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Lon Fuller, THE MORALITY OF LAW (rev. ed.

pp 3-13, 33-94, 133-51, 187-224

p. 3-13

1: THE TWO MORALITIES

 Content of chapters – because unhappy with existing literature


about relation between law and morality. Two major deficiencies:
o 1. Failure to clarify the meaning of morality itself. It is
assumed we all know what morality means! But that is not the
case.
 In chapter 1, I try to redress this by highlight distinction
between morality of duty + morality of aspiration.
o 2. Neglect for Morality that makes law possible. Focus on
“legal justice”, treat like alike, but little recognition that
problem thus adumbrated is only one aspect of much larger
problem – clarifying directions of human effort essential to
maintain any system of law, even one whose ultimate
objectives may be evil.
 Chp. 3 attempt to bring the analysis of the first two chapters into
relation with various schools of legal philosophy.
 Chp4 seeks to show how proper respect for internal morality of law
limits kinds of substantive aims that may be achieved through legal
rules – closes by showing how something like a substantive “natural
law” may be derived from the morality of aspiration.

The Moralities of Duty and Aspiration

 Distinction between morality of aspiration and morality of duty


o Morality of aspiration most plainly exemplified in Greek
philosophy: it is the morality of the Good life, or excellence, of
fullest realisation of human powers.
o May be overtones of duty to get there, and if fail to realize
fullest capacities, he would be found wanting, not for being
recreant to duty, but for shortcoming, not wrongdoing.
o Rather than right or wrong, we have beseeming conduct.
 Morality of aspiration starts at TOP of human achievement, morality
of duty starts at BOTTOM (ie, lays down basic rules necessary for
society)
o MOD = Old Testament morality “thou shall”, “thou shall not”.
Condemns men for failing to respect basic requirements of
social living.
 Metaphor to help distinguish MOD and MOA:
o MOD = rules of grammar
o MOA = rules of what is sublime and elegant composition of
writing. (these are more vague that basic rules of grammar)
 How would moralities view gambling?
o MOD
 hypothetical moral legislator would have to decide if
gambling harmful so as to refrain from engaging in it.
 Would realise that marginal utility not good with
gambling.
 Weighing all this: MOD might conclude that men ought
not to gamble for high stakes, that they have a duty to
sun “deep play”.
 MOD as lawmaker: will have to face new questions, eg,
what about games that partly rely on skill etc, yes, but
at no point would there be any sharp break with
methods followed in deciding whether to condemn
gambling as immoral.
o MOA
 Q: Is it activity worth of man's capacities? Answer: No,
it’s a kind of fetish, enjoying cultivation of risk for its
own sake, not in the pursuit of, eg, some higher artistic
aim. So, gambling unfit for humans.
 MOA as law maker?: No direct bearing at all. Law cannot
compel man to live up to excellences of which he is
capable.
 For workable standards  MOD
 But MOA has pervasiveness of its implications: rules of
contract and tort, some key principles were not present
in early stages of law but now are and represents the
fruit of centuries old struggle to reduce the role of the
irrational in human affairs.
 Still, no may to compel reason, only seek to exclude
from his life grosser and more obvious manifestations of
chance and irrationality.

The Moral Scale

 As considering whole range of moral issues, we may conveniently


imagine a kind of scale or yardstick which begins at bottom with
most obvious demands of social living and extends to highest
reaches of human aspiration.
o “Somewhere along that line there is an invisible pointer where
the pressure of duty leaves off and the challenge of
excellence begins.”[10]
o War of moral argument is over location of this pointer.
o To find it, must know what is perfect life – if you accept this,
then drawing line is pointless because MOD must borrow
standards from MOA.
 This view has led to diametrically opposed conclusions
concerning the objectivity of moral judgments.
 One side: Fact of experience that we know and
agree on what is bad, thus must follow that we
have shared picture of what is perfectly good
(Platonic Socrates)
 Other side: Men do not agree on what is perfectly
good, our apparent agreement of what is bad is
perhaps an illusion, born of social conditioning,
habituation, and shared prejudice.
 Both rest on idea: must know good to know bad

 In whole field of human purpose, we find rejections of idea that we
must know perfectly good to identify the bad
o E.g No human tool is perfectly suited to any task, but
designed to accomplish indefinite range reasonably well.
o Fuller: So is it also with social institutions, we can know what
is unjust without committing ourselves to declare with finality
what prefect justice would be like. BUT, this is not o say that
drawing line between MOD and MOA is easy.
 Some say MOD relates to life in society, while MOA relates to man’s
life with himself, or between him and God.
o Fuller: true only in sense that as we move up the ladder
differences in capacity and understanding become
increasingly important, but not to say that social bond is ever
broken in that ascent.
 (where would we be if we were cut off from social
inheritance of language, art, thought, etc..)

p. 33-94

2. THE MORALITY THAT MAKES LAW POSSIBLE

This is the story of the unhappy reign of a monarch of Rex

Eight Ways to Fail to Make Law

 Rex was resolved to remedy a bad situation: but, alas, he fails.


 First act was dramatic: announced repeal of all existing law (to get
clean slate) But making new laws was tough, and strained him to
the breaking point.
 So gave up on making code, and said, he would be judge over any
disputes that may arise, in hope that case by case he would work
out a system of rules that could be made into a code.
Unfortunately, after 100s of decisions, could not detect any pattern.
Any attempt led to even more confusion and threw his meagre
powers of judgment off balance.
 Following that Fiasco, Rex took fresh start, and took lessons in
generalisation and tried to make code again. Not 100% confident,
said that there is code but would still sit as judge, but code was
state secret, only known to him. Subjects did not like this.

