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Fuller Morality of Law - Jurisprudence

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Much of the 18th and 19th century’s jurisprudence field was ruled by the positivist school of thought - unseating the natural law theories of the time, with its clear separation of law and morality coupled with empirical methods. The 20th century however, saw a huge of interest again in the natural law theory. American legal philosopher, Lon Fuller who was “an outsider within the intellectual climate of mid-twentieth century legal philosophy” today, stands as “the leading natural lawyer” at the forefront of it. However, despite seeming to conform to natural law thinkers, Nicholson claims that Fuller’s “natural law terminology should not be allowed to obscure his originality”. He eschews the Christian doctrines normally present in natural law, and instead presents a more procedural approach to marry the ideas of morality and law. This essay will explore his claims - namely the “internal morality of law”, its moral authority and also further the argument that posits the inherent intertwine of law and morality is correct and necessary as the first line of defence against evil regimes and as a check and balance to ensure government accountability.

Fuller’s Internal Morality of Law For context, it’s worth noting what Fuller believes as the purpose of law - that it is a purposive “enterprise of subjecting human conduct to the governance of rules”. Fuller begins by introducing two types of moralities - the morality of duty and aspiration. He describes the two using “an imaginary scale” that “starts at the bottom with the most obvious and essential moral duties and ascends upward to the highest achievement open to man”. Simply put, the morality of duty requires fulfillment as the minimum whereas that of aspiration only requires one to aspire to such moralities. The internal morality of law, Fuller claims “embraces [both] morality of duty and …of aspiration” - where the fulfillment of it is necessary but the degree of fulfillment is aspirational. Now, we move to Fuller’s most famous claim: the distinction between the internal and external moralities of law. The external refers to ideas of justice and fairness which are subjective - topics like “polygamy, the study of Marx, the worship of God, the progressive income tax, or the subjugation of women.” Fuller distinguishes this from the internal morality of law which “can be said to be neutral over a wide range of ethical issues”, unlike the external morality. What it cannot be neutral in, is “in its view of man himself”. Seeing as it’s an enterprise to subject humans to governance of rules, Fuller believes that it is imperative to commit “to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”, hence he puts forward the “eight kinds of legal excellence toward which a system of rules may strive” - Fuller’s eight desiderata of law. He displayed these principles through his “striking proficiency in constructing narratives and in coining apt metaphors”, best seen through his analogy of King Rex which lays out the eight ways a legal system can fail:

“The first and most obvious lies in a failure to achieve rules at all …(2) a failure to publicise, or…make available; (3) the abuse of retroactive legislation…;(4) a failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules… (8) a failure of congruence between the rules as announced and their actual administration.”

Internal Morality of Law Gives Moral Authority This essay seeks to first show that the internal morality of law gives moral authority and hence legal validity to the legal system. To establish this claim, one needs to look towards the Hart-Fuller debate - in particular, Hart’s claim that Fuller’s “inner morality of law” can be likened to the “internal morality of poisoning.” He points out that Fuller’s mechanism focuses on efficacy rather than morality as it so claims, using the act of poisoning as an example - wherein the right method of poisoning a person to cause death can also adopt the principles behind the mechanism of the internal morality of law. This implies that the Fullerian model is not necessary for law to have its validity and authority. Fuller retaliates by explaining that the external morality actually informs the internal morality. This is because the internal morality of law treats the citizens as “a responsible agent, capable of understanding and following rules, and answerable for his defaults”. To Fuller, fidelity to law “must mean more than allegiance to naked power”. The purpose of law - that is the subjugation of humans under a “governance of rules” - comes with the “necessity [of a] commitment to [this] view. Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent.” In short, this is what gives the internal morality of law moral authority and value, as it is anchored in the belief of the dignity of “self-determination”. With that moral authority, the legal system would derive its validity - one of the few traditional natural theorist claims that Fuller sticks to. Positivists would claim to the mutual exclusivity of law and morality but more often than not, when grounded in a real-world context, these theories pale and most often fail the governed subjects.

