power to’ and ‘Power over’” in Mark Haugaard & Stewart
R Clegg, eds, The SAGE Handbook of Power 27 (London: SAGE Publications, 2009). At one
end of the debate is the widely circulated view that understands power as an ability to prevail
over others. See, e.g., Max Weber, Economy and Society: An Outline of Interpretive Sociology,
Guenther Roth & Claus Wittich, eds, (Berkeley & LA: University of California Press, 1978);
Robert Dahl, “The Concept of Power” (1957) 2 Behavioural Science 201. Against this pre-
dominant perspective is an alternative view that sees power as a capacity, a basis for human
agency, and emancipation: see, e.g., Hannah Arendt, On Violence (San Diego: A Harvest Book,
1970), Talcott Parsons, Essays in Sociological Theory (New York: The Free Press, 1954).
Others call for a synthesis of these competing views: see, e.g., Stewart R Clegg, Frameworks
of Power (London: SAGE Publications, 1989), Anthony Giddens, The Constitution of Society:
Outline of the Theory of Structuration (Berkeley & LA: University of California Press, 1984),
Amy Allen, The Politics of Our Selves: Power, Autonomy, and Gender in Contemporary
Critical Theory (New York: Columbia University Press, 2008). Recognizing the complexity
of power as a category of thought, some in the conflict resolution field are calling for a broader
definition of power, focusing on not only “power over,” but also “power to” and “power with,”
see, e.g., Coleman, supra note 68 at 111.
71. For example, Fuller explained that,
Every departure from the principles of the law’s inner morality is an affront to man’s
dignity as a responsible agent. To judge his actions by unpublished or retrospective
laws, or to order him to do an act that is impossible, is to convey to him your indiffer-
ence to his powers of self-determination. Conversely, when the view is accepted that
man is incapable of responsible action, legal morality loses its reason for being. To
judge his actions by unpublished or retrospective laws is no longer an affront, for there
is nothing left to affront—indeed, even the verb “to judge” becomes itself incongruous
in this context; we no longer judge a man, we act upon him.”
Fuller, Morality of Law, supra note 16 at 162-63. See also supra notes 53-56 and accompany-
ing text.
72. Fuller, “Freedom,” supra note 52 at 1314.
74. This positive conception of human nature is the basis for the distinction Fuller drew between
duty and aspiration in Morality of Law. For a discussion of Fuller’s morality of aspiration and
its implication for law and governance, see Wibren van der Burg, “The Morality of Aspiration:
A Neglected Dimension of Law and Morality” in Witteveen & van der Burg, eds, supra note
16 at 169.
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270 Cheng
same time, he was also convinced that the design of law and social institutions
represents one of the highest expressions of human creativity, and “the task of
perfecting them furnishes an outlet for the most vigorous of moral impulses.”75
Referring to lawyers as architects of social structures, Fuller viewed the order-
creating work that they engage in as an endeavor animated by a “creative spirit.”76
These positive human capacities appear to be recognized by Fuller as one of the
most fundamental wellsprings of power in society.
However, these human potentialities remain latent until they are actualized,
necessitating social participation and engagement. Fuller’s interactionism offers
a way of perceiving the participation of social actors in the making of the so-
cial order through their choices and actions—be they big or small, everyday
or rare, ordinary or extraordinary. By highlighting how the ordering of society
is derived from the interactions of social actors—with each other, with social
groups, or with the state—Fuller’s interactionist thesis brings into perspective
the interconnection between the individual and the collective, the private and
the public.77 It renders visible the power that individuals have and the relevance
of that power, as exercised through the daily choices and actions of individuals,
which in turn influence the arrangement and development of society. A problem
with the Austinian school of positivism, Fuller once remarked, is that while it
may discern “changes in an abstract thing called sovereign,” it is not capable
of discerning changes “in the fabric of men’s daily lives;” and even though it
recognizes “big revolutions,” it cannot perceive the “little” revolutions that “go
on all the time.”78 Missing in that perspective is a consciousness of the continu-
ing role of the grassroots in the making of the social order. The small decisions
of ordinary people, when perceived through Fuller’s interactionist lens, acquire
a broader social meaning, one that regards such small decisions as a form of
political participation and an exercise of democratic choice.79 In the following
75. Lon L Fuller, “Means and Ends” in Winston, supra note 6 at 72 [Fuller, “Means and Ends”].
76. Lon L Fuller, “The Lawyer as an Architect of Social Structures” in Winston, supra note 6 at
290 [Fuller, “Architect”].
77. For a discussion by Fuller on the interconnection and interaction of “the individual, the group
and the state,” see Fuller, “Freedom,” supra note 52 at 1321-22. For a similar, yet more elabo-
rated view, see Weisbrod, supra note 64.
78. Fuller, Quest, supra note 30 at 34.
79. Although beyond the scope of this essay, the diffused notion of power suggested by Fuller’s in-
teractionism also gives rise to the question of how social change may be pursued. To the extent
that such a view recognizes the individual’s power to effect change, it suggests that strategies
for social change must involve not only governmental actions, but also transformation at the
individual, institutional, and cultural level. In a way, it takes seriously the now-familiar adage
that “the personal is political,” and highlights the need for, and potential of, individual and pri-
vate institutional transformation in a multitude of approaches to social change. For further dis-
cussion on this issue, see: Roderick A Macdonald, “Unitary Law Re-form, Pluralistic Law Re-
Substance: Illuminating Legal Change (2007) 67 La L Rev 1113 (“The burden of this article
is to deploy the hypothesis of legal pluralism to provide an alternative account of legal change
in contemporary official normative regimes,” at 1121); Roderick A Macdonald, Lessons of
Everyday Law (Montreal: McGill-Queen’s University Press, 2002); Daniel Jutras, “The Legal
Dimensions of Everyday Life” (2001) 16 CJLS 45; John Tomasi, “Can Feminism Be Liberated
from Governmentalism?” in Debra Satz & Rob Reich, eds, Toward a Humanist Justice: The
Political Philosophy of Susan Moller Okin (New York: Oxford University Press, 2009) 67;
Susan Sturm, “Activating Systemic Change Toward Full Participation: The Pivotal Role of
01_Cheng_36.indd 270 6/7/13 4:47 PM

statement, Fuller articulated this highly participatory vision of democracy:

[S]ome of the most important and complex systems of order we know have come
into existence, not by a single act of creation, but through the cumulative effect
of countless purposive directions of human effort. Examples of such systems are
language, economic markets, scientific theory, the common law, and on a homelier
plane, a footpath through a woodland…
All these systems may be viewed as systems of voting. In language, we vote for or
against “contact” as a verb by the way we use the word when we write or speak;
as the path is gradually traced out through the woodland, the heavily laden traveler
votes to go around the hill rather than over it, registering his vote in the footprints
he leaves behind.80
Participation also takes on normative implications for the design of social institu-
tions within Fuller’s interactionism.81 Fuller recognized that the more meaningful
the participation of citizens in decisions that affect the purposes and functioning
of social institutions, the more effective those institutions will be in responding
to their diverse and changing needs.82 This view is suggested in the following
comments he made about how a community may go about constructing its infra-
structure—in this case, a footpath through the woodland:
Imagine a newly settled rural community in which it is apparent that sooner or
later a path will be worn through a particular woodland. Suppose the community
decides to plan the path in advance. There would be definite advantages in this
Boundary Spanning Institutional Intermediaries” (2010) 54 St Louis ULJ 1117 (“Activism’s

