Fuller - Morality of Law

The Internal Morality of Law: Fuller and His Critics Author(s): Peter P. Nicholson Source: Ethics, Vol.
84, No. 4 (Jul., 1974), pp. 307-326 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/2380144 . Accessed: 14/11/2013 22:52
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The Internal Morality of Law: Fuller and His Critics

Peter P. Nicholson
University College of Swansea
I.
INTRODUCTION
For a number of years, there has been a controversy between Fuller and his critics which raises issues of considerable philosophical interest. Fuller has developed a novel position concerning law and morality. Several other writers, however, concur in rejecting his views as obviously wrong at key points. But what they consider a devastating line of attack, Fuller says "struck me at first as so bizarre, and even perverse, as not to deserve an answer."' How are we to account for this puzzling situation: that although Fuller and his critics agree on important matters, they also seem to be completely at crosspurposes on others of equal importance? Is Fuller guilty of muddled or erroneous thinking, or obscurity? Or have his critics somehow failed to understand his position? If Fuller's ideas have not been properly comprehended, can they be made clear to his critics; and if they are, do the criticisms still stand? Fuller himself and one of his main critics think the explanation is that they are working from different starting points.2 If that is correct, can it be shown that one starting point is to be preferred? I shall not review the history of the dispute, but try to identify the pivotal issues, and examine the arguments thereon of Fuller and of his principal critics. Fuller has made two replies to his critics,3 neither entirely satisfactory. Although he has confronted some of the charges, much of his effort has been directed to articulating and examining the differing underlying premises of his own and his opponents' positions; while this is an impor1. L. L. Fuller, The Morality of Law (New Haven, Conn, 1964), rev. ed. (New Haven, Conn., 1969), p. 201. 2. Ibid., p. 189; H. L. A. Hart, "Book Review: The Morality of Law by Lon L. Fuller," HarvardLaw Review 78 (1965): 1281. Likewise, G. Breckenridge argues that the disagreements between Fuller and Hart ultimately depend upon differing views of the nature of man, law, and morality ("Legal Positivism'and the Natural Law: The Controversy between Professor Hart and Law Review 18 [1965]: 945-64, esp. secs. 1, 4). Professor Fuller," Vanderbilt 3. "A Reply to Professors Cohen and Dworkin," VillanovaLaw Review 10 (1965): 655-66; and Morality, chap. 5.
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tant and useful undertaking, it allows some points to go by default. Fuller also leaves an impression that he is so dismayed by the incomprehension of his critics that he cannot take some of their arguments seriously. On the other hand, it is an advantage to have at hand Fuller's later statements of his ideas. For several reasons, therefore, there is room for an appraisal of the various arguments.
II. FULLER S 'INTERNAL MORALITY OF LAW
Fuller has written much about law and morality-for instance, about the moral foundation which a legal order must have.4 My present concern is with what he says about law and morality under the heading which he terms variously "the morality that makes law possible," "the internal (or, inner) morality of law," "the law's special morality," "the principles) of legality," and "legal excellence." I shall call it "the internal morality of law" (IML for short).5 He lists eight "desiderata"or demands of IML: there must be rules, they must be promulgated, they must be retroactive as seldom as possible, they must be clear, they must not be contradictory, they must not require the impossible, they should not be changed too frequently, and there must be congruence between declared rule and official action. I shall not ask whether this list is correct,6 but rather discuss the nature and validity of the claims which Fuller bases on it about law and morality. In his characterization of IML, Fuller gives a prominent position to a distinction between the morality of duty and the morality of aspiration. He observes that legal philosophers usually fail to clarify the meaning of morality itself, and that he wants to redress this, chiefly by emphasizing this distinction.7 The morality of duty "lays down the basic rules without which an ordered society is impossible," while the morality of aspiration is "the morality of the Good Life, of excellence, of the fullest realization of human powers."8 The two moralities lie on a single "scale" which "starts . . . with the most obvious and essential moral duties and ascends upward to the highest achievements open to man."9 Taken as a contribution to moral
4. "Positivism and Fidelity to Law-a Reply to Professor Hart," HarvardLaw Review 71 (1958): 630-72, sec. 3. Cf. Morality, pp. 137-45. 5. IML is discussed by Fuller in several places, e.g., "American Legal Philosophy at Men and Ideasof theLaw,"Journal Mid-Century: A Review of Edwin A. Patterson'sJurisprudence, of LegalEducation6 (1954): 457-85; and "Positivism and Fidelity to Law." The main account is Morality, esp. chap. 2. It is also a pervading theme in Anatomyof the Law (New York, 1968). 6. It could be argued that retrospective laws should be treated as a special case of laws requiring the impossible. Some think Fuller's list is incomplete; R. S. Summers, e.g., produces a further eight desiderata in "Professor Fuller on Morality and Law,"Journalof LegalEducation18 of GeneralAssessments (1966): 1-27, reprinted in Summers, ed., MoreEssaysin Legal Philosophy: (Oxford, 1971), pp. 101-30, see pp. 121-23. LegalPhilosophers 7. Morality, p. 4. He does not claim that the distinction is new, citing several writers who have drawn it or something like it. To his list may be added J. 0. Urmson, "Saints and Heroes," in Essaysin MoralPhilosophy,ed. A. I. Melden (Seattle, 1958), pp. 192-216. 8. Morality, p. 5. 9. Ibid., p. 42.