Taking Nazi Germany and South Africa’s apartheid regime as examples, we forget the undeniable fact that these laws and regimes flourished because of propaganda that influenced the beliefs of the majority. Though no one could argue that any society would submit to an outrightly evil regime, more often than not, regimes - and hence their legal systems - gain their power and ‘validity’ through subscription of the people to the moral authority and beliefs of a dictator or oligarch, deferring their own morals and liberty to these “higher” ones. The negative hypothesis for these interpretations can be found in South East Asian countries - Malaysia being one of them. Despite a reign of 50 years, the societal opinion of the ruling government has waned in the past decade, with many disappointed by the broken systems and morality of the ruling government. The general temperature of society is apathy and distrust towards the ruling government and also the laws that are issued by them. This can be attributed to what is perceived to be the erosion of the government’s moral authority over time, resulting in the laws that have been enacted and enforced under their rule to also lack that validity. Hart’s arguments, ultimately, answer a lot of questions and present derive a full and complete picture of what legal systems should derive its validity in. Yet one can argue that it only flourishes in an ideal world. Put in the context of the world we live in - one filled with propensity for chaos, corruption and greed, the positivist claim of mutual exclusivity of law and morality will fail.

Internal Morality of Law as the First Line of Defence Against Evil Regimes With that, we see the need for a first line of defence against evil regimes, one that this essay will purport can be found in the internal morality of law. To establish this, we must look to Kramer’s argument and in its deconstruction will we see the reasons supporting this claim. To put it plainly, Kramer stands by the fact that evil regimes could very well put up a mask of innocence by abiding to Fuller’s eight desiderata as “there will typically be ample prudential reasons for wicked rulers to govern in accordance with [it]”. He implies that Fuller’s “internal morality of law” does not fully ensure that evil regimes will not happen - as in the case of the South African apartheid regime, wherein it is argued that if it was drafted and legislated more clearly, it would have fulfilled Fuller’s model.

Two arguments can be used to defeat Kramer’s basic argument here. Bar the fact that Kramer “fails to establish any convincing reason why the evil regime ….could have sound prudential reasons for complying with Fuller’s eight principles”, Fuller does not claim that legal systems abiding by the 8 desiderata will magically produce moral results. Instead, he is saying that it is a moral virtue in itself. Fuller recognises the ability for gross injustice to exist hand in hand with a compliance to the eight principles as well. This in no way undermines his theory. Even Kramer concedes - that if an evil regime uses Fuller’s “internal morality of law” as its mask of innocence, it will have proven Fuller right - ironically, as this further proves its intrinsic moral value. Simmonds likens it to the virtue of “honesty” - that even when honesty is employed in a detrimental manner or giving adverse results, it is still a virtue, similarly for the “internal morality of law” as well. Not forgetting that the internal morality model is also one of aspiration, because Fuller recognises that all legal systems will always fall below the ideal of the 8 desiderata. What he claims instead is that a complete inability to abide by any one of the desideratas would lead to the invalidity of that legal system.

Secondly, evil regimes would have no reason to abide by Fuller’s model. This is due to the fact that the compliance to the eight desiderata, no matter how strict or taintedly draconian the laws that make up the legal system are, would still afford the citizens “interstices of liberty”. Within that limited ambit of liberty granted - through the “stable expectations” of social order and laws granted through the eight desiderata - “an important bulwark of freedom” can be built upon. A simple example would be an enactment of curfews where people are expected to be in the house by 6pm. Let us continue stretching that constraint, envisioning then a regime where people are only allowed to be out of the house from 6pm to 10pm. Despite the very limited amount of autonomy given, its stability and consistency allow for one’s own freedom and autonomy to be built around it. Hence, liberty would arguably be one of the elements of society that evil regimes will seek to eradicate, something that will be hard to do should an evil regime still comply with Fuller’s “internal morality of law”. In short, Fuller’s internal morality of law can be said to be the first line of defence against evil regimes, instead of the shield of total protection Hart and Kramer mistakenly purport it to be.