center of gravity has shifted from a singular focus on federal government action to a multi-
level, public/private array of local, regional, national and international arenas,” at 1118).
81. For further discussion on the importance of participation in Fuller’s theory of law, see Melvin
Aron Eisenberg, “Participation, Responsiveness, and the Consultative Process: An Essay for
Lon Fuller” (1978) 92 Harv L Rev 410 [Eisenberg, “Participation”] (identifying in Fuller’s
work on adjudication a “Participation Thesis” that emphasizes the norms of “attention, ex-
planation and responsiveness”); Bone, supra note 24 at 1283, 1301-10 (noting that “Fuller
believed…the effort to secure a good social order was a never-ending process that required the
active participation of all citizens” and that he defined “the essence of adjudication in terms of
participation”); Macdonald, “Legislation,” supra note 16 at 293-300 (suggesting to understand
the different processes of social ordering Fuller proposed through the lens of process participa-
tion); see also infra note 88 and accompanying text.
82. Findings in the field of social psychology point to a direct relationship between the level of
participation by citizenry in a given institution and the effectiveness of that institution. See,
e.g., Tom R Tyler, Psychology and the Design of Legal Institutions (Nijmegen, Netherlands:
Wolf Legal Publishers, 2007), online: http://www.stanford.edu/~evwayne/workshop/Tyler_
paper.pdf (suggesting that motivation to comply and cooperate with the law is generated, in
part, by the level of participation afforded by a given institutional arrangement). As well, this
view of Fuller also echoes some of the chief concerns among those in the rapidly developing
field of deliberative democracy and consensus building, whose aim is to encourage an active
democratic participation in the deliberation, creation and implementation of social policy. See
generally Carrie Menkel-Meadow, “Introduction” in Carrie Menkel-Meadow, ed, Complex
Dispute Resolution: Volume II: Multi-Party Dispute Resolution, Democracy and Decision
Making (Ashgate, 2012), available at: http://ssrn.com/abstract= 2152688; Jane Mansbridge
et al, “Norms of Deliberation: An Inductive Study”, online: (2006) 2 J Public Deliberation
1 http://www.publicdeliberation.net/jpd/vol2/iss1/art7; Lawrence E Susskin & Jeffrey
Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes
(New York: Basic Books, 1987); David Kahane et al, eds, Deliberative Democracy in Practice
(Vancouver: UBC Press, 2010).
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272 Cheng
course. Experts could be brought in. A general view of the whole situation could
be obtained that would not be available to any individual wayfarer. What would be
lacking would be the contribution of countless small decisions by people actually
using the path, the decision, for example, of those whose footprints pulled the path
slightly to the east so that they might look at a field of daisies, or of those who de-
toured around a spot generally dry, but unaccountably wet in August.83
This simple example illustrates the contrast between centralization and an ap-
proach driven by grassroots participation. It suggests a more participatory ap-
proach to building social institutions and collective functioning as a way of en-
suring that our institutions can effectively reflect and respond to change and to
the pluralism that inevitably exists in society.
Not only did Fuller think that the participation of citizens would enhance the
effectiveness of social institutions, but that one of the most important purposes
of law and social institutions is to enable social actors to participate in decisions
that affect their lives. He explored extensively this enabling dimension of law
and social institutions in his writings about freedom, in which he pointed out the
inadequacy of a conception of freedom that equates freedom with the absence of
constraint.84 To Fuller, the effective exercise of human agency necessitates the
availability of social facilities that would give meaning and practical significance
to choices that individuals make.85 Individual choices and actions acquire their
social effect through the availability and constraint of participatory mechanisms.
As he explained,
in all significant areas of human action formal arrangements are required to make
choice effective. The choices a man can make without requiring collaborative so-
cial effort for their realization are trivial. Our more important choices are meaning-
less if there is no way of carrying them over into the larger social order on which
we are dependent for almost all our satisfactions. But to give social effect to indi-
vidual choice, some formal arrangement, some form of social order, is necessary.86
While Fuller acknowledged that social organizations inevitably impose con-

straints on individual actions, he thought that effective human actions—particu-
lar those that are interdependent with the actions of others—would be difficult
without such organizations. Social arrangements, then, constrain as well as en-
able individual action. The freedom to act effectively implies limits. He saw law
and social institutions as the “directive channel” that render individual decision-
making meaningful in a collective context. Different forms of social ordering
afford social actors different modes of participation, and call for a different
set of participatory ethics.87 Winston suggested that one reason why Fuller had

84. See Fuller, “Freedom,” supra note 52; Fuller, “Case Against Freedom,” supra note 47. See
also Kenneth I Winston, “Legislators and Liberty” (1994) 13 Law and Phil 389 [Winston,
“Legislators”]; Winston, “Revised Introduction,” supra note 35 at 16-23.
85. For a similar view, see Amartya Sen, Development as Freedom (New York: Anchor Books,
1999).
87. See Winston, “Ideal Element,” supra note 16 at 109-11; Macdonald, “Legislation,” supra note
16 at 293-300; David Luban, “Rediscovering Fuller’s Legal Ethics” in Witteveen & van der
01_Cheng_36.indd 272 6/7/13 4:47 PM

characterized each form of social ordering by the manner of participation it af-

fords people is because of his concern for “effective self-rule, both individual
and collective, and the various forms of order are the means by which that goal
is accomplished.”88 Related is Macdonald’s insight that Fuller regarded each
form of social ordering process as drawing on a different set of human capaci-
ties for agency.89
Fuller clearly attached great importance to the participation of the social actor
in the ordering of society. The value he placed on human agency cannot be over-
stated.90 Yet, beyond this belief in the human capacity to choose and be respon-
sible for one’s choices, Fuller was also profoundly optimistic about the loftiness
of human aspirations and the potential nobility of human beings. He touched on
this hopeful view of the human condition at the very end of The Morality of Law.
While acknowledging survival as “a necessary condition for every other human
achievement and satisfaction,” he rejected it as the “core and central element of
all human striving.”91 Instead, he saw “the objective of maintaining communica-
tion with our fellows” as a core and essential principle that “supports and infuses
all human aspiration.”92 To him, this capacity to communicate with others signi-
fies, as well as enables, the broader human desires for understanding, unity, and
even transcendence. He wrote,
man has been able to survive up to now because of his capacity for communica-
tion…. If in the future man succeeds in surviving his own powers of self-destruc-
tion, it will be because he can communicate and reach understanding with his fel-
lows. Finally, I doubt if most of us would regard as desirable survival into a kind
of vegetable existence in which we could make no meaningful contact with other
human beings.
Communication is something more than a means of staying alive. It is a way of

being alive. It is through communication that we inherit the achievements of past
human effort. The possibility of communication can reconcile us to the thought of
death by assuring us that what we achieve will enrich the lives of those to come.
How and when we accomplish communication with one another can expand or
contract the boundaries of life itself….
If I were asked, then, to discern one central indisputable principle of what may be
called substantive natural law—Natural Law with capital letters—I would find it
in the injunction: Open up, maintain, and preserve the integrity of the channels of
communication by which men convey to one another what they perceive, feel, and
desire. In this matter the morality of aspiration offers more than good counsel and
the challenge of excellence. It here speaks with the imperious voice we are accus-
tomed to hear from the morality of duty. And if men will listen, that voice, unlike
Burg, supra note 16 at 193 (analyzing the implications of Fuller’s ideas on the ethics of the
legal profession).
88. Winston, “Revised Introduction,” supra note 35 at 18; see also Winston, “Legislators,” supra
note 84 at 403.
89. Macdonald, “Legislation,” supra note 16 at 298.
90. See, e.g., Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller
(Oxford: Hart, 2012) (suggesting that the basis for Fuller’s claims about the internal morality
of law lies in the connection he perceived between the legal form and human agency).
91. Fuller, Morality, supra note 16 at 185.
92. Ibid.
01_Cheng_36.indd 273 6/7/13 4:47 PM

274 Cheng
that of the morality of duty, can be heard across the boundaries and through the
barriers that now separate men from one another.93
Admittedly, Fuller gave us only a glimpse of this deeper worldview. What he

did reveal, however, suggests a striking contrast to the bleak Hobbesian view of
human predicament as “solitary, poor, nasty, brutish, and short,” especially when
human beings are left unmediated in “the state of nature” without the protective,
yet controlling, hand of an absolute sovereign.94 To Fuller, the concern of law and
governance goes beyond providing a baseline for acceptable social behavior, and
includes the design of social institutions that safeguard the initiative of individu-
als and facilitate the actualization of a full range of positive human potentials.
This formulation regards the individual as a trust of society, and social institu-
tions as entrusted with a responsibility to enable individual development. Society
as a whole is also the beneficiary of the combined talents and capacities of its in-
dividual members. It points to a worldview that recognizes the interdependence
and interconnection between the individual and the collective. Institutional pow-
er in this enabling sense is captured by the notion of trusteeship—where power
is used to empower and assist, rather than to direct or control. Indeed, Fuller
alluded to the notion of trusteeship as a mindset required of those who design
and execute the work of social institutions, when he said: “[t]he only cure I see is
a sense of trusteeship on the part of those who design our social architecture.”95
IV. Interactionism in Fuller’s Thinking About Processes
Apart from offering a way of making sense of the workings of processes that
contribute to the “good order and social arrangement,” interactionism also rep-
resented a general attitude and orientation to Fuller. In this broader sense, in-
teractionism becomes more like a mindset than a thesis. Particularly revealing
of this interactionist mindset are three themes emphasized in his thinking about
processes: a) the interaction of means and ends, b) a functional approach to un-
derstanding process, and c) recognition of the importance of institutional design.
Interactionism appears in each of these themes as a kind of dialectic mindset that
integrates seemingly discontinuous concerns.96
93. Ibid at 185-86. Winston captured Fuller’s optimism in the following:

With his special focus on institutional structures that foster decency and fairness in
human relationships, Fuller was sufficiently confident in the good nature of men and
women to be optimistic about their ability to achieve a program of living together that
would be satisfactory for everyone. This meliorism infused his idea of democracy,
which presupposes that conflicts can be resolved by people’s talking with and under-
standing one another. When citizens engage each other and are compelled to explain
and justify their actions publicly, the effect, he thought, is generally to pull them to-
wards goodness, however that is conceived.
Winston, “Revised Introduction,” supra note 35 at 23.
94. Thomas Hobbes, Leviathan, Or The Matter, Forme, and Power of a Common-wealth
Ecclesiasticall and Civill, edited by Ian Shapiro (New Haven: Yale University Press, 2010) 78.
95. Winston, “Legislators,” supra note 84 at 417 (quoting Fuller).
96. See Teachout, “Soul,” supra note 3 at 1079 (observing Fuller’s “integrative” tendency and
that he “took to be his central jurisprudential task: to free us from the phony oppositions that
shackle inherited language and thought”).
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A. The Interaction of Means and Ends
Of the many process-related topics that Fuller worked on, his writing about the
relationship between process and goal—or as he called it, between “means and
ends”—reveals most explicitly his interactionist mindset.
In Fuller’s time, a heightened interest towards process began to emerge in
mainstream legal thought. Living in mid-20th century America, he was part of a
generation that witnessed the appearance of totalitarianism in Europe. Gripped
by the trauma of the second World War, this generation of American intellectuals
was preoccupied with the challenge of pluralism in democracy.97 The orientation
to process became a major response to this challenge. As legal historian Morton
Horwitz observed, “the single dominant theme in post-war American academic
legal thought is the effort to find a ‘morality of process’ independent of results.”98
The legal process school, led by H. Hart and A. M. Sacks99 sought to redefine the
focus of legal thought from that of substantive arrangements to that of process,
and to locate the basis of legitimate social ordering in “constitutive” procedural
arrangements rather than in a set of shared values.100
While Fuller had shown an affinity towards Hart and Sacks,101 his own think-
ing about the relationship between process and substantive ends is distinguished
by an interactionism that emphasizes the interdependence of the two, rather than
the primacy of one over the other. To him, processes and institutions represent
concrete patterns of social arrangement and interaction, and it is through these
concrete means of organizing our collective life that substantive social goals
acquire their practical form. He said, for instance, that,
no abstractly conceived end ever remains the same after it has been given flesh and
blood through some specific form of social implementation… [W]e may truthfully
say that a social end takes its “character and color” from the means by which it is
realized.102
But just as Fuller saw concrete institutional arrangements and processes of imple-
mentation as reflecting substantive goals, he also saw processes and institutions
97. E.g., Fuller, Quest, supra note 30 at 120-28. For an overview of postwar legal thought, see Carl
Landauer, “Deliberating Speed: Totalitarian Anxieties and Postwar Legal Thought” (2000) 12
Yale J L & Human 171; Morton J Horwitz, The Transformation of American Law 1870-1960:
The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992) 247-68.
98. Horwitz, supra note 97 at 253.
99. See Henry M Hart Jr & Albert M Sacks, The Legal Process: Basic Problems in the Making and
Application of Law, tentative edition (1958).
100. As Horwitz explained,
The Legal Process materials symbolize the moment in post-war history at which the
New Deal lawyers’ conception of the “common interest” came to be thoroughly trans-
formed from one of substance to one of procedure. Whether due to fear of conser-
vative attacks on the ideal of “collaborative, cooperative living” or anxiety that any
substantive conception of the common interest might degenerate into totalitarianism,
The Legal Process expresses the belief of a dominant post-war generation of elite le-
gal thinkers that “procedures … are obviously more fundamental than … substantive
arrangements….”
Horwitz, supra note 97 at 255.
101. See, e.g., Fuller, “Mediation,” supra note 6 at 144.
102. Fuller, “Means and Ends,” supra note 75 at 69.
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276 Cheng
as representing an active and organic force, capable of forming, defining, even

altering the values and attitudes of social actors. As he remarked,
[w]e should not conceive of an institution as a kind of conduit directing human en-
ergies toward some single destination. Nor can the figure be rescued by imagining
a multipurpose pipeline discharging its diverse contents through different outlets.
Instead we have to see an institution as an active thing, projecting itself into a
field of interacting forces, reshaping those forces in diverse ways and in varying
degrees. A social institution makes of human life itself something that it would not
otherwise have been.103
According to Fuller, inherent in processes and institutions is the capacity to exert

a civilizing influence on social life. Through the discharge of institutional roles
by individuals participating in these collective settings, habits and attitudes are
cultivated, which over time have a normalizing effect.104 Hence, Fuller under-
stood institutions to be both a reflection and a generative source of substantive
values: “[o]ur institutions are a part of the pattern of our lives. The task of per-
fecting them furnishes an outlet for the most vigorous of moral impulses.”105 In
sum, Fuller perceived substantive goals, and the processes and institutions that
implement those goals, to be in constant interaction, mutually influencing and
defined by the other.106
103. Fuller, “Means and Ends,” supra note 75 at 68. See also Fuller, “Human Purpose,” supra
note 53 at 75-76.
104. One example Fuller referred to is that of the legal profession:
We may say, for example, that the institutional role of the professional advocate is to
insure that the deciding tribunal will have a full and sympathetic understanding of his
client’s situation…. A necessity of his professional role, that of understanding fully his
opponent’s position and of anticipating his arguments, develops an attitude of mind
that carries over to questions arising outside the advocate’s practice. An institutional
license of partisanship becomes, then, the source of a habit of mind that can rise above
partisanship. Our best institutions are, I believe, pregnant with these side effects. It is
chiefly for this reason that I have so vigorously objected to the view that institutions
are mere inert conduits directing human energies, with much frictional waste en route,
toward certain desirable end-states.
Fuller, “Means and Ends,” supra note 75 at 72. See also Teachout, “Uncreated Conscience,”
supra note 54 (noting that “[b]y refocusing attention upon the purposes that have motivated
the courts in the development of the law,” Fuller invites “lawyers and legal scholars to join in
the activity of seeking to rationalize and harmonize inherited doctrine around a core of funda-
mental principles”; in this way, his purposive analysis serves to restore and carry forward “the
civilizing potential of the law” at 252).
106. Fuller’s concern for the interaction of means and ends has profound implications for the de-
velopment and direction of ADR. The complexity of this topic warrants a far more substantial
discussion than the scope of this essay would allow. Nonetheless, it is worth noting that some
commentators have suggested that this means-ends connection has yet to be fully appreciated
by proponents of ADR, see, e.g.,: Macdonald, “Legislation,” supra note 16 (“The failure of
the legal-process approach, especially in its contemporary garb of ADR theory, has proved to
be its relative lack of concern with ends. Current scholarly critiques are, in my view, likewise
heading for failure, but for the opposite reason—their relative disinterest in means. Both per-
spectives dissociate means and ends and take law to be pliable to all human purposes, errors
Fuller recognized in the 1930s and to which he constantly made allusion in his subsequent
writings,” at 281). There are, however, some instances of appreciation shown by some scholars
and practitioners of ADR of the idea that processes are not only a means to an end, but are
themselves an embodiment of values and substantive goals. One example would be to look
at discussions surrounding deliberative democracy and consensus building: see, e.g., supra
01_Cheng_36.indd 276 6/7/13 4:47 PM

The influence of this interactive notion of means and ends is discernible in

Fuller’s analysis about specific processes. For instance, Fuller flatly rejected the
idea that mediation can be defined by a set of specific ends. He referred to the fact
that mediation may be used as much to “terminate” a relationship as to “cement”
it, in spite of a common tendency to associate mediation with the object of fos-
tering social harmony.107 The mere fact that mediation may be directed towards
“diametrically opposed results,” was to Fuller sufficient argument “against our
being able to derive any general structure of the mediational process from some
identifiable goal shared by all mediational efforts.”108
More subtly, the interactive notion of means and ends also underlies Fuller’s
thinking about adjudication, particularly with respect to its relationship with the
rule of law.109 Adjudication, according to Fuller, is distinguished by the manner
of participation it requires of its participants, namely, that of decision-making
based on principles, and the presentation of proofs and rational arguments.110 It
represents an institutional commitment to rationality and principle. Arising from
this notion of adjudication, however, is the question of “what is the source of the
principle on the basis of which the case is to be argued and decided?”111 Or as
Fuller bluntly put it, “which comes first, courts or rules?”112 Despite the principle-
driven notion of adjudication that he proposed, Fuller did not think the existence
of a priori rules is pre-requisite to the operation of adjudication. Furthermore, he
explicitly rejected an instrumentalist view of adjudication, which would see the
court as merely applying principles that are given and fixed in discharging the
adjudicative function. As he said: “a court is not an inert mirror reflecting current
mores but an active participant in the enterprise of articulating the implications
of shared purposes.”113 Fuller’s view here is not continuous with the pre-existent,
autonomous, and unchanging conception of law typically found in the natural
law tradition, nor is it congruent with the realist insistence on the indeterminacy
of law and the extra-legal nature of adjudication. An interactionist logic, how-
ever, helps to make sense of what he proposed.
note 82. Another example refers to attempts made by some ADR proponents to situate their
discussion of process in a broader discourse about values and worldviews, explicitly connect-
ing their proposed processes to substantive perspectives on the perceived underlying causes of
conflicts: see, e.g., Bush & Folger, supra note 62 at 229-59 (suggesting that ignorance—with
respect to self and others—as a cause of conflict, and that a greater awareness of one’s own ef-
ficacy and openness to others would lead to a better resolution of conflict); Hossain B Danesh
& Roshan Danesh, “Has Conflict Resolution Grown Up? Toward a New Model of Decision
Making and Conflict Resolution”, online: (2002) 7 Int’l J Peace Stud 59 http://www.gmu.edu/
programs/icar/ijps/vol7_1/Danesh.html (suggesting “conflict as the absence of a condition of
unity” and “a conflict-free situation is, as such, not a void, but a substantive condition con-
structed around an alternate life-sustaining force”).
107. Fuller, “Mediation,” supra note 6 at 144-45. For an empirical study on how often media-
tion serves to “terminate” rather than “cement” a relationship, see Dwight Golann, “Is Legal
Mediation a Process of Repair—or Separation? An Empirical Study, and Its Implications”
(2002) 7 Harv Negot L Rev 301.
109. Fuller, “Adjudication,” supra note 8 at 113-18.
110. Ibid at 107.
111. Ibid at 114.
112. Ibid.
113. Ibid at 117.
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278 Cheng
Effective adjudication, as Fuller appeared to suggest, is possible even in the

