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Mark Mishin
Mark Mishin

Lon L. Fuller on Law as a Moral Enterprise: The Morality of Law Revised Edition


The Morality of Law: A Review of Lon L Fuller's Revised Edition




Law is not only a matter of rules and commands, but also a matter of morality and justice. This is the main thesis of Lon L Fuller's classic book The Morality of Law, which was first published in 1964 and revised in 1969. In this book, Fuller offers a comprehensive and original theory of law that combines legal positivism and natural law perspectives. He argues that law has an internal morality that consists of eight principles of legality that make law possible and effective. He also contends that law has a substantive morality that reflects the values and ideals that law should promote in society. In this article, we will review Fuller's book and examine his main arguments and contributions to legal philosophy.




Lon L Fuller The Morality of Law Revised Edition



The Two Moralities




Fuller begins his book by distinguishing between two types of morality: the morality of duty and the morality of aspiration. The morality of duty is the basic level of morality that prescribes what people must do or avoid doing in order to respect the rights and interests of others. It sets the minimum standards of conduct that are necessary for social coexistence and cooperation. The morality of aspiration is the higher level of morality that inspires people to pursue excellence and perfection in their personal and professional lives. It sets the maximum goals of conduct that are desirable for human flourishing and happiness.


Fuller argues that both types of morality are relevant for law and legal systems. Law is not only a system of duties that regulates human behavior, but also a system of aspirations that guides human development. Law should not only protect people from harm, but also enable them to achieve their potential. Law should not only restrain people from wrongdoing, but also encourage them to do good.


The Morality That Makes Law Possible




Fuller then proceeds to identify the eight principles of legality that constitute the internal morality of law. These principles are:



  • Generality: Law should be general and abstract, not particular and concrete.



  • Promulgation: Law should be publicized and accessible, not secret and hidden.



  • Non-retroactivity: Law should apply prospectively, not retrospectively.



  • Clarity: Law should be clear and intelligible, not vague and ambiguous.



  • Non-contradiction: Law should be consistent and coherent, not contradictory and incoherent.



  • Possibility of compliance: Law should be possible and realistic, not impossible and utopian.



  • Stability: Law should be stable and predictable, not changing and arbitrary.



  • Congruence: Law should be congruent and aligned, not divergent and discrepant.



Fuller claims that these principles are the minimum requirements for a legal system to be valid and effective. They ensure that law is not arbitrary, irrational, or unjust. They also ensure that law respects the dignity and autonomy of the people who are subject to it. They enable people to know what the law is, what the law expects from them, and what the law will do to them. They allow people to plan their actions, to coordinate their activities, and to challenge the authorities. They create a relationship of mutual trust and respect between the lawmakers and the law-abiding citizens.


The Concept of Law




Fuller then defines law as a purposive enterprise that aims at achieving social order through subjecting human conduct to the governance of rules. He rejects the positivist view of law as a command backed by sanctions, which he considers to be too narrow and simplistic. He argues that law is not merely a matter of coercion, but also a matter of cooperation. Law is not only a system of threats, but also a system of promises. Law is not only a tool of power, but also a tool of reason.


Fuller criticizes the positivist separation of law and morality, which he regards as artificial and misleading. He contends that law cannot be understood or evaluated without reference to its moral purposes and consequences. He maintains that law is inherently moral, not only because it has moral effects, but also because it has moral requirements. He asserts that law is not only a product of morality, but also a source of morality.


The Substantive Aims of Law




Fuller then discusses the substantive values that law should promote in society. He identifies several values that he considers to be essential for human well-being and dignity, such as justice, fairness, equality, freedom, democracy, human rights, etc. He argues that law cannot be morally neutral or indifferent to its content. He insists that law must reflect and respect the moral convictions and aspirations of the people who live under it.