 Then decide that at start of each year, he would decide all


controversies that had arisen among subjects during preceding
year. He would accompany decisions with full statement of reasons.
Subjects said, we want to know rules in advance so they could act
on them.
 Rex now knew, no escape from published code declaring rules to be
applied in future disputes. Subjects happy, but then dismayed
when saw that code was obscure.
 Code was withdrawn, Rex put staff of experts on the Task. They
clarified things, but only brought to light that it was honeycombed
with contradictions
 Again code withdrawn from revision, Rex now losing patience with
subjects and their negative attitude. So purged code of
contradictions, and stiffened rules: ten years prison for coughing in
presence of king. And many other ridiculous laws
 Near revolution ensued. “To command what cannot be done is not
to make law; it is to unmake law, for a command that cannot be
obeyed serves no end but confusion, fear and chaos”.
 Code withdrawn, again revision, so that any impossibility reversed
to make possible. To accomplish this, every part of code had to be
substantially rewritten. But final result was clear and consistent in
itself.
 But because so much had been changing, as soon as new code
appeared, and became legally effective, subjected to string of
amendments. Popular discontent mounted, “A law that changes
every day is worse than no law at all.”
 But pace of amendment began to reduce. But rex felt much bad
things happened because of bad advice from experts. – so
reassume judicial power in his own person.
 This time he was deft, apt, and confident to distinguish own
decisions on principled basis.
 But soon, when reread judgments, saw no correlation between
judgments and the code they purported to apply.
 Leading citizens began to hold private meetings to discuss what
measures short of revolt can be taken, and then Rex suddenly died.
 Rex II decided to take powers of government away from lawyers and
place them in hands of psychiatrists and experts in public relations
so that people would be happy.

The Consequences of Failure


 Rex’s career illustrates attempt to create system of legal rules may
miscarry in 8 ways
o 1. Failure to achieve any rules at all
o 2. Failure to publicize rules expected to observe.
o 3. abuse of retroactive legislation: doesn’t allow guide and
also undercuts prospective rules since it threatens to change
them
o 4. Failure to make rules understandable
o 5. Enactment of contradictory rules
o 6. Rules that require conduct beyond the powers of the
affected party
o 7. Introducing too many and frequent changes in rules that
subject cannot orient his action by them
o 8. Failure of congruence between rules as announced and
their actual administration.
 If fail in one of these eight: no legal system at all. Government
makes kind of covenant, “if you follow rules, you have assurance
that they are rules that will be applied to your conduct.

 Citizens predicament, when things like Nazi Germany happen and


there is drastic and general deterioration in legality. In these
situations, no simple principle by which to test the citizen’s
obligation of fidelity to law, any more than there can be such a
principle for testing his right to engage in a general revolution.
THUS, respect for constituted authority must be kept separate from
fidelity to law (Rex’s subjects remained faithful to him as king but
not faithful to his law, for he never made any).

Aspiration toward Perfection in legality

 Corresponding 8 routes to legal excellence. Fulfilment of all 8 is


utopia. But this Utopia not actually a useful target for guiding
impulse toward legality, goal of perfection is more complex. But
suggest 8 standards by which excellence in legality may be tested.
 Now clear, that inner morality of law presents all aspects of that
scale which starts with MOD and ascends to MOA.
 Applying analysis of first chapter to this subject, must consider
distinctive qualities of inner morality of law.
o Basic morality of social life, duties towards others, usually
only require negative “do not kill” type commands.
o But inner morality requires more, also needs ‘make law
known’ ‘make it coherent’ etc. To meet this, energies must be
directed towards specific kinds of achievements not merely
warned away from harmful acts.
o Because of affirmative quality of its demands, IM lends badly
to realization through duties, whether moral or legal, why?
Because now matter how desirable direction of human effort
may be or appear, if we assert there is a duty to pursue it, we
shall confront the responsibility of defining at what point that
duty has been violated. Thus, duty on legislator to make laws
clear is an exhortation unless we define degree of clarity he
must attain to discharge duty.  Adds to up saying: Morality of
law condemned to remain largely a morality of aspiration and
not duty. Its primary appeal must be to a sense of trusteeship
and to pride of the craftsman.
o Importance exception: relates to desideratum of making laws
known. This demand lends itself to formalisation.
o You would think that non-retroactivity also easily formalised,
but this seeming obvious demand turns out to be one of most
difficult problems of whole internal morality of law.

Legality and Economic Calculation

 Remember, on level of duty, marginal utility calculation out of place,


but in MOA not only in place, but becomes integral part of moral
decision – increasingly as we reach towards highest levels of
achievement.
 Need economic calculation when inner and external moralities
conflict, eg, inner morality wants stability, external wants and needs
change – condemned to steer through middle.
 Much less obvious that within internal morality of law itself
antinomies may arise, so also desirable that laws should remain
stable but also not pose insurmountable barriers to obedience.
 Former Minister of Justice Poland 1961 said that they discovered
that making laws readily understandable (in early days of
communist regime) carried hidden cost in that it rendered their
application by the courts more capricious and less predictable.
  Enough said to show that utopia of legality cannot be viewed as a
situation in which each desideratum of the law’s special morality is
realized to perfection.
o “In every human pursuit we shall encounter problem of
balance as we tread road that leads from abyss of total failure
to the heights of human excellence.”
 Now, pass review of 8 demands of the law’s inner morality.