absence of definite rules, so long as the social context surrounding the adju-
dicative process is characterized by at least some sense of interdependence or
shared purpose among its social actors.114 For Fuller, it is this sense of mutual-
ity and common interest that bind a society together and provide the ultimate
basis for law and enable its institutions to operate. Rather than controlling the
interaction between social actors, both the adjudicative process and the law
engendered by it, derive their sustenance from that interaction. At the same
time, they also facilitate that interaction by defining in concrete terms what the
common interests would require in a specific context, giving those interests a
fuller set of meanings. The bonds that knit a society together play an intermedi-
ary role in the relationship between adjudication and the rule of law. Both the
law and the adjudicative process aim to strengthen these bonds. However, any
increase in social cohesion also helps to generate a more conducive environ-
ment for adjudication to function and for the rule of law to flourish. Reflecting
this line of thought is Fuller’s discussion about how the rule of law may be
extended to international relations, particularly between two hostile nations.
He wrote:
…in extending the rule of law to international relations, law and community of
purpose must develop together. It is also apparent that a community of purpose
which consists simply of a shared desire to avoid reciprocal destruction is too
impoverished to furnish a proper basis for meaningful adjudication. Where the
only shared objective is the negative one of preventing a holocaust, there is noth-
ing that can make meaningful a process of decision that depends upon proofs and
reasoned arguments. It is of course conceivable that, moved by a desire to prevent
such a holocaust, two nations (say Russia and the United States) might submit a
dispute to arbitration, but they would do so in much the same spirit that they might
resort to a throw of the dice—unless there were perceived by both some body of
principle, however vague, that might control and give rationality to the decision.
Such a body of emergent principle would have to derive from one of the two basic
principles of order. In practice this would mean that it would have to derive from
relationships of reciprocity. Hence a desideratum of overriding importance in the
relations of Russia and the United States is the development of every possible
bond of reciprocity, every kind of useful exchange, between the two countries.
This is essential not merely to promote “understanding” and an atmosphere of
good will but to create a community of interest from which adjudication can draw
intellectual sustenance.115
Underlying the suggestion that the law and the community which the law aims
to serve need to be developed concurrently is an acknowledgement of the inter-
connectedness between substantive progress and the development of law and its
institutions.116 Reflected here, then, is the interactive notion of means and ends
discussed at the beginning of this section.
114. Ibid at 116-18.

115. Ibid at 117-18.
116. For a discussion of this issue, see Kevin E Davis & Michael J Trebilcock, “The Relationship
between Law and Development: Optimists versus Skeptics” (2008) 56 Am J Comp L 895.
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B. A Functional Analytical Approach
Fuller’s interactionist mindset is also evident in the functional approach he took

in many of his analyses of social ordering processes. As noted earlier, Fuller
assumed that human action is always imbued with purposefulness, prompting
him to question the social purpose, or function, that is fulfilled by a given legal
phenomenon, be it a substantive area of law, a legal institution, or a process of
social ordering.117 “What functions did that law serve among those who brought
it into being? Do the same functional needs exist in our society, and if so, how
are we ourselves meeting them?”118 These are among the questions most fre-
quently asked by Fuller in his studies of social ordering process. Embedded in
this functional analysis is a concern for how a given law or process interacts with
its social context, expressed in the following:
Implicit in all that has gone before in this essay is the view that law and its social
environment stand in a relation of reciprocal influence; any given form of law will
not only act upon, but be influenced and shaped by, the established forms of inter-
action that constitute its social milieu. This means that for a given social context
one form of law may be more appropriate than another, and that the attempt to
force a form of law upon a social environment uncongenial to it may miscarry with
damaging results.119
Fuller suggested that mindfulness of this interaction between the law and its con-
text allows us to identify those instances where a given form of law overextends
itself in an environment that cannot sustain its proper functioning; he likened this
to a situation where “the law projects itself… into a vacuum… where the stream
of life simply does not offer a sufficient substance to keep afloat even the most
modest demands of the law.”120
Fuller was by no means unique in adopting a functionalist methodology.
Functionalism as a mode of legal analysis emerged in the early 20th century as an
antidote against the then dominant formalist conceptualism that abstracted law
from its social context.121 Instead of analyzing law in a social vacuum, functional
analysis recognizes the influence of context on a given legal phenomenon and
the social consequences it engenders. This concern for the interaction between
law and its context reflects a broader anti-formalist current that appeared during
Fuller’s time, and is featured prominently in Fuller’s work. As Morton Horwitz
117. See, e.g., Lon L Fuller, “Consideration and Form” (1941) 41 Colum L Rev 799 at 800-06
(considering the functions performed by legal formalities in the area of contract law); Lon
L Fuller & William R Perdue Jr, “The Reliance Interest in Contract Damages I” (1936) 46
Yale LJ 52 at 53-57 (analyzing the purposes pursued in awarding contract damages); Fuller,
“Mediation,” supra note 6 at 148 (proposing to analyze how the need for and the functions
performed by a mediator are affected by the characteristics of the collective bargaining situa-
tion); Fuller, “Role of Contract,” supra note 9 at 188 (asking “what specific functions contract
performs in the ordering of human relations generally”).
119. Ibid at 27.
120. Fuller, “Precarious,” supra note 34 at 530.
121. See, e.g., Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35
Colum L Rev 809.
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280 Cheng
remarked, “Fuller’s strategy of disaggregating and contextualizing…, as well as

the consequentialist policy orientation he brought…, were part of a generational
revolt against formalism.”122
One illustration of how Fuller encapsulated his interactionist concern in a
functional analysis appears in his analysis of adjudication, where he explored the
(in)appropriateness of using arbitration to solve polycentric tasks, such as setting
wages. While he observed that such use of arbitration tends to erode the character
of arbitration as decision-making based on rationality, he thought such use poses
less of a threat to the integrity of the adjudicative form in times of emergency.123
In other words, Fuller was sensitive to the fact that the limits of adjudication,
instead of being fixed, are context dependent.
Another example is Fuller’s analysis of mediation, where he proposed to de-
rive a sense of what mediation is “by examining in detail the functions mediation
can perform in a specific illustrative situation.”124 He then analyzed the “forms
and functions” of mediation in three examples: collective bargaining between
employee and employer, marital disputes, and water allocation decisions by gov-
ernment. The question of what functions mediation may serve was asked again
and again in each of these examples.
By identifying the different functions of mediation in various contexts, Fuller
was attempting to understand how mediation may respond to the needs of its
context. The functions of mediation he identified were more illustrative than pre-
scriptive.125 The broader message to be gleaned from this functional analysis is a
vision of mediation that sees it as a dynamic and responsive force, emerging out
of the interaction of its participants. Fuller thought “the central quality of media-
tion” is its “capacity to reorient the parties toward each other, not by imposing
rules on them, but by helping them to achieve a new and shared perception of
their relationship, a perception that will redirect their attitudes and dispositions
toward one another.” But he perceived the practical manifestation of this qual-
ity to be entirely context specific. Rather than being predetermined or fixed, he
recognized the function that mediation may serve as being contingent upon the
demands and opportunities presented by a given situation.
Capturing this interactive dynamic between mediation and its context are the
following comments by Fuller on the source of a mediator’s authority:
Those whose minds are intent on the structure of authority rather than on an analy-
sis of social processes, are apt to ask of the mediator not What does he do? but
Whence comes his capacity or authority to arrange the affairs of others? In this
mood the inquiry is likely to be whether his power rests on a tacit contract with the
affected parties, or derives from some charismatic qualities possessed by the me-
diator himself, or [whether it] should be attributed to some role or office assigned
to him by tradition or higher authority. Now an inquiry along these lines is certainly
not meaningless, but taking it too seriously may lead us to ignore the fact that the
122. Horwitz, supra note 97 at 184.

125. Fuller often used examples to develop a certain proposition, rather than explicating it di-
rectly. For a similar observation, see Eisenberg, “Participation,” supra note 81 at 423.
01_Cheng_36.indd 280 6/7/13 4:47 PM

mediator’s “power” may largely derive from the simple fact that he is there and that
his help is badly needed.126
Further, he said,
Like everyone else concerned with the mediational process, the mediator needs to
reflect on his proper role and on the sources of his power. Mediators often pride
themselves, and receive much newspaper publicity, for solving “tough” cases. But
sometimes what makes the cases “tough” lies in the high stakes involved and the
strong compulsion both parties are under to reach agreement. When he “solves”
such a case, the mediator needs to reflect that his powers may derive as much
from the urgency of the situation as from any specific gifts of his. He may usefully
recall Schelling’s amateur who volunteers to call the dances at a square dance; the
couples may follow his calls, not because the calls are especially apt, but because
if they are not followed the dance cannot go on.127
According to Fuller, mediation derives its order-generating capacity from the

situation in which it operates, and the function of a mediator is driven by the cir-
cumstance of the parties. A mediator’s influence, in other words, is both derived
from and exerted through the interaction that takes place among all the process
participants.128
C. The Importance of Institutional Design
Fuller once remarked that, “the capacity to devise institutions and procedures ad-
equate to its problems is perhaps the chief mark of a civilized society,” and “that
capacity is in any event the chief instrument by which civilization can hope to
survive in a radically changing world.”129 His concern for institutional design130
is another area in which the influence of his interactionist mindset is palpable.
For Fuller, institutional design represented the interface between desirable
ends and available means. It is a process that involves reflecting upon the ends
desired in a given situation, thinking about how, and to what extent, these ends
can be achieved by the limited means available, and further considering or ad-
justing the original goal in light of understanding reached so far. In a broad sense,
institutional design embodies a dynamic interaction between reflection and ex-
perience, rationality and volition, with each continuously imposing on and re-
sponding to the other. On the one hand, in designing institutions, the human
126. Fuller, “Mediation,” supra note 6 at 150-51.

