Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.
Not professional advice - LAWIKI cannot guarantee the validity of any information
Fuller’s “Principles of Legality"
In The Morality of Law, Lon Fuller sets out eight “principles of legality” that apply to the existence and proper functioning of any legal system. Thus, the system’s rules ought to be: (1) sufficiently general; (2) publicly promulgated; (3) sufficiently prospective; (4) clear and intelligible; (5) free of contradiction; (6) sufficiently constant through time so that individuals can order their behavior accordingly; (7) not impossible to comply with; and (8) administered in a way sufficiently congruent with their wording so that individuals can abide by them.
Fuller claims that these more or less procedural principles constitute an “internal morality of law”. By this he means that taken together and as implemented, these principles both reflect and secure values of moral worth, i.e. moral excellence. This claim has been vigorously rejected by a number of critics, including H.L.A. Hart and Joseph Raz. In brief, they hold that Fuller’s principles are mere rules of legal efficacy and not moral rules at all. Their arguments are quite similar and proceed roughly as follows: While it is no doubt true that a government ought to regulate behavior through publicly promulgated rules that are applied in a fashion congruent with their textual formulations (and so on) if it desires to be effective in realizing its substantive ends, conformity with these procedural principles does not necessarily yield good law. Indeed, the substantive ends might be morally objectionable and yet pursued effectively by means of careful adherence to these eight principles. Similarly, nonconformity with these principles does not necessarily yield law that is not good law. Hence, it is incorrect to assert that these principles are moral in any significant sense; they are simply prudential guides for maximizing the efficacy of the legal system as a whole.
Fuller believes that the existence of an “internal morality of law” refutes the legal positivist doctrine that there is no necessary connection between law and morality. For this reason, there is much riding on his contention that the eight principles of legality are fundamentally moral in nature. But what exactly is his argument for this claim? Unfortunately, Fuller does not appear to provide any formalized defense of his position in either The Morality of Law or his famous 1958 exchange with Hart. Rather, he seems to offer merely a loose set of reasons why the eight principles are in fact moral ones. In essence, this amounts to the following propositions: (i) law is a “purposive enterprise, dependent for its success on the energy, insight, intelligence, and conscientiousness of those who conduct it”; (ii) to count as an instance of that enterprise law must fulfill certain moral requirements; (iii) these moral requirements are the eight principles of legality. Let us examine more closely the construction of Fuller’s “argument”.
Fuller claims that his eight principles of legality describe basic requirements of procedural morality. They ensure that a legal system satisfies the demands of morality, at least to the extent that when these principles are adhered to the system secures what he calls “fidelity to law”. By this he means a legal system that commands obedience with moral justification. But how is this so?
For Fuller, an obligation to obey the law does not automatically follow from its enactment by an official body of legislators or its interpretation by an established judiciary. Rather, this obligation depends on the legal system’s ability to command “fidelity”, i.e. willful compliance based on recognition of its moral worth. When certain minimum moral qualities are absent from a coercive structure purporting to be law it is unable to command this recognition, since its claim of obedience is not morally justified. In such a circumstance it lacks “authority”. Indeed it is not a legal system at all, at least in the sense of an institution producing “valid” law. In Fuller’s view, a coercive structure can only be “law” when it commands a certain degree of moral authority. Only then does an obligation to obey its set of rules arise.
Fuller maintains that the law’s authority (i.e. its capacity to demand fidelity) derives from a reciprocal understanding between legal officials and private individuals whereby the latter accept the law that governs them as “necessary, right, and good”. The legal officials, in turn, acknowledge the moral agency of those within its jurisdiction. As Fuller puts it: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults…. Every departure from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent.”
Generally speaking, moral agency implies the capacity of individuals to engage in practical deliberation and accept responsibility for their actions. It involves the exercise of rational and evaluative judgment in acts of reflection, reasoning and choice. Respect for this moral competence on the part of a legal system’s officials implies a certain duty toward those subject to the law. In Fuller’s view, reasonable adherence to the eight principles of legality satisfies this duty. For legal officials to abide by these principles is to stand in moral relation to individuals obeying the law.
Hence fidelity to law requires a willful commitment on the part of private individuals to do what the law requires and is matched by an equally willful commitment on the part of officials to adhere to procedural standards in administering the law. Just as officials must be able to anticipate that individuals will observe the laws that are promulgated, so too must individuals be able to anticipate that officials will abide by their own declared rules. In this respect, practical deliberation requires official faithfulness to publicly declared law. The key to this reciprocal arrangement is guidance and predictability. Fuller’s principles of legality offer individuals advance notice of what the law requires. They provide individuals with the ability to foresee with reasonable certainty how legal officials are likely to use their coercive powers. This facilitates the reasonable pursuit by private individuals of their own ends. It is in this sense that the principles of legality constitute the law’s “internal morality”.
Perhaps the central point of Fuller’s discussion of arbitrary rule under despotic regimes is that stable legal procedures and the law’s (moral) authority are inextricably linked. In his view, the decline in adherence to procedural standards during the Nazi era was so extreme that the legal system ceased to exist. For Fuller, the appalling consequences of this pathological “system” demonstrate that the question “what is law?” is more complex than legal positivism suggests. In order for law to exist it is insufficient that particular rules merely conform to accepted criteria expressed in some rule of recognition. Valid law is also a function of how these rules are promulgated, applied, interpreted and enforced. The lesson of Nazi Germany is that legal positivism cannot appreciate the moral conditions under which the existence of law is made possible. As Fuller puts it: [T]he internal morality of law is not something added to, or imposed on, the power of law, but is an essential condition of that power itself…. Some minimum adherence to legal morality is essential for the practical efficacy of law”.