Internal Morality of Law as a Form of Check and Balance and Accountability System for the Citizens This leads us to the inevitable fact that is the internal morality of law - its necessity in the real-world context and that it finds its truths in that necessity. It becomes, in itself a check and balance to keep the “officials” - whether elected or unelected - accountable to the governed people. It’s necessary because of the importance of “a kind of reciprocity between government and citizen with respect to the observance of rules”. As citizens are to obey the government and laws, so do the governments owe the people a responsibility to uphold the rule of law, give clear, published rules and to - as much as possible - prevent legal retroactivity. Laws and legal systems do not exist in a vacuum. Instead, they exist in the real world, amidst the myriads of human emotion and actions, at the mercies of a spectrum of regimes. Hence, it is very important to recognise the relationship between citizens and the government and the inherent role laws and legal systems play in that.

This then brings us back to the purpose of law as per Fuller, as a “purposive enterprise of subjecting human conduct to the governance of rules”. Here is arguably where positivism fails as it fails to close the gap between what should be - an ideal world where every legal system is passed by upright and just officials - and what it really is - corruption and greed are very much present in the world of legislation i.e, politics. They see “law [only] at its point of dispatch by the lawgiver and… the impact on the legal subject”, failing to see “that the creation of an effective interaction between them is an essential part of law itself.” In the context of Nazi Germany, Fuller claims that Hart had failed to realise the “explicit pressure faced by all Germans at the time and also the levels of devotion and loyalty to the Fuhrer”. Thus, the terms ‘mandate of the people’ and ‘voice of the majority’ become a complicated one to use as it begs the question if it really is the voice of the majority. With that said, we see why Fuller’s internal morality of law is not just true, but necessary because legal systems should not be a subversive system, but one “providing the citizenry with a sound and stable framework for their interactions [with the state and also] with one another.” We have to face reality, in that ultimately humans are susceptible to corruption - possibly the only hint of traditional natural law theology in Fuller, as the internal morality of law arguably serves to counter the fallen nature of human beings. Examples throughout history, from Nazi Germany, South African apartheid and today, Myanmar and Malaysia among others have taught us enough lessons.

At the same time, the voice of the ‘majority’ can also become an oppressive force. Minority groups are overshadowed and overlooked in most career politicians’ radars, the very same politicians that would make up Hart’s “legal officials”. Ergo, the need to form an accountability mechanism to protect and ensure the interests of society as a whole. The internal morality of law model can provide that - as Fuller’s idea of morality runs along the lines of consistency and transparency of the legislative process, ensuring that the laws, at the very least are made accessible to every strata of society. Fuller furthers the argument that “values like reciprocity, embodied in established procedures, could act as constraints on power” as these powers are “hedged… by a network of reciprocities that trace the limits of [its] control”. This is of utmost importance in establishing legitimacy of democratic power - something dictatorships can never claim to have, further solidifying the necessity of the internal morality of law.

In crux, the mechanism proposed by Fuller can be established to firstly, give validity to laws. This is because in affording dignity to the people it governs, it is afforded the same dignity and respect. It finds its truth due to its real-world relevancy and necessity. It also plays an active role, acting as a first line of defence against evil regimes and a check and balance to keep governments accountable. Fuller arguably fills the gap that positivists have left empty, the applicability and reconciliation of creation of laws and when the context of reality is taken into account. Fuller’s procedural approach - inasmuch as it has its faults - is the best one we have as it employs the neutrality needed to anchor and balance the many subjective moralities and beliefs in this age today and in the future.

(2482 words, excluding headers)

BIBLIOGRAPHY * A Sacks, ‘Lon Luvois Fuller’’ Harv. L. Rev. (1979) Vol 92 * Crane P, The Hart-Fuller Debate in the Twenty-First Century (Hart Publishing Ltd, 2010) * Deutsche Welle - “Malaysia's anti-government protests - Why PM Najib is unlikely to quit” <http://www.dw.com/en/malaysias-anti-government-protests-why-pm-najib-is-unlikely-to-quit/a-18687741> accessed 23 November 2015 * Dias RWS, Jurisprudence, 5th edn. (Butterworts 1985) * Freeman MDA, Lloyd’s Introduction to Jurisprudence, 7th edn. (London: Sweet Maxwell 2001) * Fuller L, “The Morality of Law, Revised Edition” (Yale University Press, 1969) * Fuller L, “Positivism and Fidelity to Law - A Reply to Professor Hart” Harv. L. Rev. (1958) vol 71 * Hart HLA, “Problems of the Philosophy of Law” (Clarendon 1983) * Hart HLA, “Book Review: The Morality of Law”, 78 Harv. L. Rev. 1281, 1284 (1965) * Kramer M, In Defense of Legal Positivism (Oxford 1999) * Kramer M, (Review) ‘Rediscovering Fuller: Essays on Implicit Law and Institutional Design’ MLR (2001) Vol 6, issue 4 * Rundle K, “Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller” (Hart, Oxford, 2012) * NE Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 2nd edn. (Sweet & Maxwell 2002) * P Halstead, The Comprehensive Guide To All The Facts: Jurisprudence (Hodder Arnold 2005) * P. Nicholson ‘The Internal Morality of Law: Fuller and His Critics’ Ethics (1974) Vol 84, No 4 * Wolff, The Sociology of Georg Simmel (The Free Press 1950)