127. Ibid at 159.
128. These ideas are echoed in the development of mediation models that emphasize the inter-
actional dimension of mediation. See Robert A Baruch Bush, “Staying in Orbit, or Breaking
Free: The Relationship of Mediation to the Courts Over Four Decades” (2008) 84 NDL Rev
705 at 743-48, 756-62 [Bush, “Orbit”] (reviewing four models of mediation that focus on par-
ties’ interaction instead of settlement).
130. See, e.g., ibid at 170-81 (relating legal morality to the issue of institutional design); Fuller,
“Means and Ends,” supra note 75 at 66-72 (examining certain assumptions about the means-
ends relationship in social architecture and their implications for institutional design); Fuller,
“Architect,” supra note 76 (considering the role of the lawyer as designer of social institutions).
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282 Cheng
will imposes its ideals upon social reality and wrestles with the constraints of
the latter. In this sense, institutional design is creative and experimental. On the
other hand, in order to be effective, institutional design also demands reflection
on existing conceptions of means and ends, modifying such prior conceptions as
necessary in light of the experience with a particular design. Here, institutional
design is also educative and rational. Because of these creative and educative
qualities, institutional design represents a vehicle for change that enables society
to progress and develop at both substantive and procedural levels.131
In the same way that sculpture is given form in a chosen material, the pursuit
of substantive goals takes shape in concrete social practices and arrangements.
Substantive social change, as Fuller recognized, is inseparable from the concern
of institutional design and involves choices not only of ends, but also of means.
In his view, lack of concern for the means of social ordering has led to distortions
in our understanding of social change and its possibility. Such distortions, he
explained, betray “on the one hand, a belief that society is a thing wholly man-
made that may be shaped in any direction desired, on the other, a determinism
denying any creative role to the human will,” and signifying a failure to “recog-
nize the middle ground where man creates within the limits of compulsions he
cannot remove but must understand.”132
As if anticipating that dispute system design will one day emerge as a rapidly
developing field of practice,133 Fuller regarded the lawyer as an “architect of so-
cial structure,”134 and sought to introduce into legal education a way of “orienting
131. Implicit in Fuller’s ideas about institutional design is his belief about the progressive charac-
ter of institution and society. He once wrote:
I find congenial many parts of the philosophy of Burke, which conceives society to be
founded on institutions and conventions which are not wholly rational, and which con-
ceives of progress as a gradual improvement of those institutions and conventions in
the direction of greater rationality. This view emphasizes that our present state of soci-
ety, however imperfect, represents an acquisition, an encroachment of reason on chaos.
Lon L Fuller, “Letter from Lon L Fuller to Thomas Reed Powell” in Winston, supra note 6
at 335-36. See also Fuller, “Anatomy,” supra note 16 at 71-82 (referring to a developmental
account of the role of implicit law and made law in legal history). For a discussion that relates
Fuller’s ideas of institutional design to a developmental conception of institution and society,
see Karol Soltan, “A Social Science That Does Not Exist” in Witteveen & van der Burg, supra
note 16 at 387.
132. Fuller, “Architect,” supra note 76 at 291.
133. See, e.g., Lisa Bingham, “Designing Justice: Legal Institutions and Other Systems for
Managing Conflict” (2008) 24 Ohio St J on Disp Resol 1 (“[l]awyering has changed. We
no longer just advise and represent clients in courts and administrative agencies; we design
justice…[t]he historical trend is toward a conscious and analytic, even a scientific approach
to designing systems to manage conflict among citizens, stakeholders, interest groups, and
public, private, and non-profit organizations,” at 1-2). For an overview of the field of dispute
system design, see generally William L Ury, Jeanne M Brett & Stephen B Goldberg, Getting
Disputes Resolved: Designing Systems to Cut the Costs of Conflict (San Francisco: Jossey-
Bass, 1988); Carthy A Costantino, “Second Generation Organizational Conflict Management
Systems Design: A Practitioner’s Perspective on Emerging Issues” (2009) 14 Harv Negot L
Rev 81; Amy J Cohen, “Dispute Systems Design, Neoliberalism, and the Problem of Scale”
(2009) 14 Harv Negot L Rev 51 (a critical review of dispute system design, using the analytic
device of scale to point to equality concerns); Carrie Menkel-Meadow, “Are There Systemic
Ethics Issues in Dispute System Design—And What We Should [Not] Do About It: Lessons
from International and Domestic Fronts” (2009) 14 Harv Negot L Rev 195.
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students towards ‘legal planning,’ that is, the job of giving legal form to desired
goals and policies.”135 Referring to one of the grandest examples of social archi-
tecture, the creation of America, he gave the following account:
One familiar with the early history of this country would naturally suppose that
an active interest in the order-creating process would be a prominent character-
istic of American legal scholarship. The draftsmen of our national constitution
accomplished something that had been (and still often is) declared to be impos-
sible—they brought a nation into existence and gave it a form of government that
was at once new and workable. During the period Pound calls the Formative Era
of our law there was a lively debate whether we should adopt the French system
of comprehensive codification or allow our rules of law to develop through prec-
edents after the English model. Until about the middle of the nineteenth century
almost everything written by lawyers was filled with the spirit of choice, not sim-
ply among substantive rules of law, but among ways of law-making and among
forms of government, great and small. Writing in 1859, John Stuart Mill could
still describe Americans as being expert “in every kind of civil business; let them
be left without a government, every body of Americans is able to improvise one,
and to carry on that or any other public business with a sufficient amount of intel-
ligence, order and decisions.” Though Mill does not say so, it was of course pri-
marily the American lawyer who supplied this special competence in organizing
and carrying on “public business.” Gradually, however, this creative spirit faded.
By the 1870s the lawyer was no longer thought of as having any special concern
with the order-creating process.136
The continuing demands of social life suggested to Fuller that, beyond the
formative period of a given society, there is a continuing need for choices to
be made about means and ends; and the trend of growth in regulatory control
by government meant to Fuller an expanding scope for institutional design.137
Furthermore, he thought the domain of institutional design extends far beyond
the affairs of government and exists even in the most mundane situations, such
as “working out a contract for a two years’ supply of paper towels for the rest
rooms of a chain of service stations.”138 This is because every legal instrument
was to him “a kind of constitution establishing a framework for the future deal-
ings of the affected parties.”139
Fuller recognized that in order to create effective institutional design, knowl-
edge is essential. Thus, he was convinced that an aspect of institutional design
135. Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 305.

136. Fuller, “Architect,” supra note 76 at 289-90. The making of a constitution is indeed an excel-
lent example, demonstrating the interlocking nature of means and ends. While Fuller empha-
sized in this quote the creative spirit embodied by the making of the US Constitution, others
have explored the procedural dimension of this creativity by looking at the impact different
deliberative procedures have on a resulting constitution. See, e.g., Jon Elster, “Strategic Uses
of Argument” in Kenneth J Arrow et al, eds, Barriers To Conflict Resolution (New York: WW
Norton & Company, 1995) 236 (exploring the implications of public versus secret delibera-
tive mechanisms used in the constitution making processes of France and America); Dana
Lansky, “Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the Constitution
Convention of 1787” (2000) 5 Harv Negot L Rev 279 (analyzing the Constitutional Convention
of 1787 through a modern-day multi-party negotiation framework).
137. Fuller, Morality of Law, supra note 16 at 175-76.
139. Ibid.
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284 Cheng
involves tapping into and testing our current understanding of social ordering and
its mechanisms. Fuller’s eunomics project—with its analysis of the forms and
functions of different social ordering processes and their operating principles—
was intended to get a clearer grasp of the different types of ordering mechanisms
and their respective constraints and enable more effective designs of social ar-
chitecture. The lack of understanding about and concern for the means of social
ordering, in Fuller’s view, has led to the adoption of institutions or procedures
that are ineffective in treating the ills they were supposed to remedy. He offered
the criminalization of drug addiction as an example:
There is much reason to believe that our approach to the problem of drug addic-
tion is wrong, and that more would be achieved through medical and rehabilitative
measures than through the criminal law. But such a program of reform, if it is to
succeed, will have to create the institutions necessary for its realization. It cannot
project itself incongruously into institutions created with quite different aims in
mind; you cannot make a jail a hospital by calling it that or make a criminal trial a
medical examination by pretending that it is.140
Similarly, he lamented the tendency of lawyers to indiscriminately “judicial-

ize” every governmental function,141 or to resort to adjudicative procedures as
institutional safeguards, without considering other supervisory models such as
“the French Conseil d’État, the Scandinavian ombudsman, the British Council
on Tribunals.”142 Cautioning against the downside risk of social engineering, he
suggested that “[t]he law has always to weigh against the advantages of con-
forming to life, the advantages of reshaping and clarifying life, bearing always in
mind that its attempts to reshape life may miscarry, or may cost more than they
achieve.”143
As mentioned at the beginning of this essay, Fuller’s analysis of the forms,
functions and limits of different processes, as exemplified by his analysis of me-
diation, adjudication and arbitration, has received special attention in ADR dis-
course. His observation that each process of social ordering functions optimally
within a specific zone of competence and requires of its participants a unique
set of participatory ethics is widely accepted as having a profound impact on
the development of ADR thought. Less discussed in ADR discourse, however,
is the fact that Fuller saw his analysis of specific processes as part of a broader
enterprise of institutional design, which is at once procedural and substantive,
creative and educative, and which integrates the human capacity to exercise will
with the capacity for reason. Roderick A. Macdonald has pointed out that the
widely accepted injunction “let the forum fit the fuss”—taken to heart by many
ADR proponents—reflects a misunderstanding of Fuller’s purpose in elaborat-
ing the different processes of social ordering.144 As Macdonald explained, “[t]he