I. The Generality of Law

 First desideratum of system for subjecting human conduct to


governance of rules is obvious: there must be rules. This is the
“requirement of generality.”
 In recent history most notable failure to achieve general rules has
been that of our regulatory agencies, esp those charged with
allocative functions.
o They have failed to create any rules at all!
 Appreciate that this principle is different from demand of laws
internal morality which just requires there must be rules, however
fair or unfair they may be.
 In actual systems, total failure to achieve anything like general rule
is rare: generalisation is implicit even in a single command/wish. Eg
tell dog to shake hands... Still, many systems suffer from lack of
general principle
 Austin treaties this a bit, but his attempt to distinguish between
general and particular commands was so arbitrary that it didn’t
help. He failed to distinguish what is essential for efficacy of system
of legal rule and what shall we call “a law”?

II. Promulgation

 Ancient problem, back to secession of plebs in Rome. Though


urgent, still subject to marginal utility principle because foolish to
try to educate EVERY citizen on EVERy law that applies to him.
 Need for this education will depend how far requirements of law
depart from shared views or right and wrong.
 Complication: what counts as law for purposes of this requirement?
E.g internal procedures of decision making bodies? (Note the bizarre
situation in Switzerland that certain courts must hold their
deliberations in public.)
 “Why all this fuss about publishing laws, we have thousands, and
only a couple are ver known. Even if put laws in street corner, not 1
in 100 would read” – Thomas Arnold
o Response: Even 1 in 100 is valuable, and he cannot be
identified in advance.
o Also, people usually follow others who know law better, must
be promulgated.
o Also, must promulgate to allow for criticism
o Also, most laws are specific, and promulgation doesn’t rest on
idea that all laws known to all people, but situation-specific.

III. Retroactive Laws

 In US, this problem dealt with in Constitution: Art 1 para 3


 Taken alone, retro rules are a monstrosity.
 To appraise them intelligently, we must place them in the context of
a system of rules that are generally prospective. Curiously, then,
situations ay arise where retro rules essential to advance cause fo
legality.
o When? – when things go wrong that retro statute often
becomes indispensable as a curative measure for internal
morality. “Though proper movement is forward, sometimes
we have to turn back and pick up the pieces”.
o And: though taken by itself, retro impairs principle of legality,
but it alleviate effect of a previous failure to realise two other
desiderata of legality: that the laws should be made known to
those affected by them and that they should be capable of
being obeyed.
 Don’t be fooled, retro not always curative, e.g Roehm Purge, killed
100 ppl, then Hitler made retroactive statute.
 Second perspective is not so much contribution retro makes to inner
morality of law, but rather to circumstance that it unavoidably
attaches in some measure to the office of judge.
o How? If A and B both have equally good claim on face of
statute, and judge decides the case, he is inevitably engaging
in an act of retrospective legislation.
o Also, consider that after A v B decided, C and D have dispute
and C refuses to settle because he thinks A v B decision was
wrong and that it should be overruled. If overruling is made
retrospective, then D loses out though he relied on a legal
decision that was clearly in his favour.
 These situations concerned civil disputes. Criminal cases, different
considerations apply. Recognised in cases involving overruling of
precedents, eg where court construed a criminal statute not to
apply to a certain form of activity and then later changes its mind. –
if this is projected retrospectively, men who are walking free on
streets would be branded as criminals.
o Some say that different consideration apply to cases where
court settles previously unresolved uncertainties in app of
criminal statute and that such cases must be treated like civil
case of A v B. Fuller> this is wrong,
o Fuller suggest that principle ought to be recognised where if D
should not be held guilty of crim where the statute was
applied to his situation was so unclear that had it been
equally unclear in all applications, it would have been void for
uncertainty. – this would eliminate false analogy to civil suits

 Most difficult problem of all: knowing when an enactment should


properly be regarded as retrospective.
o Simple case: statute wants to make criminal an act tht was
legal when committed. Most repulsive in criminal law.
o Contrast case: tax law to impose ftax on financial gains
realiszed in 1960 at time when such gains were not subject to
tax. May be unjust, but not strictly speaking retroactive. But
ordinary persons would say this is also retroactive and to
argue it is otherwise is quibble.
o Answer?: Look, men rely on law as it is all the time, tax,
property, contract, etc. If all men always made secure against
change, law would be ossified forever.
o Counter: tax law different from contract – tax coax men into
acting certain way, contract more guiding, more a tool.
 State + subject relationship bit like a contract.
 Not all of retro analysis is difficult and obscure.
 As with the other 7 desiderata that make up internal morality,
difficulties and nuances should not blind us that it is not hard to
recognize blatant indecencies, and don’t have to go as far as
hitlerite Germany.
o E.g Statute that said “anyone who has been convicted of
crime of violence may not receive any firearms” ever. This
over clever attempt was stricken down by the supreme court
in Tot v United States.

The Clarity of Laws

 One of most essential ingredients of legality. Not often challenged,


but not completely understood either.

 Today, strong tendency to identify law not with rules of conduct, but
with hierarchy of power or command – leads to view that while
judges and executive can infringe legality, legislatures cannot.
Legislature, being n top of chain of command, has intensified
responsibility towards inner morality of law.