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philosophy, this distinction, like all large theses about morality, is open to criticism.'0 However, it will be seen that it does help Fuller to explain certain features of IML, and this should be considered his main purpose in introducing it, and its justification. The two moralities differ in various, interconnected, ways." The morality of duty imposes duties concerning what is necessary for social life (e.g., do not steal), which are backed by legal and social sanctions, and which can and must be performed completely and very widely. The morality of aspiration presents challenging ideals (e.g., be generous), which are reinforced by the rewards of honor and self-satisfaction, and which are not expected to be carried out to the full or by everyone. The ideals of the morality of aspiration are precisely that, aspirations; they are only achieved to a certain degree. Moreover, these ideals may conflict, so one can only be fulfilled at the expense of another or others, and then we have to resort to something akin to the kind of calculation, governed by the marginal utility principle, by which we make the best use of limited economic resources. But failure to achieve aspirations will not lead to society's collapse; as would failure to perform duties. The significance of the distinction between the moralities of duty and aspiration is that IML is "largely a morality of aspiration."'12 For with the exception of promulgation (which "lends itself with unusual readiness to formalization"),IML's demands are positive and creative, and above a certain minimum cannot be easily defined as duties, that is, specific forbearances. "The notion of subjecting clarity to quantitative measure presents obvious difficulties," for instance. IML consists at the lowest level of duties regarding the "indispensable conditions for the existence of law," and thereafter of ideals to aspire to. A great deal is made to follow from this. Since IML is largely flexible and loosely framed ideals rather than fixed and specific duties, its performance cannot be legally required and enforced; "the most we can expect of constitutions and courts is that they save us from the abyss; they cannot be expected to lay out very many compulsory steps toward truly significant accomplishment." The achievment of IML must be largely left to the "energy, insight, intelligence, and conscientiousness" of lawmakers.'3 Then again, since there are degrees of success in meeting the demands of IML, the existence of a legal system, like that of a bald head, is a matter of degree.14 Third, there are limits to the achievement of the aspirations of IML. There are, quite apart from any shortfall due to human weakness, two reasons for this (I am drawing out a distinction which is only implicit in Fuller's account). On the one hand, there are practical limits to how much can be done. With promulgation, for example, "it would . . . be foolish to try
10. 11. 12. 13. 14. See, e.g., Summers, sec. 1; and Hart, pp. 1282-83. Morality, chap. 1, passim. Ibid., p. 43. See pp. 41-46 for the quotations following. Ibid., p. 145. Ibid., pp. 122-23, and 198-200 for elaboration of this important point.
310 Ethics to educate every citizen into the full meaning of every law that might conceivably be applied to him."'5 On the other hand, there are limits due to conflicting moral demands. The requirements of IML may clash, for instance, with moral requirements external to the law, as when IML prescribes that laws be stable, while "changes in circumstances, or changes in men's consciences, may demand changes in the substantive aims of law, and sometimes disturbingly frequent changes." Again, "antinomies may arise within the internal morality of law itself," for example, retrospective legislation may be the only way to rectify some other offence against the principles of legality. Fuller considers limitations due to conflicting aspirations less obvious, and pays them more attention. He argues that since we are dealing here with aspirations, not duties, they may be balanced against each other. The desiderata of IML are not absolute principles, and they are not separate, but "means toward a single end, and under varying circumstances the optimum marshalling of these means may change"; the elements of legality "must be combined and recombined in accordance with something like an economic calculation that will suit them to the instant case. "16 Which combination is suitable "will be affected by the branch of law in question, as well as by the kinds of legal rules that are under consideration."'7 If this is the nature of IML, what does it tell us about law and morality? Fuller claims that the satisfaction of the minimum requirements of the eight desiderata of IML, that is, of those parts which can be stated as duties, is a necessary condition of the existence of a legal system. "A total failure in any one of these eight directions does not result in a bad system of law; it results in something that is not properly called a legal system at all."'8 Fail to achieve the aspirationsof IML and the result is bad law (bad, I think, in both a technical and a moral sense-Fuller is intermingling the two), although a legal system for all that; but fail to achieve its duties, which prescribe "the indispensable conditions of law," and the result is not a legal system. This conclusion necessarily follows from Fuller's underlying characterization of law in terms of rules guiding human conduct.'9 For this entails, among other things, that there be knowable, intelligible, and prospective rules. Hence, for example, one can no more have a legal system consisting entirely of retroactive laws (i.e., fail totally to observe the duty to minimize retroactive laws) than one can have air pressure in a perfect vacuum.20 Anyone who totally fails to meet one, or more, of the demands of IML may perform governmen15. Ibid., p. 49. 16. Ibid., p. 104. Cf. Anatomy, p. 166: "The basic rationality of law cannot be that of logic or geometry; it must be like that of an economic calculation-'all things considered, and weighing costs against advantages, X is better than Y.' " 17. Morality, p. 93. On these unavoidable limits, see further Anatomy, pt. 1, "Pervasive Problems of the Law" (summarized on pp. 58-59). 18. Morality, p. 39. 19. E.g., "the only formula that might be called a definition of law offered in these writings law is the enterprise of subjecting human conduct to the governance of rules" (Morality,p. 106). This does not commit Fuller to saying, nor would he say, that law consists solelyof rules. 20. Morality, p. 53.
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tal or official acts, but he cannot make law.2' Thus does Fuller, to put it for the moment in terms which he would not use, formulate a necessary connection between law and morality via IML. The novelty of his position, as regards both its emphasis on IML and its characterization of that morality, should be noted, for it requires a restatement of the dispute between legal positivists and natural law thinkers concerning law and morality. That dispute tends to be seen in terms of legal form, or validity, versus moral content, or legitimacy. Positivists assert that whatever has the valid form of law is law, regardless of the morality or immorality of its content; natural law writers deny that form alone is enough, there must also be morally good or at least not morally bad content. Now, Fuller does not oppose positivism along that line, since in his terms questions about the content of laws have to do with the externalmorality of law (though of course it is open to him to think this an important matter too). His case concerns a morality internal to law itself, and is, translated (not without distortion) into the familiar terms just used, that form and content are not separable in the way that both sides to the dispute assume, but are necessarily connected: the form of law is itself morally good. (This will be radically restated in Section V, in his own terms.) Fuller himself conceives his position to be a variety of natural law, describing it as "a procedural, as distinguished from a substantive natural law," dealing with the construction and administration of law.22 But his natural law terminology should not be allowed to obscure his originality.
21. Incidentally, one may be surprised that Fuller contemplates 'government' without 'law.' (In his allegory, for instance, Rex is "king"although he "never even succeeded in creating any law at all" [Morality, p. 34]; and even where there is no law to be faithful to, Fuller says people retain respect for the instituted authority [ibid., p. 41].) To a legal positivist like Austin, of course, this would be "ridiculous and absurd," since he in effect defines law as what the government enacts or permits, so that if there is a government making (general)enactments, then there must be law. However, the positivist reaction begs the very question which Fuller is raising, namely, whether the criterion of "law" is government enactment or something else. The idea of government but no law seems odd because if there is no legal system at all, how can there be king, or official act, or instituted authority, or any such thing? Probably the answer is that Fuller regards government established by law and acting through law as only one species of government; he says at one point: "We are talking, not about control or power over people generally, but about a particular kind of control or power, 'that obtained through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" ("A Reply to Professors Cohen and Dworkin," p. 657). But we need further explanation of species of government independent of a legal system. 22. Morality, pp. 96-97. For his views on traditional natural law, see pp. 96-106; also see Fuller's TheLaw in Questofitself (Chicago, 1940), pp. 100-101, and Anatomy, pp. 162-64. Fuller's novelty is also discussed by K. G. M. Graham, "Does Law Have an Inner Morality?"Political Science24 (1972): 25-26, 28. C. L. Palms thinks that Fuller's approach to natural law (which he expounds in the second part of his article) complements traditional views ("The Natural Law Philosophy of Lon L. Fuller," Catholic Lawyer 11 [1965]: 117, 137). G. Anastaplo, on the other hand, emphasizes the differences between natural law theory and Fuller, whom he depicts as "the step-child of a positivist age" who is more influenced by legal positivism than he realizes ("Natural Right and the American Lawyer: An Appreciation of Professor Fuller," Wisconsin Law Review [1965], pp. 322-43, sec. 3). For a sympathetic examination of the various senses in which Fuller is a natural law theorist, see D. Sturm, "Lon Fuller's Multidimensional Natural Law Theory," Stanford Law Review 18 (1966): 612-39. Both Palms and Sturm argue that Fuller has a substantive as well as a procedural natural law theory. Sturm and, especially, Palms draw on a wider range of Fuller's writings than this article does.