143. Lon L Fuller, “American Legal Realism” (1934) 82 U Pa L Rev 429 at 460 [Fuller, “Realism”].
01_Cheng_36.indd 284 6/7/13 4:47 PM

significance of attending to the procedural elements of each of these institutions

is that it provides a framework within which we are liberated to conceive and
to reconceive how we want to elaborate the law that structures our normative
interactions with each other.”145 In Macdonald’s view, implicit in Fuller’s effort
to elaborate a taxonomy of social ordering processes and their corresponding
modes of participation, is a desire to recognize and realize the diverse human
capacities for agency, as well as the plurality of ambitions and values to which
human beings aspire.146
When the taxonomic analysis of processes that Fuller offered is severed from
the creative spirit of institutional design, his ideas become diluted. Often referred
to in ADR discourse is Fuller’s observation that polycentric problems are un-
suited for adjudication. Yet, seldom referred to is his related insight that “when
an attempt is made to deal by adjudicative forms with a problem that is essen-
tially polycentric,” an arbiter “may reformulate the problem so as to make it
amenable to solution through adjudicative procedures.”147 In other words, Fuller
highlighted that knowledge about the limits of adjudicative process enables those
charged with the task of solving a polycentric problem a higher chance of suc-
cess by either recasting the problem into a form more workable for adjudication
or substituting adjudication with a different process. This more nuanced point
about the relationship between process knowledge and process design is missed.
Moreover, neglect of this idea tends to lessen concern for the relationship be-
tween process and the substantive creation of a dispute148—what others referred
to as the “naming, blaming and claiming” of disputes.149
There is also a tendency within ADR discourse to perceive Fuller’s ideas as
unduly fixed, as a result of the preoccupation by ADR scholars and practitio-
ners with the more technical aspects of his process analysis. It is worth not-
ing that, according to Winston, “Fuller was apparently never convinced that the
[Adjudication] essay was sufficiently polished for publication,”150 despite the
fact that it had undergone multiple revisions. Knowledge of the means of social
ordering, like all human knowledge, is inevitably provisional.151 While Fuller
145. Ibid at 299-300.

146. Macdonald further pointed out that the different processes of social ordering “have a dif-
ferent place in different societies depending on the relative priority of social goals and val-
ues.” Ibid at 296. This sensitivity to the plurality of human ambitions, values and capacities
for agency embodies one of the central themes in discussions about the cultural dimension
of conflict resolution. See generally Michelle LeBaron, Bridging Cultural Conflicts: A New
Approach for a Changing World (San Francisco: Jossey-Bass, 2003); John Paul Lederach,
Preparing for Peace: Conflict Transformation Across Cultures (Syracuse: Syracuse University
Press, 1995); David Kahane, “Dispute Resolution and the Politics of Cultural Generalization”
(2003) 19 Negotiation J 5.
149. William LF Felstiner, Richard L Abel & Austin Sarat, “Emergence and Transformation of
Disputes: Naming, Blaming, Claiming…” (1980) 15 Law & Soc’y Rev 631.
150. Kenneth I Winston, “Editor’s Note” in Winston, supra note 6 at 101.
151. See, e.g., Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics,
and Praxis (Philadelphia: University of Pennsylvania Press, 1983) (highlighting the role of
interpretation in social sciences); Thomas S Kuhn, The Structure of Scientific Revolutions, 2d
ed (Chicago: University of Chicago Press, 1970) (explaining the historically contingent nature
of scientific discovery).
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286 Cheng
sought to discern the operating principles that govern different forms of social
ordering, he was mindful that such perceived principles are subject to modifica-
tion or refutation by further consideration and experience.152 In the following
statement, for instance, he acknowledged this provisional quality of his analysis
about adjudication:
The ideals that keep a social institution alive and functioning are never perceived
with complete clarity, so that even if there is no failure of good intentions, the exis-
tent institution will never be quite what it might have been had it been supported by
a clearer insight into its guiding principles… Accordingly I shall have to begin our
inquiry with an attempt to define “true adjudication,” or adjudication as it might
be if the ideals that support it were fully realized. In doing so I shall of necessity
be describing something that never fully exists. Yet it is only with the aid of this
nonexistent model that we can pass intelligent judgment on the accomplishments
of adjudication as it actually is. Indeed, it is only with the aid of that model that we
can distinguish adjudication as an existent institution from other social institutions
and procedures by which decisions may be reached.153
As the above statement indicates, Fuller saw the purpose of exploring the nature
of different processes as not so much about obtaining a true or complete defini-
tion of a given process, but to encourage architects of social structure to be more
mindful of the advantages and dangers associated with different processes when
creating or assessing an institutional design.
Fuller underscored the developing nature of process knowledge when he ob-
served that social ordering processes tend to move away from more “mixed”
and “ambiguous” forms found in early societies, and become more distinct and
separated over time.154 He saw in this greater differentiation a greater aware-
ness of the diversity of roles that social institutions may serve, and a greater
capacity to discern a broad range of ordering mechanisms. This broadening of
consciousness resembles the kind of “philosophical” approach that Fuller recom-
mended for lawyers. By “philosophical,” he meant, first and foremost, an open-
mindedness that continuously searches for “an enlargement of view, and opening
up of areas of meaning that have been lost from sight,” rather than a form of
152. See Teachout, “Soul,” supra note 3 at 1096-1100 (observing Fuller’s “openness to experi-
ence” and concern for “developing a jurisprudence responsive to a ‘complex and moving real-
ity’”). Also illustrating this point is Fuller’s understanding of the changing quality of concept
in his writings about legal realism. He suggested that concepts should be understood more as a
dynamic “activity” rather than a static “thing.” He referred to this dynamic notion of concepts
in explaining his disagreement with the realists’ skepticism toward rules, which are made up of
concepts. As he explained, both the realists and the conceptualists, whose formalistic approach
to law the realists rejected, had assumed a “hypostatization of the ‘concept’”—the conceptu-
alists assumed that the implication of a concept is to be derived from its inner, unchanging
core, and the realists denied concepts as having any basis in reality unless they can connote
meanings that are finite and fixed. Rejecting both of these understandings, Fuller emphasized
the developing character of concepts as they are derived through an evolving mental process
that interacts with experience. See Fuller, “Realism,” supra note 143 at 443-47. This aspect of
Fuller’s thinking, as Winston suggested, owes a great deal to the influence of pragmatism: see
Winston, “Is/Ought,” supra note 33; Winston, “Ideal Element,” supra note 16.
153. Fuller, “Adjudication,” supra note 8 at 104-05.
154. Fuller, “Mediation,” supra note 6 at 171-72.
01_Cheng_36.indd 286 6/7/13 4:47 PM

“position-taking” that clings to “principle that will exclude and render irrelevant
the disturbing parts of reality.”155
This broadening of process knowledge provides, in turn, a basis for conceiv-
ing and experimenting with new approaches to institutional design. For example,
consider Fuller’s discussion of the “meditative element” that exists in the ad-
ministrative functioning of a watermaster. He was of the view that the task of
water allocation among competing users was unsuited to mediation (and adju-
dication), in part because of the polycentric character of the task. Nonetheless,
he thought that a “conscientious watermaster” ought to adopt a mindset that is
“mediative”—or “open-mindedly consultative”—in discharging his administra-
tive responsibility.156 Here, mediation is thought of more as a mindset rather than
a decision-making process, and awareness of the form and function of media-
tion represented a type of conceptual resource that could be drawn on to devise
responses to situations that are beyond the perceived jurisdiction of mediation.
This captures what Macdonald referred to as the “pedagogic” aspect of process-
es.157 The different forms of social ordering educate by means of the civilizing
influence derived from participating in them and the growing process conscious-
ness obtained by analyzing them. In sum, knowledge of existing modes of social
ordering provides a basis for developing new means of ordering, the efficacy
of which is tested in turn by experience and scrutinized by further analysis.
Institutional design, thus, represents a continuous process of learning through
creating, based on what has been learned.
V. Applying Fuller’s Interactionism: Process Pluralism in ADR
What relevance, if any, does Fuller’s interactionism have on the contemporary