In so far as Fuller’s eight principles of legality reflect the status of private individuals as moral agents capable of deliberation, judgment and the pursuit of self-given ends they are inherently moral. To the extent that a legal system conforms to these principles it achieves a degree of “moral excellence”. By doing so it helps achieve the law’s purpose as an “enterprise of subjecting human conduct to the governance of rules”.
As we have seen, Hart and Raz criticize Fuller for failing to acknowledge that his principles are equally consistent with morally virtuous and morally vicious sets of legal rules. Hart illustrates this objection by noting that one could just as easily imagine eight principles of the “internal morality of the poisoner’s art” which would include such dicta as “use tasteless, odorless poison”, “use poisons that are fully eliminated from the victim’s body”, and so on. The point is that such principles in themselves, with the attendant explanation at a general level of what is to be achieved by adherence to them, is insufficient to establish the moral quality of any social practice. These principles are merely procedural in nature, i.e. amoral solutions to problems of efficiency and efficacy in rule-governed practices.
In response, Fuller argues that critics who adopt this line of attack fail to appreciate the extent to which our sense of justice is concerned with matters of procedure. To illustrate, he cites an incident that once took place in the former Soviet Union, a regime often castigated for its arbitrary rule. It involved a proposed increase in sentences for robbery that would be applied both prospectively and retroactively. Lawyers in the country reacted strongly to this proposal, particularly the element pertaining to a retroactive increase in sentences. Although the plan addressed a mere matter of procedure, it still evoked howls of protest from these government officials (lawyers were required to be party members). Their reaction surprised at least some outside observers, for this was not a “legal system” known for its deep concern for justice. The message in this story, Fuller suggests, is that the concept of justice in the context of rule-guided behavior is intimately associated with such notions as treating like cases alike and avoiding ex post facto alteration of (reasonable) expectations. Evidently, these Soviet lawyers such a conception very much in mind when they reacted as they did.
Although not emphasized, this conception of justice is implicit in Fuller’s analysis of a legal system. It is conceptually tied to his view that any complex, rule-guided practice requires sufficiently widespread attitudes amongst its participants of reciprocal understanding and mutual respect. Kant likened this arrangement to a “kingdom of ends” where individuals are required to treat each other not as a means to their own private ends but rather as ends-in-themselves. This amounts to a prescription for respecting the “dignity” of individual moral agency, a theme very much present in Fuller’s discussion of the “internal morality” of law.
But does linking the “internal morality” of law in this way to deontological ethics and its compelling notion of moral personhood succeed in insulating Fuller’s rejection of the separation thesis from the strictures of Hart and Raz? In the end it does not. It may strengthen what amounts to an admirable effort in normative jurisprudence, but it does little to bolster his claim of theoretical superiority in the arena of analytical jurisprudence.
The principle reason for this is that even if one accepts Fuller’s position that (i) reciprocity and mutual respect are fundamentally moral concepts and (ii) these concepts are logically connected to any reasonable conception of what it means to participate in a social practice defined by rule-governed behavior, it need not be the case that everyone in a society must be included within the ambit of this relatively stable and procedurally sound system of rules for it to exist and function both efficiently and effectively. Indeed, a significant portion of the population can be “system outsiders” in the sense that they are excluded from the sort of reciprocal understanding and mutual respect that remains prevalent among “system insiders”. In the case of South Africa under apartheid, for example, such “system outsiders” were in effect de-humanized and deprived of their moral personhood from the standpoint of the legal system, and yet it existed and functioned both efficiently and effectively (quite often to the detriment of these “outsiders”). The “system insiders” most likely did incorporate in their internal relationships the virtues of reciprocity and mutual respect. Indeed, their ability to function as a rule-governed society depended on this. But this was an exclusive group whose purpose included the oppression of excluded elements in the wider society.
If we are persuaded by Fuller’s argument based on deontological considerations we are soon confronted with the seeming paradox that a legal system operating under a regime such as that present in South Africa during the apartheid era can be morally virtuous and morally vicious at the same time, to different classes of people, and in different respects. But is this really a paradox or just a realistic picture of what the real world? Social structures are tremendously complex, with institutions and sub-institutions guided by all sorts of purposes. Legal systems are perhaps the most complex of all. It is for this reason that a functioning legal system can have both commendable and deplorable aspects to them.
The lesson, it seems, is that Fuller’s principles of legality embody certain excellences that are specific to a legal system. Conformity with these principles offers varying degrees of prudential value. It can also offer varying degrees of moral value, but this is also dependent upon the nature of the purpose driving a particular set of rules. One must therefore conclude that the principles of legality do not entail moral excellence, though they can in certain circumstances facilitate it.
Eight Routes of Failure for any Legal System
- The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
- Failure to publicize or make known the rules of law.
- Unclear or obscure legislation that is impossible to understand.
- Retroactive legislation.
- Contradictions in the law.
- Demands that are beyond the power of the subjects and the ruled.
- Unstable legislation (ex. daily revisions of laws).
- Divergence between adjudication/administration and legislation.
- W. J. Witteveen and Wibren van der Burg, Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam University Press, Amsterdam, 1999).
- L. L. Fuller and W. R. Perdue, "The Reliance Interest in Contract Damages" (1936) 46 Yale Law Journal 52–96
- Finding Aid for Lon L. Fuller, Papers, 1926-1977 from Harvard University Library
- Entry on Fuller from the IVR encyclopaedia
- Nicola Lacey Philosophy, Political Morality, and History: Explaining the Enduring Resonance of the Hart–Fuller Debate (2008) 83 N.Y.U. L. Rev. 1059
- Colleen Murphy 'Lon Fuller and the Moral Value of the Rule of Law' (2005) 24 Law and Philosophy 239.
- Jeremy Waldron ‘Positivism and Legality: Hart’s Equivocal Response to Fuller’ (2008) 83 N.Y.U. L. Rev. 1135