3 12 Ethics The importance of Fuller's thesis is obvious. If it is correct, it must alter our whole outlook on law and morality. It is time, therefore, to examine the arguments of his critics, who allege that the thesis is patently false.
III. SOME CRITICISMS
Not all Fuller's critics state his position in the same way. Indeed, some are unsure quite how it is to be stated. However, they agree that Fuller is making two claims: first, that lawmaking requires obedience to IML, and second, that therefore there is a necessary connection between law and morality. They also agree that the first claim is basically uncontroversial, and that lawmaking does require obedience to IML or something like it. And they all believe that the second claim is unacceptable. The principles of IML are not moral principles, and following them is not moral action; so there is no necessary connection between law and morality. I shall now list what I regard as the main criticisms found in Hart, Dworkin, Cohen, and Summers, the opponents to whom Fuller pays most attention.23 1. Fuller confuses morality with efficiency. Hart argues24that the principles of IML are not moral principles but principles of good craftsmanship, which are "independent of the law's substantive aims just as the principles of carpentry are independent of whether the carpenter is making hospital beds or torturers's racks." To call such principles moral, "perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. ('Avoid poisons however lethal if they cause the victim to vomit,' or 'Avoid poisons however lethal if their shape, color, or size is likely to attract notice.') But to call these principles of the poisoner's art 'the morality of poisoning' would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned." So too Cohen: "It is misleading to think of these principles as constituting a morality-inner or otherwise. Is there an inner morality of carpentry or of murder? Does the carpenter abjure some moral principle when he builds a cabinet larger than the room for which it is meant; is the potential killer morally culpable for failing to heed the rule that a killer ought to load his gun? Surely, we must separate the question of competency from the question of morality."25As Summers puts it, the principles of IML "may be viewed as 'maxims of legal efficacy' and maxims of this nature are not, as such, conceptually connected with morality. If a person assembles a machine inefficiently, the result is inefficiency, not immorality. "26
23. Morality, pp. vi, 197-98. 24. Hart (n. 2 above), pp. 1284, 1286. See also Hart's "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958): 593-629, sec. 5, and The Conceptof Law (Oxford, 1961), pp. 195-98 and esp. 202. 25. M. Cohen, "Law, Morality and Purpose," VillanovaLaw Review 10 (1965): 651. 26. Summers (n. 6 above), p. 129. S. I. Shuman, LegalPositivism:Its Scopeand Limitations (Detroit, 1963), pp. 89-90, 93, gives a version of criticism (1).
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2. In support of the first criticism, the fact is widely cited that observance of IML is, in Hart's words, "unfortunately compatible with very great iniquity."27 That is, you can meet the requirements of IML and make morally bad laws; so there cannot be a necessary connection between law and morality in the form of IML. 3. It is true that ignoring the requirements of IML can lead to moral wrong, but this does not entail that the requirements express moral principles; the immorality arises from violating some other principle, which is a moral principle. Dworkin writes: "It is morally wrong for an official to harm a citizen groundlessly, to insult him unfairly, or to accuse him unjustly. The occasions of defying the canons which involve such acts are occasions of moral wrongdoing, but they are so because they have these consequences and not because the canons are themselves moral standards. When failure to meet the canons does not involve such consequences, it has no moral flavor at all."28 Summers writes: "A way to violate a moral principle is not itself a moral principle. In the appropriate circumstances, we could violate a moral principle merely by looking out a window. But we should not be led by this to say that there is a moral principle against looking out windows. "29 4. Dworkin also produces a rather different line of argument.30 He contends that even if one were to accept that the requirements of IML do express moral principles, and that lawmaking requires some compliance with them, "it does not follow that lawmaking requires compliance with moral principles." That is, even if IML were a morality, one could make law without acting morally. For "not every act which in some literal sense falls under a principle is a case of observing it. . . . Sending a carefully worded ransom note to a kidnap victim's parents is not (adhering to a moral code of) giving fair warning." He continues: This is not the placeto attempta full expositionof the circumstances underwhich behaviorthat coincides with a principlecan be regardedas in compliancewith it. Broadly,however,such behavior does not constitutecompliance with a moralprinciple when that principlewould not, if offered,constitutea moralreasoncountingin favorof the behavior.When we reportthat a personhas observeda moralprinciple, we make a moralclaim about what he has done, althoughwe do not necessarily claim-this dependson otherfactors-that he has actedout of respectfor the principle, or that he deservesany praisefor having done it, or even (since othermoral principlesmay count againsthis act)that he ought to have done it. This "fact about the vocabulary and logic of our appeals to principles" shows the falsity of Fuller's claim that lawmaking necessarily involves some mini27. Concept, p. 202; cf. Hart, "Book Review" (n. 2 above), p. 1288. The same point is made by the other critics under discussion, and also by Shuman, p. 136; J. N. Shklar, Legalism (Cambridge, Mass., 1964), P. 109; and G. Hughes, reviewing Morality, Stanford Law Review 17 (1965): 552-53. 28. R. Dworkin, "Philosophy, Morality, and Law-Observations Prompted by Professor Fuller's Novel Claim," Universityof Pennsylvania Law Review 113 (1965): 674-75. 29. Summers, p. 130. 30. Dworkin, pp. 675-76.
3 14 Ethics mal observance of moral principles. "A tyrant who legislates to enslave some minority must make his laws clear and capable of performance, but in doing so he is not observing moral principles of fairness and decency, because such principles do not offer even a shred of moral argument in favor of what he is doing." Were Fuller right, we should have to talk of the "internal morality" of blackmail or genocide. Thus, the critics take Fuller to be claiming that IML shows that there is a necessary connection between law and morality. Whether Fuller would put his claim in quite their terms is another matter. Nevertheless, the critics seem to have raised formidable objections.