ADR field? While a comprehensive review of this issue is beyond the scope of
the present paper, one example might be to look at how it can advance our think-
ing about process pluralism—which many regard as at the crux of what ADR
stands for,158 and the acceptance of which some view as a driving force behind
the current ascendance of ADR.159 As John Lande explains, process pluralism in
the ADR context refers to a “belief in the legitimacy of a multiplicity of disputing
mechanisms,” as well as an awareness and acceptance of a diversity of dispute
resolution “values,” “norms,” “outcomes,” “roles,” and “styles.”160
Unfortunately, in typical ADR discourse, process pluralism reflects more of a
fragmented plurality, rather than a pluralism that seeks to understand and bridge
155. See Lon L Fuller, Philosophy for the Practicing Lawyer in Winston, supra note 6 at 306-09.
157. Macdonald, “Legislation,” supra note 16 at 299, 310.
158. See, e.g., Menkel-Meadow, “Peace,” supra note 5 (regarding process pluralism as a core
value that underlies the development of ADR); Robert C Bordone, “Fitting the Ethics to the
Forum: A Proposal for Process-Enabling Ethical Codes” (2005) 21 Ohio St J Disp Resol 1
at 5-8 (linking the development of ADR with the emergence of process pluralism). See also
Bush, “Jurisdictional,” supra note 11 at 924-29 (using the term “process pluralism” to describe
the emergence of dispute resolution processes alternative to court).
159. Lande, supra note 4.
160. Ibid at 149-50.
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288 Cheng
lines of difference. Proponents and critics put forth competing claims about the
threats or promises of ADR process.161 Even among ADR proponents, there are
deep disagreements about the goals of different ADR processes and how they can
be best realized through different ways of conducting the process.162 Ironically,
even though resolving disputes is the very purpose of ADR, current explorations
of process pluralism are fraught with conflicts and polemics.163 Although some
within the ADR field have called for a more integrative approach to understand-
ing process pluralism,164 response to this call has been scant.
One example of this fragmented plurality concerns the relationship of media-
tion to the courts. There are at least two competing visions of this relationship.
As Robert A. Baruch Bush explained, one sees mediation as a “faithful ‘servant’
of the court system, performing functions vital to the courts,” while the other
sees mediation as its own master seeking to “‘break free’ and establish itself as a
separate and distinct conflict-resolution process, performing very different func-
tions that are vital to society, but unrelated to judicial administration per se.”165
The former perspective tends to be settlement focused, which in turn attracts
mediator-directed, top-down intervention practices that are similar in character
to court processes. As this vision of mediation gains currency among courts and
161. For examples in support of ADR see Warren E Burger, “Isn’t There a Better Way?” (1982)
68 ABA J 274; Menkel-Meadow, “Whose Dispute,” supra note 62; Ury et al, supra note 133;
Bush & Folger, supra note 62. Contra Owen M Fiss, “Against Settlement” (1984) 93 Yale L
J 1073; Richard Delgado et al, “Fairness and Formality: Minimizing the Risk of Prejudice
in Alternative Dispute Resolution” (1985) Wis L Rev 1359; Trina Grillo, “The Mediation
Alternative: Process Dangers for Women” (1991) 100 Yale L J 1545. For a more recent update
of the debate about ADR, see Symposium, “Against Settlement: Twenty-Five Years Later”
(2009) 78 Fordham L Rev 1117.
162. See, e.g., Leonard L Riskin, “Understanding Mediators’ Orientations, Strategies, and
Techniques: A Grid for the Perplexed” (1996) 1 Harv Negot L Rev 7 (outlining different me-
diator styles and roles); Carrie Menkel-Meadow, “When Dispute Resolution Begets Disputes
of its Own: Conflicts Among Dispute Professionals” (1997) 44 UCLA L Rev 1871 (referring
to debates regarding mediation styles outlined in Riskin’s grid); Jeffrey W Stempel, “The
Inevitability of the Eclectic: Liberating ADR from Ideology” (2000) J Disp Resol 247 (ad-
vocating a pluralist or flexible understanding of mediation); Bush, “Orbit,” supra note 128
(referring to competing visions of the relationship of mediation to the courts).
163. E.g., Robert J Condlin, “‘Every Day and in Every Way We Are All Becoming Meta and
Meta:’ or How Communitarian Bargaining Theory Conquered the World (of Bargaining
Theory)” (2008) 23 Ohio St J Disp Resol 231 (referring to ADR critiques of adversarial bar-
gaining as “combative, exclusivist, and manipulative, both in tone and content,” and that “they
exploit ignorance and insecurity as often as they identify and correct analytical error,” and they
“look like self-interested strategies for competing successfully for academic stature and influ-
ence,” at 234). See also Deborah R Hensler, “ADR Research at the Crossroads” (2000) J Disp
Resol 71 (noting hostility and backlash against an empirical research that found no evidence
of statistically significant differences in time or cost saving between cases referred to court
ADR and those proceeded without ADR, as well as “a growing tendency to exclude scholars
with divergent perspectives from scholarly conferences and other academic interchanges,” at
74-76).
164. E.g., Cheryl A Picard, “Exploring an Integrative Framework for Understanding Mediation”
(2004) 21 Conflict Resol Q 295 (suggesting that “the mediation community can no longer con-
tinue along the road of binary thinking. Instead, it is challenged to find a more integral, more
holistic and more inclusive view of its work” at 309); Bush, “Jurisdictional,” supra note 11 at
926 (pointing out that “process pluralism” does not translate into pluralism in terms of social
goals, which cannot be realized without a more integrative framework).
165. Bush, “Orbit,” supra note 128 at 706.
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others concerned with civil justice reform, concerns of fairness and justice in
settlement-oriented mediation practices also increase and intensify. On the other
hand, the latter perspective of mediation—driven by the aspirations of grass-
roots empowerment and self-determination—resists focusing on settlement and
emphasizes practices that are party driven. These divergent visions of mediation
and its relationship to courts are examples of ADR’s often disjointed engagement
with process pluralism.
Fuller’s interactionism may be used in at least two ways to help develop ap-
proaches to process pluralism that are more integrative and less fragmentary. The
first relates to his concern for the interaction between process and context.166 The
context of a given process is constituted, in part, by the overlapping workings
of a multitude of other processes. An interactionist approach that is concerned
with how a process interacts with its context would situate that process within
the functioning of other processes. Instead of merely recognizing or advocating
process diversity, this approach would seek further to identify and understand
the interconnection of different processes. Fuller himself often paid close atten-
tion to how one process relates to or complements others,167 and suggested that
a study of an institution take into account the context provided by other institu-
tions: “Does this institution, in a context of other institutions, create a pattern of
living that is satisfying and worthy of man’s capacities?”168
Although it has yet to be broadly cultivated as a way for ADR to engage with
process pluralism, this emphasis on the interplay of different processes does oc-
cur in existing ADR discourse. One example is a discussion that explores how the
“shadow of the law” touches processes that take place outside the court system.
Mnookin and Kornhauser’s analysis on how divorce law and legal proceedings
influence bargaining and negotiations outside the courtroom is a classic illustra-
tion.169 In showing how the law works as a baseline that affects the bargaining
endowment of different parties, their analysis highlights the interconnection be-
tween legal and ADR processes. Many others have also explored this relationship
in the reverse direction, focusing on how the growth of ADR affects the formal
justice system and its practices.170 Other examples would be works that explore
166. See discussion supra Part IV.B.