 THUS, putting high value on leg clarity doesn’t mean we can’t have
things like reasonable, or good faith. Sometimes we even need that!
Appreciate that a “specious clarity can be more damaging thatn a
honest open-ended vagueness” [64]

 But, its serious mistake to think that busy leg can, if finds no way to
convert intent into clear rules, delegate task safely to judge or
admin tribunals.

o Hayek criticizes that all these terms of ‘reasonable’ or ‘fair’


have served to whittle down the rule of law progressively into
vague formulas and increasing arbitrariness.
 Alas, there is an entire chapter that needs to be written on analysis
of circumstances when problems of governmental regulation may
safely be assigned to adjudicative decisions with a reasonable
prospect that fairly clearly standards of decision will emerge from
case by case treatment of controversies as they arise. Why?
Because “wait and see” has little to recommend it.

Contradictions in the Laws

 Obviously, needs care of legislator. More difficult: when does


contradiction exist?
 It’s not a simple logic problem, ie, that A cannot be – A
 E.g 1: must put license plate on care on jan 1 but then also says
crime to work on car on jan 1. its harsh, but not against logic.
o How to remedy?
o Find guilty of crime and then remit punishment because he
worked under compulsion of statute. But if no value in that,
one of two options how to interpret of statute>
o 1. that section making work on that day a crime overrides
provision concerning license plates, so that you can postpone
installing of license plates on jan 2 or
o 2. license plates provision overrides work prohibition.
o BEST solution: combine these two, that both are within the
law.
 Eg. 2: From actual decision in US v Cardiff: president of company of
manufacturing food convicted of crim of refusing to permit a federal
inspector to enter his factory to determine whether it was
complying with Federal Food, drug and Cosmeic Act. Problem, act
seems to say that inspector has right to enter factory but that
owner has right to keep huim out by refusing permission. Remedy?:
---
o ---- Interpret act to mean that owner violates act if AFTER
granting consent he THEN refuses entry. i.e man doesn’t have
to make a promise, but if he does, he may fasten a liability on
himself by doing so.
o Supreme Court didn’t accept this, not because of lack of logic,
but because didn’t accord with statutory intention. Held that
clash between to provisions produced a result too ambiguous
to give adequate warning of the nature of the crim: the Court
therefore set the conviction aside.
 E.g. 3: what if statute from 1963 conflicts with statute from 1953?
o Here we solve this by implied repeal.
o But somtiems better way would be to do what you do if
contradiction within one statute- effecting a reciprocal
adjustment, but that throws up problems fo its own, eg, where
to stop?
o One clear lesson comes through: Legislative carelessness
about the jibe of statutes with one another can be very hurtful
to legality and there is no simple rule by which to undo the
damage. Best to speak of “inconvient” or “repugnant” rather
than contradiction.
 To determine when two rules of human conduct are incompatible we
must often take into account a host of considerations extrinsic to
the language of the rules themselves.
o At one time the command “cross the river but don’t get wet”
was repugnant, today with bridges this is possible.
o But appreciate that it is not just a technological matter. If you
tell a man to jump with feet on ground, includes entire
institutional spectrum- but how to reconcile this with the new
years jan 1 e.g and claiming that there was actually a
legislative oversight would be instructive. ?? you didn’t get
this last paragraph.
Laws Requiring the Impossible

 On face of things – seems an absurdity.


 *BTW* now is a good time to ask if most of other desiderata that
make up the internal morality of the law are not also ultimately
concerned with the possibility of obedience.
 But, maybe would do it to show that there is nothing that cannot be
demanded of subjects and they must be at all times ready.
 However, Good teacher demanding more from students than he
thinks capable can be used in a positive way to encourage – but
government cannot do and perform that same function.
 Not demanding impossible of subject may be presses towards
quixotic extreme in which it ends by demanding the impossible of
the legislator.
◦ Sometimes assumed that you cannot be held liable unless it
rests on either an intent to do a harmful act, or some fault or
neglect --- anything else, he becomes liable for “this must not
happen” which was impossible to bey.
◦ Sounds reasonable, but actually demands the impossible of the
law, because, e.g. If we impose reasonable standards, a certain
person, that may be beyond his natural reach to ever attain.
 These difficulties arise because determination of fault is essentially
a moral judgment. Cf: Intention = fact inferred from outwards
manifestations.
 Thus, these are the difficulties encountered when, to keep law
within citizens capacity for obedience, his liability is limited to cases
where fault or wrongful intent can be demonstrated. HOWEver,
there are numerous instances in our law of legal liability that is
independent of any proof of fault or intent.
◦ E.g lunatic steals purse, attracts not wrongdoing or fault because
lunatic, but still doesn't mean he gets to keep my purse.
 Thus there has been created an entire body of law of rectification
and unjust enrichment. Existence of this comes when men cannot
through some reason pattern their actions after law, but to preserve
integrity of a system of legal relations set by advertence there is
need for supplementary system of rules for healing the effects of
inadvertence (close parallel to retroactive laws). Just like retro
laws ok to cure in a general prospective system, same with
inadvertence. If always inadvertence, bad, but like this, to cure,
workable.
 But this curing cannot explain all instances where legal liability
arises without fault. :
◦ Strict liability! Often justified by economic principle that the
foreseeable social costs of an enterprise ought to be reflect in
the private costs of conducting that enterprise.
◦ What we want with SL, is not that it cease commanding the
impossible, but that it define as clearly as possible the kind of
activity that carries a special surcharge of legal responsibility.
Can easily expand this concept, in some countries it exists for all
automobile related incidents.
◦ BUT: don't extent SL to all acts, would lose connection between
cause and effect (poet writes sad poem, man kills himself, who
caused it)?