IV. FURTHER CRITICISMS
The very strength of the objections to seeing IML as moral leads one to ask upon what grounds Fuller believes that it is moral. Naturally, the critics have posed the same question, and have rejected Fuller's reasoning, along lines similar to those used in the criticisms just listed. It will help in grasping the full extent of the conflict between Fuller and his critics, if we consider his supporting arguments and some of the criticisms made of them. Fuller discusses two principal grounds for his speaking of law's internal morality.First, "there is a kind of reciprocity between government and citizen with respect to the observance of laws."3' The citizen has a prima facie moral obligation to obey the laws, and the lawmaker has a reciprocal moral obligation to make laws which can be obeyed. IML states these "tacitly understood" moral obligations or "responsibilities" of the lawmaker. The point is that the lawmaker can abuse the law, and is "subject to a constant temptation to cheat on the system, and to exercise a ruleless power under the guise of upholding a system of rules;"32and that a moral commitment to resist the temptation is "implicit in the concept of law."33 But the critics are unimpressed by this reasoning. Dworkin, for instance, argues that although clarity and the other qualities required by IML are necessary conditions of making obedience possible, this entails neither a moral obligation to obey the law nor a moral obligation to meet the requirements of IML.34 Fuller's second. ground is that IML overlaps with the external morality of law, so that "a proper respect for the internal morality of law limits the kinds of substantive aims that may be achieved through legal rules."35 IML "is, over a wide range of issues, indifferent toward the substantive aims of law and is ready to serve a variety of such aims with equal efficiency," provided only that it can "maintain its internal integrity"; but this "should
31. Morality, p. 39. On this point, see pp. 39-40, 64, 91, 132, 138-39, 216-21; also Anatomy, pp. 87-97. He notes that the "positivist creed" refuses to view law in this way, i.e., as "interaction"between lawmaker and citizen (Morality, p. 193). 32. "A Reply to Professors Cohen and Dworkin," p. 657. On the temptations facing lawmakers, see, e.g., ibid., pp. 659-61; Morality, pp. 212-14; and Anatomy, pp. 36-40. 33. Morality, p. 216. Law Review 10 (1965): 631-39, at p. 635. (Pt. 1 34. "The Elusive Morality of Law," Villanova is an excellent summary of his points in "Philosophy, Morality, and Law.") Cf. Cohen, p. 654. 35. Morality, p. 4. On this see chap. 4, passim; also pp. 96-97, 131-32.
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not mislead us into believing that any substantive aim may be accepted without compromise of legality."36Fuller details four instances of IML working against immoral laws. The requirement of congruence between declared rule and official action excludes laws which are not enforceable, for example, in some circumstances, laws prohibiting contraception or homosexuality. The requirement of promulgation forces lawmakers to assume publicly responsibility for their laws and thereby encourages them to frame just laws. The requirement of intelligibility cuts out laws whose target cannot be clearly identified, for example, "laws attempting to make legal rights depend on race." Finally, and most important, IML always requires that men be treated as "responsible agentss, capable of understanding and following rules, and answerable for [their] defaults." Once more, however, the critics are unconvinced. They cannot see that morality has to come into the account of law. As Summers puts it: "What may tend to secure moral goodness is surely not by itself moral."37 Dworkin says: "Fuller's arguments assert, at best, that it is easier and politically less dangerous to make or enforce good law than bad law."38 The argument that the requirement of intelligibility makes for just laws comes under particular attack. In Hart's words, Fuller "shows only that the principle that laws must be clearly and intelligibly framed is incompatible with the pursuit of vaguely defined substantive aims, whether they are morally good or evil. . . . There is therefore no special incompatibility between clear laws and evil. Clear laws are therefore ethically neutral though they are not equally compatible with vague and well-defined aims. 39 Fuller has taken up these points.40 He emphasizes that he suggested only that "a respect for the internal morality of law will incline thelegislator towardthe making of laws that are just in their substantive aims" (italics added). He thinks "we must distinguish between logical consistency and what may be called motivational affinity or compatibility in the pursuit of similar ends." His position is not that "there is any logical contradiction in the notion of achieving evil, at least some kinds of evil, through means that respect all these demands of legality," but that "coherence and goodness have more affinity than coherence and evil," and that there is an affinity between rationality and morality. In support of this, he points out that life depends on order, and that morality is required in order to protect both; that men can extend order by creating rules, and thereby enrich their lives; that the child's intellectual and moral capacities develop more or less contemporaneously; and that order, to be effective, requires respect. None of this, even if they accepted it, would satisfy Fuller's critics, for they are only interested in being shown a logically necessary connection between law and morality, and this he admits does not exist in this case.
36. Ibid., p. 153. 37. Summers (n. 6 above), p. 128. 38. "Philosophy, Morality, and Law," p. 672. Hughes agrees (n. 26 above), pp. 552-53. 39. "Book Review" (n. 2 above), p. 1287. Cf. Dworkin, "Philosophy, Morality, and Law," pp. 672-73; and Summers, p. 128. 40. "A Reply to Professors Cohen and Dworkin," pp. 661-66.
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There is another ground which might be offered for asserting that IML is moral, though Fuller himself does not mention it. It is implicit in his account, as some have noted,41 that it would be unjust to punish a man for breaking a law when the breach was not his fault but due to the lawmaker's failure to observe the requirements of IML. For instance, it would be unjust to punish a man for not obeying a secret law. But since it would be unjust to act in that way, must it not be just to act in the opposite way, that is, to observe IML; and therefore must not IML, besides expressing conditions of effectiveness, also require actions good in themselves? There are obvious difficulties in such an argument. The most that follows from the injustice of punishing a man for breaking a secret law is the justice of not punishing him for it. It does not follow that it is just to make laws public. The argument is also exposed to criticisms of the kind mounted against the two other grounds: whether a law is "followable" is not necessarily connected with its goodness. An evil law could be followable: would that make it just to punish disobedience of it? In other words, yet again the case against Fuller would be that failure to observe the requirements of IML simply produces defective, not immoral, laws; that to make effective (in this case, followable) laws is not necessarily to make just laws; and that therefore the principles of IML are not moral principles. At this point, stalemate seems to have been reached. The critics reject Fuller's position and the arguments which he deploys to support it, while Fuller appears to be undisturbed-and to think his position undisturbed-by their criticisms.