Fuller acknowledges that there may be disagreements and conflicts over the substantive aims of law among different individuals, groups, or cultures. He admits that there may be no single or universal answer to the question of what law should do or achieve. He accepts that there may be multiple or plural ways of realizing the substantive aims of law in different contexts or circumstances. However, he does not accept that there may be no limits or constraints on the substantive aims of law. He does not accept that anything can be justified or legitimized by law. He does not accept that law can be used for evil or immoral purposes.


A Reply to Critics




Fuller then responds to some of the main criticisms of his theory from legal positivists, natural law theorists, and others. He defends his conception of law as an internal morality that guides and limits the exercise of legal authority. He clarifies his position on some of the controversial issues and challenges that his theory raises, such as:



  • The relationship between legality and legitimacy: Fuller argues that legality is a necessary but not sufficient condition for legitimacy. He agrees that legal validity does not imply moral validity, but he denies that moral validity does not imply legal validity. He claims that a legal system that violates the principles of legality loses its claim to obedience and respect.



  • The relationship between morality and rationality: Fuller argues that morality is a form of rationality. He rejects the idea that morality is irrational or subjective. He contends that morality is based on reason and evidence, not on emotion or intuition. He suggests that morality is a process of discovery and justification, not a matter of preference or opinion.



  • The relationship between form and substance: Fuller argues that form matters for substance. He rejects the notion that form is irrelevant or trivial for substance. He contends that form influences and affects substance, not only in terms of clarity and consistency, but also in terms of quality and value. He proposes that form expresses and embodies substance, not only in terms of meaning and communication, but also in terms of beauty and elegance.



The Problem of the Grudge Informer




act of disloyalty or dissent. After the regime is overthrown and a democratic government is established, the question arises whether the informer should be prosecuted for his or her actions.


Fuller argues that this problem poses a dilemma for legal theory and practice. On the one hand, it seems unjust to let the informer go unpunished, since he or she caused harm and suffering to an innocent person. On the other hand, it seems unjust to punish the informer retroactively, since he or she acted in accordance with the law that was in force at the time. Fuller suggests that this problem can be resolved by using his principles of legality and his notion of fidelity to law.


Fuller claims that the law of the tyrannical regime was not a valid law, but a mere facade of law. He contends that the law of the tyrannical regime violated the principles of legality, such as generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, stability, and congruence. He maintains that the law of the tyrannical regime was arbitrary, irrational, and unjust. He concludes that the law of the tyrannical regime did not deserve obedience and respect.


Fuller also claims that the informer was not faithful to law, but only to his or her personal interests. He argues that the informer did not act out of a sense of duty or obligation, but out of a motive of malice or spite. He contends that the informer did not respect the spirit or purpose of law, but only exploited its form or appearance. He asserts that the informer did not contribute to social order or cooperation, but only to social chaos or conflict. He implies that the informer was not a citizen, but a traitor.


Conclusion




In conclusion, Fuller's book The Morality of Law is a masterpiece of legal philosophy that offers a rich and nuanced theory of law that integrates legal positivism and natural law perspectives. Fuller shows that law is not only a matter of rules and commands, but also a matter of morality and justice. He demonstrates that law has an internal morality that consists of eight principles of legality that make law possible and effective. He also reveals that law has a substantive morality that reflects the values and ideals that law should promote in society.


Fuller's book is relevant for contemporary legal debates and challenges, such as:



  • The rule of law and human rights: Fuller's book reminds us of the importance and significance of the rule of law and human rights for protecting human dignity and autonomy from arbitrary and abusive power.



  • The globalization and pluralization of law: Fuller's book helps us to understand and appreciate the diversity and complexity of legal systems and cultures in a globalized and pluralized world.



  • The innovation and transformation of law: Fuller's book inspires us to imagine and create new forms and modes of law that respond to the changing needs and demands of society.



Fuller's book contributes to a deeper understanding of the nature, function, and value of law in society. It invites us to think critically and creatively about law as a moral enterprise that aims at achieving social order through subjecting human conduct to the governance of rules.


FAQs





  • What is the main thesis of Fuller's book The Morality of Law?



  • What are the two types of morality that Fuller distinguishes: the morality of duty and the morality of aspiration?