 Mixed legislative motives for SL, like inducing more care.
 Most serious infringement of principle that law should not command
the impossible: creating SL in criminal liability. - possession of
narcotics, gamblings, drugs.
◦ They serve to convenience the prosecutor, there apparent
injustice is removed by the selective enforcement. Because it is
only the villains who are pursued in practice. And when absolute
liability is coupled with drastic penalties, position of prosecutor is
further improved. Deterrent effect or grateful when let off.

 Two further observations before leaving this area


◦ 1No hard and fast line can be drawn between extreme difficulty
and impossibility. Between the two there is an area where the
internal and external moralities meet!
◦ 2. Our notions of what is in fact impossible may be determined
by presuppositions about the nature of man, and they can
change. (Today like this, tomorrow like that)-

Constancy of Law through Time

 Seems least suited to formalization in a constitutional restriction.


E.g no constitution would say that no law should be changed more
than once a year.
 When Madison defended the ban on non retroactive laws impairing
obligation of contract, he used language more apt for describing evil
of frequent change rather than retro laws:
 ?

Congruence between official Action and Declared Rule

 Most complex of all desiderate.


 This congruence can be destroyed in many ways: mistaken
interpretation, inaccessibility of the law, lack of insight into what is
required to maintain the integrity of a legal system, bribery,
prejudice, indifference, stupidity, and drive towards personal power.
 Thus, procedure to maintain congruence takes on many a form.
◦ Umbrella of “procedural due process”, standing to raise
constitutional issues.
 In US, judges entrusted with safeguarding this, has advantages, but
also disadvantages. It makes correction of abuses dependent of
willingness and financial ability of the affected party to take his case
to litigation.
 Where law is judge made, though lower courts can impart
congruence between law and official action, supreme court cannot
because it makes the law. ..but not, because can make tune
undanceable, inter alia, frequent changes, retroactivity, etc.
 Most subtle issue: interpretation. What are the Principles of interp.?
Best general answer I know is
◦ When Baros of the Exchequer met in 1584:
▪ 1. What as common law before making of act?
▪ 2. what was mischief and defect for which common law did
not provide_
▪ 3. what remedy the Plt hath resolved and appointed to cure
the disease of commonwealth?
▪ 4. The tru reason of the remedy; and then the office of all
Judges is always to make such construction as shall suppress
the mischief and advance the remedy.
◦ Fuller thinks it should have 5th point “How would those who must
guide themselves by its words reasonable understand the intent
of the act, for the law must not become a snare for those who
cannot know the reason for it as fully as do the Judges.”

 Must also appreciate some clouds of confusions: interpretation is


not about what parliamentary intention is, because that is usually
clear, but when judges declare what the intention is, they are in
truth themselves legislation to fill up casus ommissi, the left gaps.
◦ Underlying this view: atomistic conception: idea that we are
concerned with individual things rather than general ideas.
◦ This atomist view exercises much influence on theories of
interpretation that we must set off against ia truer view of the
problem.
◦ Analogy: Son must finish project started by father who was
working on an invention but father dies and leaves only sketch
and then son must start thinking about how to remedy the
situation. Questions son must ask himself are similar to that
what must ask when interp. Statues.
▪ What about impasse of “legislative intention” who's intention.
Back to analogy. What the son does is look at the intention of
the DESIGN, not only put himself in the shoes of his father. So
we must speak of “the intention of the statute”.
▪ Is analogy misleading, can statute be reduced to simple
invention of household utility? No, because precisely some of
the uncertainty can be tolerated!! so long as it doesn't exceed
a certain crucial point.

▪ E.g 1 of statute that was vitiated by a Fundamental error in its


design.
 Para 5 of S 4 of statute of Frauds 1677. Section 4
predicated on assumption that certain kinds of contracts
ought not to be legally enforceable unless proof of their
existence was backed by a singed document, but not all, so
draftsmen faced with task of deciding which ones were to
be and which ones not required in writing. Wording of
para 5 was “no action brought upon any agreement that is
not to be performed within the space of one year from
making thereof; unless the agreement upon which such
action shall be brought...shall be in writing, and singed by
the party to be charged therewith.”
 Problems with drafting.
◦ a. no relation between time when witness will be called
and time required to perform contract.
◦ b. Draftsmen failed to ask themselves hat the courts
should do with the very common case of contracts as to
which it is impossible to say in advance how much time
their performance will requires, like to employ a man for
life.

▪ E.g. 2: Statute that fails to define in any clear terms of WHAT


mischief it was intended to cure.
 Legislation to prevent saloon being established again.
How? Well, look at its attributes and legislative individually
against it (No swinging doors..etc)
 Primary responsible for administering this a is with
licensing authority.
 Must break off discussion of interpretation here, too richly textured
a subject to be exhausted by any one analogy or metaphor. ---
Depends so much on context.
 With all its subtleties, problem of interpretation occupies a sensitive
central position in internal morality of law.
 IT Reveals like no other problem can, the cooperative nature of the
task of maintaing legality.
◦ Interpreting agent must not be doing senseless tasks,
and legislator must anticipate rational and stable modes
of interpretation.
◦ This RECIPROCAL dependence permeates in less
immediately obvious ways the whole legal order.
 NO SINGLE CONCENTRATION OF INTELLIGENCE, INSIGHT, AND
GOOD WILL, HOWEVER STRATEGICALLY LOCATED, CAN INSURE the
SUCCESS OF ENTERPREISE OF SUBJECTING HUMAN CODCUT TO the
TOVERNANCE OF RULES.