V. FULLER S ASSUMPTIONS DEFENDED
The disagreements between Fuller and his critics hinge upon basic assumptions. It is clear that the critics regard law as nonmoral, and that they believe, in Fuller's words, "that the existence or non-existence of law is, from a moral point of view, a matter of indifference."42Their position only makes sense on these two assumptions. Consequently, when Fuller speaks of the between morality morality of law, they take him to be asserting a connection and law; and since for them law is nonmoral, they inevitably charge him with jumping from "is" statements about law to "ought" statements about morality. Almost all their criticisms depend upon an invocation of a version of the fact-value dichotomy. Fuller, on the other hand, starts from the assumption that law is morally good. He is not, therefore, so much trying to establish some connection between law and morality as to show that they are already one in some respects. Hence he finds that fact-value dichotomy irrelevant. If this contrast between the assumptions of Fuller and his critics has been accurately portrayed, it helps to explain how he and they are at crosspurposes. They do indeed, as was initially suggested, work from different starting points. But it remains to ask what precisely Fuller's fundamental
41. Esp. D. Lyons, "The Internal Morality of Law," Aristotelian Society Proceedings (1971-72), pp. 105-19. 42. Morality, p. 204.
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assumptions about law are, and whether they are justifiable. These are not easy questions. One problem is that Fuller is continually disputing distinctions which are central to his opponents' case, and which are so familiar that it requires great effort to reconsider them and their value. The outstanding example is the critics' reliance on the fact-value dichotomy. Fuller would agree that a rule is a prescriptive as opposed to a descriptive statement; that an existing rule may not be what it ought to be; and that an "act of legislative judgment" has to intervene between knowing that a duty exists and concluding that it ought to exist.43 However, he claims that the distinction between fact and value does not always apply. It is inadequate when applied to the observation of human actions and institutions.44 In order to understand an action it is necessary to understand the actor's purposes. This means that fact and value "merge," for the observer participates in the process of evaluation by which the actor rejects as "bad"what does not contribute to the achievement of his purposes, and retains as "good" what does; the observer is not merely "describing,"he is also, necessarily, "evaluating."Nor is the observer simply evaluating means relative to an end which is taken for granted, for means and ends interact and there is continual evaluation of the end, too. In the case of social institutions, such as law, the observer is faced by "the collaborative articulation of shared purposes." The common law, for instance, has developed through collaboration over time of many judges to improve and refine its rules; and in such a process, one also reaches a better idea of its ends. It is impossible to "describe" a rule of the common law without choosing between, "evaluating," alternative statements of the rule. And it is impossible to "describe" a legal system without evaluating the degree to which it meets the ideals of promulgation and so on. Does this epistemological move by Fuller undermine his critics' objections? Has he established that the fact-value dichotomy cannot be invoked against him? The critics think not. Suppose it is accepted that, as many have argued, the "description" of human actions and institutions does require knowledge of the actor's purposes:45in what sense is this a "merger of fact and value"? His critics argue that Fuller has not shown that description requires moralevaluation, which is what the fact-value dichotomy is usually taken to exclude. Shuman, for example, writes:46"What is of striking interest
43. Although he does not think that what applies to duties is also true of aspirations, since part of grasping an aspiration is to understand that one ought to try to achieve it. See Morality, pp. 13-15. 44. E.g., "Human Purpose and Natural Law," Journal of Philosophy53 (1956): 697-705, reprinted in Natural Law Forum 3 (1958): 68-76; and "A Rejoinder to Professor Nagel," Natural Law Forum 3 (1958): 83-104, esp. pp. 86-92. Cf. TheLaw in Questof Itself, pp. 5-11, 138-40; and "American Legal Philosophy at Mid-Century," pp. 468-73. 45. Not all Fuller's critics would allow this supposition. E. Nagel denies that description involves evaluation in any sense ("Fact, Value, and Human Purpose," Natural Law Forum 4 (1959): 26-43, and "On the Fusion of Fact and Value: A Reply to Professor Fuller," ibid. 3 (1958): 77-82). Cohen thinks that law can be defined without any reference to purpose: [n. 25 above], pp. 647-48). 46. Shuman (n. 26 above), pp. 77-79. Cf. G. Nakhnikian, "ProfessorFuller on Legal Rules and Purpose." WayneLaw Review 2 (1956): 190-203.
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. . . in all the illustrations Fuller has used to demonstrate the point is the complete absence of any moral element in the evaluation which is thought to be required in order to understand the actions observed." Fuller confuses the "efficiency" sense of "ought" with the moral "ought." To know someone's purposes is quite different from knowing whether they are morally good purposes. As Hughes says: "Purposes may be good or bad; purposes of legislature and judge my clash. At best we can view the legal world as a battlefield of conflicting purposes in which clashing interests and viewpoints vie for dominance."47Elsewhere, Hughes notes that while it is often useful to define in terms of fitness for a purpose, the purpose may be one which is morally objectionable. "So if there is some sense in speaking of this sort of definition as indicating a merger of fact and value, it certainly does not mean the same as the merger of the 'is' and the 'ought,' if by 'ought' is meant a value judgment about those goals and aims which it is right and proper for man to pursue."48 It would seem that this is yet another instance of what has been the problem all along, namely, how to insert morality into law; and that Fuller has once again committed what Cohen calls his "besetting sin" of confusing any evaluation with moral evaluation.49 The mistake which is here attributed to Fuller is so elementary that one should hesitate before accepting that he has made it. In order to examine this and the other objections to Fuller properly, it will help to adopt his fundamental assumptions for a moment. It will then become apparent that, and apparent why, from Fuller's point of view, the sharp tools of his critics' analytical philosophy do not cut his account of law and morality to shreds but slash harmlessly at empty air. Fuller's basic assumption, so basic that it is probably insufficiently emphasized, is that law per se is morally good. Without law, morality would not be possible. He writes, for instance, of of moralityin the the role legalrulesplay in makingpossiblean effectiverealization cannotfunctionin a socialvacuum of humanbeings.Moralprinciples actualbehavior morethangood or in a warof all againstall. To live the good life requiressomething it requires the supportof firmbaselines intentions,even if they aregenerallyshared; for human interaction,somethingthat-in modernsociety at least-only a sound legal system can supply. is aboutas trite an exampleof a moral "Do not take what belongsto another" preceptas can be foundin the books.But how do we decidewhatbelongsto another? To answerthat questionwe resortnot to moralsbut to law.... the moralprecept borrowedfrom the law; without supportit ... must of necessityrest on standards could not achieverealityin the conductof humanaffairs. Again, all would agree, I suppose, that the institutionof marriagehas moral implications-indeed, many of them. But this institution can scarcely function
47. Hughes (n. 26 above), p. 558. So too Nagel, "On the Fusion of Fact and Value," p. 81. 48. Hughes, "The Existence of a Legal System,"New YorkUniversityLaw Review 35 (1960): 1024. 49. Cohen, pp. 644-47.
