This article examines Lon L. Fuller’s most famous and influential work, The Morality of Law (1964), in which he presents the concept of ‘the inner morality of law’. It will discuss the justifications for this natural law philosophy and explore the critique that it has attracted by legal positivists, whilst seeking to find an answer to the ultimate question: is there a legitimate distinction between law and morality?
Written by Stephanie Paton, 3rd Year LLB and sub-editor of the Legal Theory portion of the Review.
Lon L. Fuller’s revolutionary legal philosophy identifies and explores what he describes as the ‘inner morality of law.’ In his leading work, The Morality of Law (1964), Fuller sets out a powerful and distinctive argument for law’s moral significance, contesting that there is no real conceptual distinction between law and morality by reason that the law is, in its fullest sense, a moral commitment. He stresses that discussion of morality is simply inescapable if we want to completely understand the concept, including the main objectives, of law. Fuller defines the law as a particular way of achieving social order by ‘subjecting human conduct to the governance of rules.’ He believed that these rules and norms which are built into our legal procedures are intrinsically purposive, and thus, value-laden and containing a procedural inner morality.
In his theory, Fuller sets out eight ‘principles of legality’, which he argues are the necessary features of the ‘inner morality’ which he identifies. He states that these essential conditions must be present to some degree in a legal system, and the essence of this ‘must’ is a moral one.
Fuller’s first essential requirement is that there must be rules. This is otherwise known as the requirement for generality in how laws are expressed. The second requirement is that of promulgation, which urges that the law must be made public and not kept secret. This is in order for citizens to be made aware of the content of the law, because no one can be held accountable for something that they do not know about. Furthermore, Fuller believes that rules cannot be retroactive; they must be prospective and set out in advance. The basic human right of ‘no punishment without a law’ supports this principle. To speak of governing conduct today by rules that will be enacted tomorrow is contradictory, thus a legal system made exclusively of retroactive rules would not make sense. However, there can be exceptions where the intended movement of the law is backward, in particular, when irregularities are being remedied. According to Fuller, rules must also so far as possible, be clear and concise in order that they can be understood and obeyed by everyone. Obscure or incoherent legislation can make legality unattainable. Albeit some interpretive leeway is inevitable, and some flexibility desirable, rules that are deliberately unclear contradict the possibility of directing and governing human conduct according to them. Another ‘principle of legality’ is that legal rules must not be contradictory in nature, because demanding competing actions gives no clear guidance as to what behaviour is expected by the law. Further to this, laws must not require the impossible. Laws must provide rules that humans are capable of fulfilling. However, it is not always easy to draw the line between extreme difficulty and impossibility as presuppositions about what is possible and impossible change according to social development. The next principle is that of constancy which orders that law must not keep changing rapidly if it is to produce stable expectations of what is required of its citizens. But this does not mean that they cannot change in order to meet the changing needs of society. The final and key feature for Fuller is that of congruence between official action and declared rule. It is of utmost importance that what officials do must be in accordance with the law, otherwise what the rules require and their application would differ in such a way as to leave citizens subject to the arbitrary power and will of those in authority.
These principles of legality, Fuller argues, constitute and represent the ‘inner morality of law’ in the sense that they are intrinsic to what it means to have law at all. He believed that compliance with these principles leads to substantively fair laws and away from evil ones. He also emphasises the idea that these essential principles are so deep and profound in nature, that deviation or lack of sufficient congruity with them would not merely create bad law, but would mean that the products of such a system cease to be law at all. Accordingly, if any of these eight principles are not present in a system of governance, a system will simply not be a legal one. The degree to which a system meets these requirements is the degree to which it counts as a valid system of law. Hence, the more closely a system adheres to them, the nearer it will be to the ideal, though in reality all systems of law must make compromises.