Legality as Practical Art

 Some final observations added concerning practical applications of


the principles of legality.
◦ 1. A warning about the word “Law”: Not all laws must be public,
e.g. Act that allows funding of secret military research must be
concealed from public. US Constitution art V provides itself that
each house shall keep a journal of its proceedings, and from time
to time publish the same, excepting such part as may in their
judgment require secrecy.”
◦ 2. *Infringements of legal morality tend to become cumulative!,
e.g., neglect of clarity, consistency, or publicity may beget the
necessity for retroactive laws.
◦ 3. Just as law merely brings explicit expression of right and
wrong widely shared, so too retroactivity can do so, what
appears retrospective leg may in substance represent merely the
confirmation of views already widely held, or in process of
development towards the rule finally enacted. Can be used to
catch up to what the common practice already is.
◦ 4. Stringency as well as priority of ranking will be affected by the
branch of law in question, as well as by kinds of legal rules that
are under consideration.
◦ 5. In heretofore analysis, taking viewpoint of the conscientious
legislator, eager to understand the nature of his responsibility
and willing to face its difficulties. This must not be so.
▪ E.g Caligiulia publicized his laws, but in such fine print and so
high up that no one could read them
 Paradox, what seems so simple to do correctly is so difficult in
practice
◦ E.g Aristotle gives example of dealing justly with people, the
rules are easy, but application of simple rule not simple
◦ So we may say, echoing Aristotle, that easy to see laws should
accord with 8 desiderata, but knowing how under what
circumstances, and in what balance these things should be
achieved is no less an undertaking than being a lawgiver.
p. 133-51

Hart's The Concept of Law

 With its fundamental analysis of the concept of law, I am in virtually


complete disagreement.
 Main criticism: Harts whole analysis proceeds in terms that
systematically exclude any consideration of the problems I
attempted to analyze in my second chapter.
 Here, big problem Fuller has is with RORecognition.
 While starting with Distinction of rules imposing duties and rules
conferring legal powers, nothing wrong, but must appreciate, as
shown with critical writing of the Hohfeldian analysis, you can
complicate things beyond redemption if not careful.
◦ Eg. 1: Trustee, where uses own money on trust, has right to
reimbursed by beneficiary. But can do this silently, simply a
power-conferring rule not duty imposing. BUT, if trust document
also allows benef to transfer estate to himself and does so before
trustee gets his money back, then it becomes DUTY to
reimburse trustee first.
◦ Eg.2: Contract and repudiation and continuing and duty to
mitigate
 E.g are enough to show that there are two different standards for
applying distinction between conferring powers and duties.
◦ One inquires into the fundamental legislative intent; the other
into the legal mechanics by means of which the aim of the rule is
effectuated. MUST REALIZE THESE ARE DISTINCT STANDARDS!
 Fuller on Harts RORecognition
◦ Hart reads into the notion that the ROR is power conferring that
the rule cannot contain any express or tacit provision to the
effect that hte authority it confers can be withdrawn for abuses
of it. ---- He must do this to preserve his key distinction of
power conferring and duty imposing rules. Hart fell into
dangerous jurisprudential trap: He is applying to the attitudes
that bring into being and support a legal system jurisitic
distinction that can have no meaning in this application.
◦ “Hart tries to rescue concept of law from its identification with
coercive power”
▪ He says that legal system is not gunman situation write large,
but if anything that lawgiver says is law is law, then that could
mean that it is WORSE than the gunman situation, could take
money and shoot me down, and thats ok? --- there is no
reciprocity with Harts gunman situation!

◦ Hart concedes that in complex constitutional democracy – there


are many RORs and that a major portion of population have no
general conception of the legal structure or of its criteria of
validity (p111)
◦ Hart concedes not always easy to draw line between ordinary
rules of law and those rules that grant lawmaking powers (p.144)
◦ YET, insist that RHE rule of recognition that ascribes legal
sovereignty to the Queen in Plt can in some way summarize and
absorb all the little rules that enable lawyers to recognize law in
a hundred different special contexts. --- Fuller disagrees. Plt just
name for institution that has changed dramatically over years!

◦ A basic ERROR OF METHOD permeates Hart's whole treatment of


the ROR. He tries with aid of rule to give neat juristic answers to
questions that are essentially questions of sociological fact ---
most apparent when he discusses what he calls the problem of
“the persistence of law” (60-64).
▪ So when Rex V succeeded by Rex IV, law stays unless
changed. But if Brutus I comes in, all law loses force... weird..
so hart would be forced to say that Brutus tacitly re-enacts
the previous law (very argument he critics with Hobbes,
Bentham, and Austin)

◦ Another PORLBEM WITH APPLICATION OF ROR when Hart


attempts to use it to explain how and when a primitive society
makes its “step from the pre-legal into the legal world” (p.41).
And idea that first step is when society realizes that can make
rule to change rules of duty (pg 61)
▪ This is gain a misapplication of juristic distinctions to a context
that will not support them. If we can speak of emergence of
anything like an explicit rule or recog, this took place over
centuries and involved gradual shift from notion of powers as
an attribute of the person to powers conferred by an assigned
social role.
▪ Also: doubtful if primitive society dominated by anything like
modern conception of duty. If anything, power is more
primitive than duty.
▪ Lets look at actual society that made that step: Manus People
of the Admiralty Islands as reported by Margaret Mead.
 They learned from the Australians adjudication. The justice
they dispensed was kind of black market justice, powers
were unsupported by any ROR except very informal shifting
one a among manus people themselves. TO the manus
people, the whole system looks fresh and beautiful even
though “illegal courts” are spreading.
 Thus --- ROR among Manus people ran primarily not
towards human agency empowered by the rule to make
law, but towards a procedure.