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-morally or legally-without some fairly definiterule that will enableus to know when the maritalstate exists.50 And elsewhere he writes: "For men to live together successfully they need rules that will keep peace among them, make them deal justly with one another, and enable them to collaborate effectively.5' It is the legal system which provides such rules, rules which are the foundation of morality. Law and morality are inseparable. Law is morally good: it brings mutual benefits to those who share in its cooperative enterprise. And therefore the purposes of lawmakers, who seek to achieve these effects, are morally good. "Law is a product of human effort, and we risk absurdity if we try to describe it in disregard of what those who brought it into being were trying to do."52 In other words, rather than attempting to connect law and morality in some way, Fuller starts from the assumption that law is morally good. And this meets the objection that he confuses any purpose with moral purpose, and any evaluation with moral evaluation, for in the case of law it follows from this assumption that we are alreadydealing with moral purposes and moral evaluation. Of course, objections can be made to Fuller's premise that law is good: these I shall come to shortly. But first, it should be noted that Fuller's approach cannot be rejected out of hand, and that, paradoxically, its strength is revealed by his critics' arguments. In a way, the critics have shown too much. What they have shown is not so much the difficultyof establishing "a Any atnecessary connection between law and morality" as its impossibility. tempt to make such a necessary connection must be open to the critics' repeated appeal to the logical gap between statements of law (fact) and of morality (value). All that can possibly be established are contingent connections, for instance, that lawmakers may be influenced by their moral views when making laws; that these connections exist is admitted by all parties to the dispute, and they are not in question. In short, the critics are asking Fuller to do something which on their own showing is impossible. And the only means of evading the critics' gap between fact and value lies in putting the matter in the completely different way in which Fuller does. It is useful here to refer to the controversy in recent moral philosophy concerning the derivation of 'ought' from 'is.' Searle has argued that one can move by appropriate descriptive steps from "Jones uttered the words 'I hereby promise to pay you, Smith, five dollars' " to "Jones ought to pay Smith five dollars."53Now, in my view, what this kind of argument shows is not that an 'ought' statement can be deduced from 'is ' statements, but that there is a class of statements relating to social institutions or practices, such as promising, where the fact-value dichotomy is inapplicable. In this class, we
50. 51. 52. 53. Morality, pp. 205-6. Anatomy, p. 14. Ibid., p. 161. Review 73 (1964): 43-58. J. R. Searle, "How to Derive 'Ought' from 'Is,' "Philosophical
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start with statements which merge fact and value, in the sense that they are classifiable as neither factual nor evaluative, and in which value statements are analytically contained. For example, undertaking a prima facie obligation to keep the promise is part of the meaning of 'I promise.' Promising is not the kind of institution to which one chooses to subscribe or not; one decides whether to make particular promises, but one cannot decide to subscribe to promising, any more than one decides to be a language user. To say 'I promise to x' is, ceterisparibus, to put oneself under an obligation to x, and one would be held to be under the obligation even if one claimed later that "I do not myself believe that promising involves an obligation and do not regard myself as under any obligation." I suggest that Fuller can best be understood as treating law in something of the same way, so that the dichotomy between fact and value does not apply to it. According to Fuller, as was seen, law is good (not, ought to be), and it has a moral purpose (not, ought to have). So, understanding law is not simply an evaluative matter. But neither is it simply factual, for understanding law involves applying moral standards. It is not sufficient to detail its logical structure, in the legal positivist manner; the moral dimension of law's value must be added. To exclude that dimension, as being "evaluation"and not "description," would be as much of a distortion as to "describe" promising without including the notion of obligation.54 The consequences of this view are obvious. Once accept that law is moral, and there is no logical fallacy in taking IML as moral. Since Fuller's basic assumption would make his arguments logically valid, it becomes all the more important to ask whether the assumption is well founded. At first glance, it seems vulnerable to counterexamples of four kinds. If law is good, how can one account for (1) a morally bad law, (2) a law which ignores the requirements of IML, (3) a morally bad legal system, and (4) a legal system which ignores the requirements of IML? I think that Fuller can meet all these points. 1. Fuller agrees that there are laws which, even though in accord with IML, are morally bad.55 This is because the internal and external moralities of law only overlap, and do not coincide. But this admission does not damage his position, which concerns morality and the law, not particular laws.56 He is not dealing with the same problem as concerned legal positivists like Austin, who meant a law when he is reported to have said "the existence of law is one thing; its merit or demerit is another."57The existence of an evil law counters a thesis that "all laws are good" but not Fuller's thesis that "law is good." 2. Again, Fuller agrees that there are laws which offend against IML.
54. I hesitate to call this a "teleological" stance, although Fuller uses that word in passing (Morality,p. 147), because it means different things to different people. 55. See, e.g., Morality, pp. 4, 47, 154; and preceding section of this paper. 56. The distinction between the law and a law is implicit throughout Morality, and explicit elsewhere, e.g., "A Rejoinder to Professor Nagel," pp. 90-91, and Anatomy, pp. 16-20. or thePhilosophy of PositiveLaw by theLateJohn onJurisprudence 57. R. Campbell, ed., Lectures Austin, 5th ed. (London, 1885), 1:214.