Fuller further contends that the ‘inner morality’ which he identifies is moral because it offers some crucial constraints. He theorises that when the ideal of the eight requirements are respected and followed, a web of rules is placed upon those in power, which prevents law from becoming ‘a one way projection of authority, emanating from an authorised source and imposing itself on the citizen.’ It provides coherence, logic and order to a system of law. Fundamentally, the principles of Fuller’s inner morality are also necessary and sufficient conditions for the possibility of bringing about the framework of reciprocity, which is laws main achievement, in the sense that law can be made distinct from simply instituted power and can acquire a moral dimension. It operates to minimise irrationality in human affairs, and is there to open up and to preserve free communication between people. As a result, it becomes a moral enterprise in itself, rather than merely a neutral means of organising a society. In other words, it is in this way that the law becomes more than a one way street of norms and rules standing above citizens, to be a shared interaction that both protects and enriches us all in a moral way.
Fuller’s theory corresponds with natural law philosophy. However, his idea of the inherent link between law and morality has been fiercely opposed by legal positivists whose views are based wholly on a different school of thought. Legal positivists, although all different in their approaches, find it important to identify the validity of the law autonomously, without collapsing it into questions of political or moral values. Positive law is a matter of fact not value; identifying and evaluating the law are separate. They emphasise that there is a vital difference between what the content of the law is and what it ought to be. In their view, a certain ‘autonomists’ realism must prevail.
One such positivist was H.L.A Hart, a British legal philosopher, who famously debated Fuller’s concept of ‘inner morality’ in the Harvard Law Review in 1958. Hart argued that there is no necessary relationship between a legal system and morals or justice; a legal system can still function whether it is moral or not. A famous illustrative example of this argument is the Nazi regime, which was present in Germany from 1933-1945. According to Fuller, Nazi law could not qualify as valid law – rather instruments of an arbitrary and tyrannical dictatorship.
John Finnis, an Australian legal scholar and philosopher, defended this point. Finnis was also a natural law theorist who focused on the morality of what the law achieves in order to give value to the law itself. He agreed with Fuller that a wicked law or practice fails to realise the moral ideals which are implicit on the whole concept of the law; therefore an unjust law cannot be law in its fullest sense.
However, in Hart’s view the Nazi regime was a legitimate legal system because the question of law must be separated from the question of morality. A legal system cannot lose its sanctity just because it does not conform to certain moral ideals. Thus in this view, even the most politically and morally atrocious governments, such as the Nazis, can make and enforce valid laws – good law and bad law is still law.
Nonetheless, Hart does deviate slightly from his position to agree with Fuller that all societies will normally have certain basic values enshrined in their law: rules against violence, theft, fraud, etc. Hart even argues in favour of a set of moral, political and social values that would be desirable in a decent society, and which would ideally be reflected in the content of its laws. But again he notes that such desirability should not be confused with a description of what constitutes validity in a legal system. Therefore, morality only comes in in a soft sense.
Hart goes further in the debate to say that Fuller’s eight principles of legality do not necessarily guarantee moral laws – they can produce immoral ends just as much as they can produce moral ones. He demonstrates this by comparing the ‘morality of law’ with the ‘morality of poisoning’, to highlight that Fuller’s 8 requirements could ensure the efficacy of any particular practice, regardless of its moral status.
However, Fuller rebuts this by restating that ultimately the law has a moral end: reciprocity. Therefore the means of achieving this end (the 8 principles of legality) have a moral value in themselves and will only work for morally good practices. The practice of poisoning someone cannot be justified as being morally valid, and so the means of doing so have no moral value. Therefore, Fuller’s theory cannot be applied in order to justify immoral means.
All in all, despite the substantial controversy which it has famously provoked, Fuller’s position on the affinity between law and morality is a powerful, original and thought-provoking one. Although legal positivists, such as Hart, have a very opposite approach to jurisprudence, Fuller’s functional test for determining the validity of law cannot be dismissed. He puts forwards a solid theory which firmly defends the notion that there is a definite and inescapable link between the concepts of law and morality. The eight principles of legality provide order, coherence and clarity to a system of law, which clearly has an inherent relationship with morality and justness as it helps to bring about the key purpose of the law: reciprocity.