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Lecture 11:12. Modern Natural Law- Fuller
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Lecture notes of 7 pages for the course Jurisprudence at QMUL (FIRST CLASS NOTES!)
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Reading C, ch.5; PSN, 71-83.lecture 10/11. modern natural law: fuller
Biographical background
- An American legal theorist.
- Lived from 1902 to 1978.
- A Professor at Harvard during most of his career.
- Contributions to both legal philosophy and other branches of legal study, e.g., contract law.
- Most renowned work: The Morality of Law (first published 1964) (hereafter: ‘ML’).
- Some relevant events prior to the publication of The Morality of Law: 1957 - Hart’s visit to Harvard
and his Holmes lecture there. 1958 - a version of Hart’s lecture and a critical reply of Fuller published
in Harvard Law Review. 1961 - Hart’s The Concept of Law is published.
Method
- Fuller studies law as a purposive enterprise - Placing human conduct under the governance of rules
with the purpose of establishing the framework of peaceful interaction between people. He talks
about law as being the enterprise of subjective human conduct to the guidance and control of rules.
We have guidance through rules – that is the purpose of the enterprise. A very minimalist
approach.The particular purpose he refers to:
‘[S]ubjecting human conduct to the governance of rules’ (ML, 96); ‘[S]ubjecting human conduct to the
guidance and control of general rules’ (ML, 146).
- Identifies the purpose identifies ways in which the enterprise can fail to attain its purpose
(‘pathologies’) identifies standards it has to meet in order to attain its purpose (‘desiderata’)
- Analogy: the craftsmanship of carpentry.
The pathologies –
- thinking about the ways it (enterprise) can fail to achieve its purpose
- Fuller starts with a musing tale, an imaginary tale – that’s how he brings out the issue of the
pathologies, of the potential failures. The tale is about the monarch, which he calls Rex. When Rex
comes to the throne, he was very critical of the state of law in his kingdom. He wants to reform
everything. He repeals all the existing law. But his fate was to fail – he didn’t manage to create law at
all. Fuller then explains specific ways in which Rex had failed; at school, he wasn’t taught how to make
generalisations. He took a course at how to make generalisations but he is still not confident enough –
he makes the rules but he doesn’t publicise them because he is not sure if they are good. There are
rules, which the public do not know about – this prompts the anger of the population. There are many
more ways he fails as shown below:
- The allegory of Rex eight ways of failing:
A failure to achieve rules at all
A failure to publicise the rules
The abuse of retroactive legislation
A failure to make rules understandable
The enactment of contradictory rules
The enactment of rules that require conduct beyond the powers of subjects
Introducing such frequent changes in the rules that the subject cannot orient his action by
them
A failure of congruence between the rules as announced and their actual administration
The eight desiderata
- 8 requirements of form / of legality
- From the failures, he derives the positive elements – the positive standards of what you should make
the law
- Fuller derives from the above failures eight desiderata: 1
Generality
Promulgation
1
Also referred to as: requirements of form, precepts of the rule of law, principles of legality, the internal/inner
morality of law, or the like.
, Non-retroactivity
Clarity
Non-contradiction - – consistency between the law
Not requiring the impossible
Constancy through time
Congruence between official action and declared rules
The consequences of a failure to comply with the eight desiderata
- Fuller asks what happens when there is a failure to comply with these rules? The answer is it depends
on what kind of failure has taken place, if a system totally fails to meet any one of these requirements
– there has to be a serious failure but it doesn’t need to be failure to meet all the requirements, if
there is a significant failure to meet any ONE of the eight. This doesn’t simply result in a bad system of
law; it results in something that is not properly called a legal system at all.
- A total failure in any one of these eight desiderata ‘does not simply result in a bad system of law; it
results in something that is not properly called a legal system at all, except perhaps in the Pickwickian
sense in which a void contract can still be said to be one kind of contract’ (The Morality of Law
[hereafter: ‘ML’], 39).
- ‘When this bond of reciprocity [i.e. reciprocity between the ruler and the subject, as represented by
the desiderata] is finally and completely ruptured by government, nothing is left on which to ground
the citizen’s duty to observe the rules’ (ML, 40).
- Above the minimum threshold (i) adherence to the desiderata can vary in degree; (ii) the eight
desiderata as standards of legal excellence (‘kinds of legal excellence towards which a system of rules
may strive’ – ML, 41).
- A distinction between the morality of duty and the morality of aspiration.
Morality can be thought of as having two levels.
Some basic rules / basic moral duty, which are necessary for social living. – will be punished if
not followed.
Morality of aspiration – how to live a life of excellence- exemplified by Aristotle etc – will not
be punished but will just not be praised.
Perfect adherence to all eight desiderata is unattainable and ‘not actually a useful target for guiding the
impulse towards legality’
- Caveat: Fuller states that aim high, but don’t aim for perfection. Sometimes, if you aim to comply with
the 8 requirements too much then it would constraint you, in your effort to improve the content of
your laws
- Situations in which adherence to the desiderata must be balanced against the ‘external morality of
law’
- Situations in which the desiderata come into opposition with one another. – Don’t change laws too
often but what happens if you need to respond quickly to a situation and change your laws – this
shows that you mustn’t aim for perfection. Perfect compliance is not a target.
- ‘[A]s we leave the morality of duty and ascend toward the highest levels of a morality of
aspiration, the principle of marginal utility plays an increasing role in our decisions’ (ML, 44).
The values associated with adherence to the eight desiderata, according to Fuller
- he states that the eight requirements are morally valuable.
- Some key statements (not an exhaustive list of all the values he mentions):
Reciprocity between government and citizen – assumption of relationship / underlying
agreement / notion of fairness on who should be punished etc.
‘[T]here is a kind of reciprocity between government and the citizen with respect to
the observance of rules. Government says to the citizen in effect, “These are the
rules we expect you to follow. If you follow them, you have our assurance that they
are the rules that will be applied to your conduct.” When this bond of reciprocity is
finally and completely ruptured by government, nothing is left on which to ground
the citizen’s duty to observe the rules’ (ML, 39-40).
Contrasts managerial direction and law: ‘[M]anagerial relation fits quite comfortably
the picture of a one-way projection of authority. … [L]aw furnishes a baseline for
self-directed action, not a detailed set of instructions for accomplishing specific
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