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His writings are full of examples, and of the great difficulty of avoiding all such offences. But his thesis here, as was seen in Section II, is that there is only a failure of law if every particular law in the legal system ignores one or more of the demands of IML. A particular law can fail the test of IML and still be a law, presumably because it is part of a system of law which generally does meet the requirements, just as Kelsen accounts for inefficacious laws within an efficacious legal system.58 Once more, no counterexample to Fuller's thesis has been produced. 3. It might be felt that the replies to points 1 and 2 are not entirely satisfactory because it is difficult to see how law can be viewed as good at the same time as it is admitted to contain immoral elements. This difficulty comes to a head with the third kind of counter-example. Fuller accepts as a logical though unrealistic possibility a legal system which is evil but observes IML.59 How can he admit this, and still say that law is good? Part of the answer lies in Fuller's doctrine of degrees in the existence of law, mentioned in Section II. He thinks of legal systems in terms of a range of instances, each system placed according to the extent to which it meets the demands of IML. At the top, and never found in practice because "some degree of 'pathology' attends all legal systems,"60 would be a just legal system meeting all the demands of IML, including its aspirations, to the full. At the bottom would be one which met only the duties imposed by IML. Dworkin objects to the very idea of a range of cases, asserting that "law" is not almost always a matter of degree, as "bald"is, but only at its unclear edges, like "river."61 But he has given no reason for his assertion, whereas Fuller, as we saw, has embedded his view into the whole structure of his argument. On Fuller's view, a law which is clear, publicized, and so on, but promotes evil ends, is part good and part bad. A legal system which was wholly devoted to evil ends would be bad, but good to the extent that it was a legal system. This way of putting it reflects life's complexities. A man may be truthful and evil, and he is better than someone both evil and untruthful. Or a man may display noble loyalty to a bad cause. Human actions are seldom wholly bad or wholly good. Likewise, laws and legal systems are usually a complex mixture, of varying strengths, of good and bad. And a legal system, even were its ends wholly evil, would still be good to some degree, because it would necessarily be observing at least some of what IML demands. The fine but foolish Rex makes no law, while the wicked but wily tyrant does, and his evil laws are good to some extent. 4. How can law be said to be good, in the face of a legal system which altogether ignores IML? The simple answer is that no such legal system is possible. If there is a total failure to meet one or more of the demands of IML, then there is nothing that can properly be called a legal system. This of
58. 59. 60. 61. Anatomy, pp. 16-20 (Kelsen is not named). Morality, p. 154, and "A Reply to Professors Cohen and Dworkin," p. 664. Morality, p. 157. "Philosophy, Morality, and Law," pp. 677-78.
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course means that Fuller is stating a tautology: it is true by definition that every legal system observes IML to at least a minimum extent (and is therefore moral to some degree) because anything that does not so observe IML is not called a legal system. But to identify a tautology does not mean that it can be dismissed. It may tell us something important. Moreover, Fuller is not providing his own stipulative definition of 'law,' but reflecting ordinary hence the usage. Law is indeed thought of as something good, ceterisparibus; sense of shock when the opposite is stated. At worst, it is no more groundless to say that law has a moral purpose than to say that it has not, while in fact, as 'law' is used, there are better grounds for the former view than the latter. In brief, my argument is that Fuller rests his case on the fundamental assumptions that law is good, a purposive cooperative enterprise between ruler and subject, and that this goodness is law's primary feature. There are other elements in law, such as sovereignty, but these should not be looked at to the exclusion of moral purpose (as legal positivists do, according to Fuller). There are tyrants and bad laws and bad legal systems, but these are pathological and untypical, and only intelligible as such. The goodness and moral purpose of law are simply part of its meaning, just as obligation is part of the meaning of promising. Bad laws no more affect the argument than do bad promises.
VI. REPLYING TO THE CRITICS
Having gained a fuller picture of Fuller's position and its strengths, it is time to reexamine and assess the criticisms of it. It will be seen that if Fuller's assumptions are accepted, the criticisms are misdirected and lose much of their force. First, it was contended that the demands of IML are not moral demands but nonmoral principles of good craftsmanship, and that Fuller confuses efficiency with morality. But Fuller does not recognize this split between morality and efficiency. He believes that you can be efficient or inefficient in moral action. He is fully prepared to accept the comparison of lawmaking to a craft, himself citing carpentry.62 IML states the "proceduralnatural laws" which must be followed if lawmaking is "to be efficacious and at the same time remain what it purports to be,"63 that is, if law is to achieve its moral purposes. It has been objected that even if law is good, IML is simply the means to it, and that means to a good end are not necessarily moral themselves.64 But following the procedures prescribed by IML is not a means to making'law; it is, and it alone is, to make law. The requirements of IML are not preconditions of lawmaking but constitutive of it. So that if lawmaking is a moral activity with moral purposes, as I have argued in the preceding section Fuller is right to assume, then IML, which states the principles of the activity, must state moral principles. Of course, unless care
62. E.g., Morality, pp. 96-97, 155-56; cf. p. 43. 63. Ibid., p. 97. 64. Cohen, pp. 651-52; Summers, pp. 127-28.
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is taken, the principles of IML are so formulated that they are not readily recognizable as moral principles (for example, "makeclear laws"). We tend to expect every moral principle to take the form of "you ought to keep your promises," to be, so to speak, a substantive moral principle. But in fact ordinary morality too has procedural principles-for instance, that in making a promise one ought to state clearly and exactly what obligation one is undertaking. It does not seem possible to say that one kind of principle is primary and the other secondary and not properly moral, for they are interdependent: you cannot explain what the "substantive"principle of promising is except by elucidating its "procedural"principles. In the same way, the procedural principles of IML are an inextricable part of law, and since law is moral so too are they. It should also be noted that Fuller has mounted a counterattack against this first criticism, charging that his critics' notion of "efficacy"collapses into one of morality.65 As for the point that observing IML is "compatible with very great iniquity," this was argued in the preceding section not to affect Fuller's position. Second, it was contended that the principles of IML only seem moral because violations of them can also be violations of other principles which are moral principles. Fuller has taken up this point himself, accusing Dworkin of example, "keep promabstraction. General moral principles-for ises" -may mean different things in different contexts, so that a morality of law does not simply restate moral principles but gives them special application.66Dworkin, in turn, has replied that this does not meet his point. He agrees that "there is a morality particularly concerned with law and its enforcement" but denies that IML states the principles of this special morality of law.67 However, if Fuller's reasons, stated above, for regarding IML as moral are accepted, Dworkin's argument here is not incompatible with Fuller's. A lawmaker's act could be immoral bothbecause it breached a moral principle of IML and because it breached some other moral principle. Dworkin's point does not conflict with Fuller's account, can supplement it, and cannot itself serve as a criticism of it. Third, it was contended that IML imposes no moral duties on the lawmaker. But on Fuller's assumptions, IML is moral and does impose moral duties (and provide aspirations). Of special importance here is a distinction which he has drawn in the second edition of TheMoralityof Law, between law and "managerialdirection."68 A manager has to observe most of the principles of IML for his orders to be effective. But not all its principles; not generality, and not, above all, congruence: In actualpractice controlis normally achieved ordersthatwill by standing managerial relievethe superiorfrom havingto give a step-by-stepdirectionto his subordinate's
65. 66. 67. 68. See Morality, pp. 202-4. "A Reply to Professors Cohen and Dworkin," p. 659. "The Elusive Morality of Law," pp. 636-37. See esp. pp. 207-16. My account greatly simplifies Fuller's.