Law as Purposeful Enterprise and Law as a Manifested Fact of Social


Power
 Nature of Fundamental divergence: Fuller insist that law be viewed
as a purposeful enterprise, dependent for its success n the energy,
insight, intelligence, an conscientiousness of those who conduct it,
and fated, because of this dependence, to fall always somewhat
short of a full attainment of its goals. IN OPPOSTIIONS: it is insisted
that law must be treated as a manifested fact of social authority or
power, to be studied for what it isa n does, and not for what it is
trying to do ro become.

 Fuller thinks: I have attributed to the institution of law a purpose


that is modest and sober, that of subjecting human conduct to te
guidance and control log general rules.
 What's wrong with opposing view?: If law simply manifested fact of
authority or social power, then we can no longer talk about the
degree to which a legal system as a whole achieves the ideal of
legality; if we are consistent with our premises we cannot, e.g.,
assert that the legal system of country X achieves a greater
measure of legality than that of Country Y. ----- we cannot even
explain what would be wrong with a system of law that were e.g.
Wholly retroactive.
 The view which pretends to abstract from the purpose of law and to
treat law as simply manifested fact of social power cannot be
supported except through a falsification of THE REALITY on which it
purports to build.
◦ Gist of opposing theory: there is no degree of success in
lawmaking, what authority determines to be law is law. ---- This
theory only tenable if we falsify reality.
▪ 1. Authority that tells us what is law is itself product of law
▪ 2. ignoring the fact that a formal structure of authority is itself
usually dependent on human effort that is not required by an
law or command. Ie men generally do not do absurd things
that would defeat the whole undertaking in which they are
engaged, even if the formal directions under which they
operate permit these absurdities.
 e.g US Constitution.
 Harts problem with persistence of law another e.g. Of a
gap in postulated formal structure that does not appear as
such in practice. --- this is only a problem if you define, like
hart, law as emanation of formal authority.

 There is irony in any view that refuses to attribute to law as a whole


any purpose, however modest or restricted.
 Even if we treat it as “fact” we are talking about a special kind of
fact that everyone is trying to explain (not the gunman situation
write large, etc).
 “Precisely because law is purposeful enterprise that it displays
structural constancies which the legal theorists can discover and
treat as uniformities in the factually given. If he realized on what he
built his theory, he might be less inclined to conceive of himself as
being like the scientist who discovers a uniformity of inanimate
nature. Perhaps in the course of rethinking his subject he might gain
a new respect for his own species and come to see that it, too, and
not merely the electron, can leave behind a discernible pattern.

p. 187-224

Chapter V: A Reply to Critics

 see page 188 for an overview of the debate between hart and
Fuller, like a boxing match.
 Main reason Fuller wants to reply is because so much depends on
the starting points that each writer has, not what they say, but what
they feel is necessary to be said.
 Fuller says that what Hart says of full eris that fuller makes too
much of purpose and would do well to play it down in my thinking.
--- Fuller thinks Hart makes too little of purpose. He suffers from
delusion that gain will be realized if only we treat purposive
arrangements as though they served no purpose.
 Lets identify these starting points

The Structure of analytical Legal Positivism

 Little interest among these guys to discern elements of tacit


interrelatedness that infuse a legal system.
 There are five basic starting points of the positivist creed:

◦ 1. They see law as a one-way projection of authority,


emanating from an authorized source and imposing itself on
the citizen. Doesn't believe in cooperative element between
lawgiver and citizen. Law simply acts on citizen.
◦ 2. Their basic concern is “who can make law”? Intramural
debates within this school of legal positivism relate almost
entirely to problem of defining the principle or principles by
which right to create law is allocated.
◦ 3. LP does not view lawgiver as occupying any distinctive
office, role, or function.
◦ 4. Because of 3, no “role morality” attaches to the
performance of his functions. No room for ethical code
governing lawgiver.
◦ Summary: The LP recognizes in the functioning of a legal
system nothing that can truly be called a social dimension. LP
do not see lawgiver and citizen in interaction.
◦ 5(Most central)**: Belief that clear thinking is impossible
unless we effect a neat separation between the purposive
effort that goes into the making of law and the law that in fact
emerges from that effort.
 In dealing with human interaction, the positivistic stance toward
reality becomes most difficult to maintain.
◦ E.g watching a surgeon as a layman, you would understand
movement of hands but not WHY he is doing what he is doing.

 Two intellectual influences that have, impinged upon and helped


to shape the New Analytical Jurists (FIND OUT WHAT THIS
MEANS):
◦ 1. Common language philosophy of JL Austin: practice of
disentangling everyday language. Fuller thinks this is itself
has no value. In fact, have even led some of Fullers critics
astray.
◦ 2. utilitarianism.
▪ Basic fault: trivialize ends. More basic fault: falsification of
the relation of means and ends – a fault mitigated but
certainly not urged by what is called rule-utilitarianism.

Is there Some Minimum Respect for the Principles of Legality Essential to


the Existence of a Legal System?

