Lon Fuller (1902 - 1978)

INNER MORALITY OF LAW

• Fuller holds the inseparability of law separately from ethics.
• Fuller draws a crucial distinction between the moralities of duty and
aspiration.
• The morality of aspiration 'is the morality of the good life, of excellence, of
the fullest realization of human powers‘ which enable a society of human
beings to function at their best.
• The morality of aspiration alerts us to the possibilities of human
achievement while the morality of duty takes us at our most base.
• 'It lays down the basic rules without which an ordered society is
impossible, or without which an ordered society directed toward certain
specific goals must fail in its mark.... It does not condemn men for failing to
embrace opportunities for the fullest realization of their powers. Instead, it
condemns them for failing to respect the basic requirements of social
living. '(The Morality of Law: pp. 5-6)
• Fuller believes that the legal system is a complex of rules designed to rescue
humans from taking chances and to put them safely on the road to
purposeful and creative activity. However, we cannot compel a man to live
the life of reason.
• The social task in modernity is to create the conditions for social progress
and climb the scales of human aspirations towards excellence.
• Law is a tool to help us on this path.
• Fuller picks up on the humanist strain of Marx realising the desire to
overcome alienation as part of the striving for excellence.
• Fuller conceptualises a 'procedural version of natural law' which he calls the
'Inner Morality of Law' or a theory of 'Eunomics'.
• What Fuller claims to do 'is to discern and articulate the natural laws of a
particular kind of human undertaking, i.e. "the enterprise of subjecting
human conduct to the governance of rules".'
• These are not the old natural laws of God and man but are more 'like the
natural laws of carpentry, or at least those laws respected by a carpenter
who wants the house he builds to remain standing and serve the purpose of
those who live in it.'
• Under the chapter of 'The morality that makes law possible', he gives a
narrative of an inept king called Rex who makes law in various ways, each
with disastrous effect.
• The moral of the story is that a lawmaker must abide by certain procedural
'excellences‘ and if he does not do so damages the effectiveness of law.
• This 'rule-morality' is an 'inner morality' which is not the same as the 'outer'
morality, which is achieved in the substantive laws
• Law-making is not a one-way directional activity, it is an interactional process.
• A total failure of the lawmaker to aspire to this procedural morality will result
in the system not being legal.
• Fuller lists several 'excellences' which aim to achieve the Utopia of legality.
• Laws must be:
• 1. Sufficiently general;
• 2. Publicly promulgated;
• 3. Prospective;
• 4. Understandable;
• 5. Non-contradictory;
• 6. Fairly constant;
• 7. Possible of performance;
• 8. Administered by officials according to their content.
• What do these mean?
• 1. Firstly, there must be rules. That is, it must be possible to identify within
the way the legal system operates that there is a certain regularity of
behaviour.
• 2. Secondly, these rules must not be retrospective in operation. They must
always be available for those who are to judge the quality of their own acts
and people must not be caught out by a rule which was formulated after the
event.
• 3. Thirdly, they must be made public. These rules must be published in such a
way as to enable people with minimum of difficulty to discover what they
are and to accommodate their conduct accordingly.
• 4. They must be intelligible. That is, the rules must be presented in a way
which enables those whom they are to direct to have a chance of
understanding what it is they ought not to do.
• 5. They must not contradict one another so those to whom the rules are
applied should not be placed in a situation of being caught under one or
another rule.
• 6. It must be possible to comply with the rules which is perhaps an extension
of the fifth rule, that they must not as it were contradict each other so as to
leave the situation where you cannot but break the rule.
• 7. They must not be in constant flux, that is they must not change so rapidly
so that it is simply not possible to co-ordinate a course of conduct in such a
way as to ensure an act in performance of the legal rule.
• 8. They must be applied coherently, that is, rules that should not be so
incomprehensible or difficult to follow so that all the advantages are lost in
their application.
• Since Fuller has defined law as the enterprise of subjecting human behaviour
to the governance of rules, laws may be made in conformity with all these
principles and still have no specific substantive moral content.
• Fuller stated that while a legal system which disregarded all these
'excellences' might continue for a time, it could not continue indefinitely.
• Fuller actually believes that evil, and evil institutions, are intrinsically less
coherent than goodness, and good institutions.
• Criticisms Against Fuller:
• 1. How many of these eight principles must be neglected before the legal
system ceases to be effective.
• 2. Who decides it is no longer effective? Officials? Legislator? Society? Should a
judge refuse to apply inconsistent laws?
• H.L.A. Hart’s ‘Minimum Content' of Natural Law
• Although generally regarded as a positivist Hart has advanced an argument in
The Concept of Law suggesting that there is a 'core of indisputable truth' in the
doctrines of natural law.
• He says that there are five 'truisms' about humanity which give a reason for
postulating a 'minimum content' of natural law:
• 1. Human vulnerability
• 2. Approximate equality
• 3. Limited resources
• 4. Limited altruism
• 5. Limited understanding and strength of will.
1. . Human Vulnerability. By human vulnerability humans are in fact exposed to
the natural circumstances and are exceedingly at risk. We are at risk from
natural events; we are also at risk from those around us who may be minded to
cause us harm. We are not endowed with full protection against our
environment, either socially or naturally. We need to protect ourselves and the
legal system is one of those mechanisms which we use to protect ourselves.
2. Approximate equality. Human beings are approximately equal. That is,
although some people are more gifted than others, it is relatively narrow and so
broadly speaking we are equally at risk from each other.
3. Limited resources. There are not resources enough to go round well. This is
more a problem of absolute scarcity and of distribution; there are limited
number of resources of a particular sort and a particular kind and that we are in
competition for those; we need mechanisms to ensure that competition does not
trigger reactions which result in social chaos. Hart is really drawing our attention
to the fact that we do need some mechanism specifically because of a natural fact
about the natural world which is that we do not have ready access to everything
we want because the resources are limited.
4. Limited altruism or unselfish. This has two aspects: (a) Human beings are
indeed altruistic. That is they are at times and at places minded to act in the
interest of others rather than in the interest of themselves. We need to allow for
that in different schemes of management; But must also allow for the fact that
although human beings are altruistic they are altruistic in very haphazard ways.
We cannot rely upon people acting for the good of their neighbour all the time.
• 5. Limited understanding and strength of will. This really means we do not
always know what is always good for us. That is, we do not always know what
we should be doing in our own interest. Additionally, even when we do
understand our best interest we may not be in a position to carry out what
needs to be done.
• These five factors are simply ways of trying to identify problems which for
Hart have a direct bearing upon the types of legal rules and legal systems that
are created.
• In essence, Hart's argument amounts to a statement that since law serves
human beings it must reflect human conditions.
• A legal system which did not offer a minimal level of protection for both our
physical and psychological needs would scarcely be recognisable as a legal
system at all. For Hart, the matter seems to be a question of practical reality
of effectiveness.
• The legal system which fails to provide the most basic protection for human
interest may not be a very good legal system and therefore make one minded
not to obey.