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has no justification performance. But the subordinate for complaintif, in a particular case, the superiordirects him to depart from the procedureprescribedby some order.This means,in turn,thatin a managerial general relation thereis no roomfor a formalprincipledemanding that the actionsof the superiorconformto the rules he has himselfannounced; in this contextthe principleof "congruence betweenofficial actionand declaredrule"loses its relevance.69 Managerial direction fits the legal positivists' picture of a one-way projection of authority. But "with a legal system the matter stands quite otherwise, for here the existence of a relatively stable reciprocity of expectations between lawgiver and subject is part of the very idea of a functioning legal order."70 We may sum up Fuller's distinction by saying that managerial direction is a matter not of morality but of efficiency, a relation between superior and subordinate governed by expedience alone; whereas law has a moral dimension in addition. In Fuller's words: "Law is not, like management, a matter of directing other persons how to accomplish tasks set by a superior, but is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another."'71 Both law and management have internal principles of efficiency, but only law has internal principles of efficiency in morality. What the critics-have done, here as elsewhere, is to argue in terms suited to management rather than to law. There is justice in Fuller's claim that "the main ingredients of their analysis are not taken from law at all, but from . . . managerial direction."72 If we are to understand "the purposive effort that goes into creating and maintaining law," then, writes Fuller: that many of its characteristic We must understand problemsare moralin nature. Thus, we need to put ourselvesin the place of the judge faced with a statuteexan tremelyvaguein its operativetermsyet disclosingclearlyenoughin its preamble objectivethe judge considersplainly unwise. We need to sharethe anguishof the who at 2:00A.M. says to himself,"Iknowthatthis hasgot wearylegislative draftsman to be rightand if it isn'tpeoplemay be hauledinto courtfor thingswe don'tmeanto cover at all. But how long must I go on rewritingit?"73 In short, whatever the case with managerial direction, the internal principles of lawmaking (IML) are moral principles and impose moral duties. Fourth, the criticism that IML has no necessary substantive implications has already been covered. It is misplaced. Fuller accepts it, and, as was seen, he can do so without damaging his case, since that rests on the nature of law, not the content of particular laws. Fifth, as to the argument from the injustice of punishing a man when the fault lay with the lawmaker's breach of a requirement of IML, once IML has
69. 70. 71. 72. 214-16. 73. Morality, pp. 208-9. Ibid., p. 209. Ibid., p. 210. Ibid., p. 214. The accusation is elaborated by applying it to Hart's position, pp. Ibid., p. 107. Cf. p. 223.
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been accepted as moral on other grounds, it can be seen that it is indeed unjust to punish such a man. And of course Fuller would accept that the fact that a law is "followable" does not entail that it is good. The point about punishment is a consequence of IML being moral, not a ground for establishing that IML is moral. Finally, we come to the only criticism which does not pivot on the fact-value dichotomy, and which therefore has not yet been met at all. It was contended that even if one agreed that the principles of IML are moral and that lawmaking requires some compliance with them, it does not necessarily follow that lawmaking requires compliance with moral principles, because not every act which coincides with a moral principle complies with it. For instance, a well-publicized, clear, and prospective law promoting genocide would coincide with the moral principles of promulgation, clarity, and so on, but would not comply with them because those principles can provide no justification for the law. How useful is this distinction between action which complies with and action which coincides with a moral principle, and can it be turned into a criticism of Fuller? Consider first a comparable nonlegal case. A kidnapper who has said that, unless he receives the ransom, he will send his captive's ear to his parents, does as he said: obviously, not in order to do his duty and keep his word but to ensure that his threats will be taken seriously. There are two possibilities. Either we deny that the kidnapper made a "promise"at all (which seems the correct alternative). Or we can say that there was a promise but that the kidnapper's action coincided with but did not comply with the moral principle that promises ought to be kept. If we take the latter alternative, then it is clear that this is a most untypical kind of promise, and one that only makes sense by contrast with the typical kind. Next, consider the case of the genocide law. Is this a "law" at all? Dworkin thinks it is, and so does Fuller (and, unlike the previous example, the alternative of dismissing it by definition seems less attractive-which may be significant). But Fuller would also argue that it is untypical, and that it tells us nothing about law and lawmaking. Once again, Dworkin is producing a counterexample to the sort of "necessary connection" thesis which Fuller is not concerned to propound. Fuller's thesis, to put it in the present terminology, is that to make law is to comply with the moral principles of IML, although on occasion the lawmaker's act may only coincide with them. But the latter tells us no more about the nature of lawmaking than does the kidnapper's action about the making and keeping of promises. In short, the criticism is irrelevant. Moreover, its very construction concedes the real point at issue, namely, that the principles of IML are moral principles.
VII. CONCLUSION
This discussion has omitted a great deal. Only some of the criticisms made of Fuller have been covered, and it may be that even if these were met, his position could be overthrown by other arguments. Nor has any comparison been made between Fuller's IML and his critics' own positive views, such
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as Hart's "minimum content of natural law." Further, a full examination of Fuller's position would need to include an estimate of, for example, his ideas on the question of the obligation to obey law, and his analysis of legal interpretation. In particular, if this discussion has shown anything, it is that Fuller's IML and his reaction to its critics should be viewed in the context of his general opposition to legal positivism.74 Nevertheless, I hope that enough has been said to demonstrate that Fuller's position on law and morality is not prima facie as implausible as has been widely alleged. He provides a viable alternative perspective on law and morality to that of the legal positivists; in fact, it may be felt to reflect the complexities of social life better. He and his opponents rest their cases on very different assumptions. Which set of assumptions has the greater appeal will depend upon one's view of several fundamental and unsettled philosophical disputes. There are indeed two starting points; and although I do not claim to have shown conclusively that one is to be preferred to the other, I have suggested that one is not as undoubtedly correct, and the other as mistaken, as is sometimes assumed. And whether one accepts or rejects Fuller's position, its importance is clear. He has spent three decades challenging some of the orthodoxies of legal and moral philosophy and has provided great stimulus. On the subject of law and morality, he has not thrown new light on an old question so much as redirected attention to a whole range of fresh questions. He has not set out to show how law and morality are necessarily connected, which assumes that they are separate, but claimed that law qua law is moral. That has been said before, but not quite in this way.

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The Internal Morality of Law: Fuller and His Critics Author(s): Peter P. Nicholson Source: Ethics, Vol.

The Internal Morality of Law: Fuller and His Critics

The InternalMorality of Law

The InternalMoralityof Law

The InternalMoralityof Law

The InternalMorality of Law

The InternalMorality of Law

The InternalMorality of Law

The InternalMoralityof Law

The InternalMorality of Law

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