 Fuller in Ch2 said that if you depart from principle of legality enough
– not only bad law, but no law.
◦ Critics seem to agree, but differ to what end is law being so
defined that it cannot exist without some min respect for the
principles of legality.
◦ Will not explore that now.
 Lets consider collateral point by Dworkin: that existence of law
cannot be a matter of degree, a law exists or it does not.
◦ But Dworkin doesn't explain why, why, e.g. A country cannot be
ruled by a system that is half law. Fuller thinks because he
confuses daily usage or word, because it is an either or concept
in daily usage: eg. “that is a little bit unjust” is ok, but “that is a
little bit illegal”. The word law has in in-built bias towards the
“black and white”.
◦ Its just how we say it, ie, if we want to say that country a has
more truly law than country b we simply say that country a
government displays a greater respect for principles of legality
than does government B. Finito.

Do the Principles of Legality Constitute an “Internal Morality of Law”?

 According to 4 critics of Fuller, internal morality of law betrays a


basic confusion between efficacy and morality. While respect for 8
principles of legality needed, doesn't mean they are moral in nature.
 They further argue that if there is such a thing as internal morality
of law making then there must also be internal morality of even the
most disreputable and censurable of human activities. - Cohen
wonders whether there is a lapse in morality when a would be
assassin forgets to load his gun.
 Hart most fierce critics: by classifying principles of legality as
morality, it perpetrates a confusion between two notions which we
MUST keep apart: purposive activity and morality.
◦ Fuller: at first this seemed utterly perverse, but makes him
understand the unarticulated starting points of my critics.
◦ Critics obscurity: what on earth do they mean by efficacy? How
can a legal system be efficacious? -- consider example from
recent history of soviet Union that will suggest some of the
difficulties involved in answering that question. Used retro laws
to make death penalty for petty economic crimes. ----- critics
would reply and say we didn't mean short run efficacy, but if
they run with that, they will soon find themselves drifting into
territory of morality.
◦ Critics preference for “efficacy” over morality reflects the
influence of deep seated and largely unarticulated resolutions of
the mind, rather than any reasoned out conclusion about a
specific issue.

 Two assumptions underlying critics rejection of the internal morality


of law:
◦ 1. belief that existence of law from a moral point of view is a
matter of indifference.
◦ 2. Assumption that law should be viewed not as product of an
interplay of purposive orientations between citizen and
government, but as one-way projection of authority, originating
with government and imposing itself upon citizen.
 In treatment of law and morality, what is missing by critics is
recognition of role legal rules play in making possible an effective
realization of morality in the actual behavior of human beings.
 To regard as morally indifferent the existence or non existence of
law is to assume that moral precepts create the same meaning
regardless of the social context into which they are projected.

 What is wrong with the 2nd assumption above?


◦ 'managerial direction' versus 'law'. Difference: directives issued
in a managerial context area applied by the subordinate in order
to serve a purpose set by his superior. The law abiding citizen on
the other hand, does not apply legal rules to serve specific ends
set by the lawgiver, bur rather follows them in the conduct of his
own affairs, the interests he is presumed to serve in following
legal rules being those of society generally. --. Rules of legal
system normally serve the primary purpose of setting the
citizens relations with other citizens and only in collateral manner
his relations with the seta of authority from which the rules
proceed!
◦ Now, lets see what implications 8 principles of legality have for a
system of managerial direction as compared with their
implications for a legal order.: it fits quite comfortably. The can
be used as instruments to the superior's ends.
◦ BUT, with a legal system the matter is otherwise, because here
existence of relatively stable reciprocity of expectations between
lawgiver and subject is part of the very idea of a functioning legal
order. ---- key here is the congruence between official action and
declared rule.

 Why are my critics so intent on maintaining the view that the


principles of legality represent nothing more than maxims of
efficiency for the attainment of governmental aims? Answer: the
main part of their analysis are not taken from law at all, but from
what has been called here managerial direction. They do not have
in their writings the basic principle of Rule of Law!! -- ie, that acts of
legal authority towards citizen must be legitimated by being
brought within the terms of a previous declaration of general rules.
(esp obvious throughout Harts Concept of Law. His only extended
treatment of principle of generality is inspired by managerial model
(his pages 20-21)
 So, Harts concept of law, being based essentially on the managerial
model. There is no recognition that the voluntary cooperation by the
citizen must be matched by a cooperation of the government.
 Simmel suggests that underlying a legal system is contract between
lawgiver ans subject: they enact laws, ask that we follow and
promise that they are rules we will apply to your conduct.
 Can get out of the oddness of contract idea with old word
“intendment”. Our institutions and our interactions with one
another are accompanied by a certain interlocked expectations that
may be called intendments – but these underlying expectations are
not brought to consciousness.
 Might think of speaking of “role expectations” rather than
intendment, that accompany the assumption of legislative powers.
BUT crux is, commitment ipled in lawmaking is not something
project on those processes by a moralistic outside observer.
 Silent testimony found in people trying to escape precedent when
lwaying down law
Blanked 4 pages (220-223)

 DEFINITION OF INTERNAL MORALITY: Hart offers idea of law as


'facility' enabling men to live a satisfactory life in common. But
those who design the facility have even heavier task, doing job
right in the first place. THIS onerous responsibility that I have tried
to describe by the phrase “the internal morality of law.”
 Critics reject that such morality could have any intelligible meaning.
Fuller tried to show that our differences on this issue stem from a
basic disagreement about law itself.
◦ Law as interactional process versus law as unidirectional exercise
of authority.