167. See supra note 15 and accompanying text.
169. Robert H Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case
of Divorce” (1979) 88 Yale L J 950. See also Ray D Madoff, “Lurking in the Shadow: The
Unseen Hand of Doctrine in Dispute Resolution” (2002) 76 S Cal L Rev 161 (building on
Mnookin and Kornhauser’s thesis and suggesting that substantive legal doctrines play an im-
portant role in influencing parties’ decision to use an ADR process). But see Robert J Condlin,
“Bargaining without Law” (2011-2012) 56 NYL Sch L Rev 281 (observing an increasing ero-
sion of substantive legal argument in dispute bargaining practices).
170. See, e.g., Julie MacFarlane, The New Lawyer: How Settlement Is Transforming the Practice
of Law (Vancouver: UBC Press, 2008); Marc Galanter, “A World Without Trials?” (2006) J
Disp Resol 7 (showing a pattern of decline in trials in recent decades); Louise Otis & Eric H
Reiter, “Mediation by Judges: A New Phenomenon in the Transformation of Justice” (2006)
6 Pepperdine Dispute Resolution L J 351; Joanne Scott & Susan Sturm, “Courts as Catalysts:
Re-thinking the Judicial Role in New Governance” (2007) 13 Colum J Eur L 565; John Lande,
“How Will Lawyering and Mediation Practices Transform Each Other?” (1997) 24 Fla St UL
Rev 839; Robert A Baruch Bush, “Alternative Futures: Imagining How ADR May Affect the
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290 Cheng
the basic interdependence between the rule of law and ADR. For instance, some
have observed that in regions where rule of law is weak, the proper development
of ADR requires a concomitant strengthening of the law.171 Also, as the use of ADR
becomes more widespread, protection against unfair or improper ADR practices is
increasingly being sought in legal terms. Issues relating to court enforcement of
mediated agreements172 or judicial review of arbitration award173offer yet more ex-
amples highlighting the need to consider the intersection and complementarity of
diverse processes, if process pluralism is to be fully and systematically embraced.
Another way to draw on Fuller’s interactionism in order to develop a more
integrative approach to process pluralism would be to take seriously his concern
for institutional design and the spirit of innovation and learning that it entails.174
Implicit in the notion of institutional design is the understanding that social insti-
tutions and processes are constructed rather than predetermined. Crucial to their
innovation and refinement, however, is a dynamic process of learning, which
requires a willingness to reflect on experience, consider differing viewpoints,
and modify prior conceptions. To the extent that they help to broaden our think-
ing about process by enlarging the scope of consideration, diverse ideas can spur
experimentation with institutional design and further advance the growth and
development of social institutions and processes. Diversity in this developmen-
tal framework becomes a driver of growth. Hence, one way to help promote a
more integrative engagement with process pluralism would be to emphasize the
importance of research175 and innovation176 in ADR.
Court System in Coming Decades” (1996) 15 Rev Litig 455 [Bush, “Alternative”]; Judith
Resnik, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication”
(1995) 10 Ohio St J Disp Resol 211.
171. See, e.g., Mariana Hernández Crespo, “A Systemic Perspective of ADR in Latin America:
Enhancing the Shadow of the Law Through Citizen Participation” (2008) 10 Cardozo J Con
Resol 91 (arguing for strengthening the rule of law in order for ADR to function as a true
alternative in the Latin American context; also suggesting that private participatory consensus-
building processes may help to transform social norms and strengthen the foundation for the
rule of law); Cynthia Alkon, “Lost in Translation: Can Exporting ADR Harm Rule of Law
Development?” (2011) J Disp Resol 165 (arguing for “better analysis of when and where to
support ADR programs as part of the rule of law development assistance” in countries “with
endemic corruption that is struggling to keep, or maintain, a moderately functional legal sys-
tem,” at 166-67).
172. See, e.g., Ellen E Deason, “Procedural Rules for Complementary Systems of Litigation and
Mediation−Worldwide” (2005) 80 Notre Dame L Rev 553 (exploring legal rules and pro-
cedures in a civil litigation setting in order to support mediation); Welsh, supra note 62 at
78-92 (outlining a number of legal options that aim at protecting parties’ self-determination in
mediation).
173. See, e.g., Richard C Reuben, “Process Purity and Innovation: A Response to Professors
Stempel, Cole, and Drahozal” (2007) 8 Nevada LJ 271 (arguing that “the displacement of
finality with substantive judicial review… will greatly undermine the arbitration process, its
attractiveness as an alternative to public adjudication or negotiated settlement, and its utility as
an aid to the judiciary as a forum for the expeditious resolution of disputes,” at 272).
174. See discussion in supra Part IV.C.
175. See Hensler, supra note 163 (“[i]f ADR is to attain maturity and flourish, we all need to ask
ourselves how we can learn more about it, and put that knowledge to work in ADR policy-
making. We need to test our assumptions about what ADR is, and about what it can do, about
whom it benefits, about its public and private costs, and about its contributions to the fair
resolution of civil disputes,” at 78).
176. See Reuben, supra note 173 at 271 (noting that “the modern dispute resolution movement
has been characterized by a spirit of innovation,”).
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Illustrating this point is the work of Susan Sturm and Howard Gadlin on the
potential of ADR process to generate systemic change.177 They examined in
depth one of the most important debates dividing ADR’s critics from its sup-
porters. A persistent criticism of ADR is the observation that its processes tend
to privatize conflicts and their resolution178 and that such privatization system-
atically disadvantages socially marginalized groups and eclipses gains that they
have achieved in legal reform.179 Countering that view is a perspective that rec-
ognizes law working even beyond the confines of official legal systems, and
norms and values operating at both individual and structural levels of society.180
Mindful of these divergent points of view, yet moving beyond their presumed
conceptual boundaries, Sturm and Gadlin undertook to design an informal dis-
pute resolution process that is norm producing, and integrates “systemic thinking
into individual casework, and individual cases into the project of understanding
and addressing systemic concerns.”181 Introducing “a form of root cause analysis,
which enables intermediaries to identify and, where possible, address underlying
problems as part of individual case work,”182 they showed that “under certain cir-
cumstances, informal processes can achieve systemic change that adjudication
cannot achieve, and can thus solve public problems and generate public values.”
They also conclude that “in some situations, effective individual conflict resolu-
tion depends upon its linkage to systemic problem solving.”183 Building on two
distinct perspectives that were previously thought to be incompatible, this in-
novative process design introduces the possibility of generating systemic change
in individual conflict resolution and broadens the notion of systemic change to
include the domain of private ordering.
VI. Conclusion
It has been said that the field of ADR, as an academic discipline, has tended to
focus too much on the practical and the “how-to,” and has not placed enough
177. Susan Sturm & Howard Gadlin, “Conflict Resolution and Systemic Change” (2007) J Disp
Resol 1.
178. See, e.g., Fiss, supra note 161 at 1085-86; David Luban, “Settlements and the Erosion of the
Public Realm” (1995) 83 Geo LJ 2619.
179. See, e.g., Grillo, supra note 161; Delgado et al, supra note 161; Richard L Abel, “The
Contradictions of Informal Justice” in Richard L Abel, ed, The Politics of Informal Justice
Vol.1: The American Experience (New York: Academic Press, 1982) 267; Carrie Menkel-
Meadow, “Do the ‘Haves’ Come Out Ahead in Alternative Judicial Systems? Repeat Plays in
ADR” (1999) 15 Ohio St J Disp Resol 19.
180. See, e.g., Melvin Aron “Eisenberg, Private Ordering Through Negotiation: Dispute-
Settlement and Rulemaking” (1976) 89 Harv L Rev 637 (recognizing the role of norms in pri-
vate negotiation); Galanter, supra note 64 at 17 (“Just as health is not found primarily in hospi-
tals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing
institutions,”); Marc Galanter & John Lande, “Private Courts and Public Authority” (1992) 12
Studies in Law, Politics, and Society 393 (“[i]nstitutions that are private in significant ways
may embody and implement widely shared public values,” at 412); Bush, “Alternative,” supra
note 170 at 469-74 (suggesting that reasons and principles operate in ADR processes and enable
them to be norm generating); Sturm & Gadlin, supra note 177 at 52-58.
181. Sturm & Gadlin, supra note 177 at 4.
182. Ibid.
183. Ibid.
01_Cheng_36.indd 291 6/7/13 4:47 PM

292 Cheng
emphasis on analysis that explores the underlying assumptions and visions be-
hind the “how-to.” Many have pointed out the need to enlarge ADR discourse
to include discussions of worldview, as the field progresses towards maturity.184
One way of responding to this need is to delve more deeply into Fuller’s work
and consider the broader interactionist vision that underlies his discussions
about process. Rich in implications, Fuller’s interactionism holds tremendous
relevance for the practice and research of ADR, both in terms of its own develop-
ment, as well as its relationship to the law. It is hoped that this essay will spark
interest in further exploring Fuller’s interactionism and its significance for dif-
ferent dimensions of ADR.
184. See, e.g., Susan Oberman, “Style vs. Model: Why Quibble?” (2008) 9 Pepperdine Dispute
Resolution LJ 1; Dorothy J Della Noce et al, “Clarifying the Theoretical Underpinnings of
Mediation: Implications for Practice and Policy” (2002) 3 Pepperdine Dispute Resolution LJ
39; Danesh & Danesh, supra note 106; Joseph A Scimecca, “Theory and Alternative Dispute
Resolution: A Contradiction in Terms?” in Dennis JD Sandole & Hugo van der Merwe, eds,
Conflict Resolution Theory and Practice: Integration and Application (New York: Manchester
University Press, 1993) 211.
01_Cheng_36.indd 292 6/7/13 4:47 PM

Beyond Forms Functions and Limits The Interactionism of Lon L Fuller and Its Implications For Alternative Dispute Resolution

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257

Beyond Forms, Functions and Limits:

Legal philosopher Lon L. Fuller is undoubtedly one of the foremost jurists to

II. Fuller in ADR Discourse

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his essays on mediation,6 arbitration,7 and adjudication.8 Indeed, these works

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system of social ordering.15 Because of their norm-producing and order-generating

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Emerged from this analytical oversight is a somewhat distorted understanding

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III. Fuller’s Interactionist Perspective

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he spoke of refer to a tendency to construe reality dichotomously: “structure

01_Cheng_36.indd 262 6/7/13 4:47 PM

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Here, Fuller pointed to the prohibitive, as well as the facilitative function of

44. Fuller, “Human Interaction,” supra note 15 at 20.

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this interactionist perspective to be foundational in his conception of law. In the

B. Worldview and Assumptions: Human Capacities and Grassroots Power

Fuller’s interactionist perspective raises a number of questions about the reality

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ever achieve complete dominance over others. As he explained, “there is no such

01_Cheng_36.indd 268 6/7/13 4:47 PM

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statement, Fuller articulated this highly participatory vision of democracy:

Boundary Spanning Institutional Intermediaries” (2010) 54 St Louis ULJ 1117 (“Activism’s

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While Fuller acknowledged that social organizations inevitably impose con-

83. Fuller, “Freedom,” supra note 52 at 1325.

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characterized each form of social ordering by the manner of participation it af-

Communication is something more than a means of staying alive. It is a way of

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Admittedly, Fuller gave us only a glimpse of this deeper worldview. What he

IV. Interactionism in Fuller’s Thinking About Processes

93. Ibid at 185-86. Winston captured Fuller’s optimism in the following:

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A. The Interaction of Means and Ends

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as representing an active and organic force, capable of forming, defining, even

According to Fuller, inherent in processes and institutions is the capacity to exert

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The influence of this interactive notion of means and ends is discernible in

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Effective adjudication, as Fuller appeared to suggest, is possible even in the

114. Ibid at 116-18.

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B. A Functional Analytical Approach

Fuller’s interactionist mindset is also evident in the functional approach he took

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remarked, “Fuller’s strategy of disaggregating and contextualizing…, as well as

122. Horwitz, supra note 97 at 184.

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According to Fuller, mediation derives its order-generating capacity from the

C. The Importance of Institutional Design

126. Fuller, “Mediation,” supra note 6 at 150-51.

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