--------------------------------------------
[ 1 ]. P Halstead, The Comprehensive Guide To All The Facts: Jurisprudence (Hodder Arnold 2005) p 8
[ 2 ]. Freeman, M.D.A, Lloyd’s Introduction to Jurisprudence, 7th edn. (London: Sweet Maxwell 2001) p 124
[ 3 ]. Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, Oxford, 2012) at 1
[ 4 ]. RWN Dias, Jurisprudence, 5th end (Butterworts 1985) p 491
[ 5 ]. A Sacks, ‘Lon Luvois Fuller’ Harv. L. Rev. (1979) Vol 92, p 349
[ 6 ]. P. Nicholson ‘The Internal Morality of Law: Fuller and His Critics’ Ethics (1974) Vol 84, No 4, p 311
[ 7 ]. L Fuller The Morality of Law, Revised Edition (Yale University Press, 1969) p 97
[ 8 ]. Ibid 42
[ 9 ]. Ibid 162
[ 10 ]. L Fuller The Morality of Law, Revised Edition (Yale University Press, 1969) p 42
[ 11 ]. Ibid 42
[ 12 ]. Ibid 96
[ 13 ]. Ibid 162
[ 14 ]. Ibid 162
[ 15 ]. L Fuller The Morality of Law, Revised Edition (Yale University Press, 1969) p 39
[ 16 ]. M Kramer, (Review) ‘Rediscovering Fuller: Essays on Implicit Law and Institutional Design’ MLR (2001) Vol 6, issue 4, p 643-655
[ 17 ]. Fuller (n 15) p 39
[ 18 ]. H.L.A. Hart, Book Review: The Morality of Law, 78 Harv. L. Rev. 1281, 1284 (1965)
[ 19 ]. L Fuller, The Morality of Law, Revised Edition (Yale University Press, 1969) p 162
[ 20 ]. L Fuller, ‘Positivism and Fidelity to Law - A Reply to Professor Hart’ Harv. L. Rev. (1958) vol 71, p 634
[ 21 ]. Fuller (n 19) p 162
[ 22 ]. Ibid 162
[ 23 ]. Deutsche Welle - “Malaysia's anti-government protests - Why PM Najib is unlikely to quit” accessed 23 November 2015
[ 24 ]. Matthew Kramer, In Defense of Legal Positivism (Oxford 1999) p 70
[ 25 ]. NE Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (2nd edn, Sweet & Maxwell 2002) p 231
[ 26 ]. Ibid 240
[ 27 ]. Simmonds (n 25) p 237
[ 28 ]. L Fuller, The Morality of Law, Revised Edition (Yale University Press, 1969) p 42
[ 29 ]. Simmonds (n 26) p 239
[ 30 ]. “compatible with very great iniquity” - HLA Hart, Problems of the Philosophy of Law (Clarendon 1983), supra note 9, pp. 115-6
[ 31 ]. “there will typically be ample prudential reasons for wicked rulers to govern in accordance with Fuller’s prcepts” - Matthew Kramer, In Defense of Legal Positivism (Oxford 1999) p 70
[ 32 ]. Wolff, The Sociology of Georg Simmel (The Free Press 1950) pp 186-89; see also Chapter 4, “Subordination under a principle,” p 250-67
[ 33 ]. Fuller (n 28) p 39
[ 34 ]. Ibid 162
[ 35 ]. Fuller (n 28) p 4
[ 36 ]. Ibid 210
[ 37 ]. Peter Crane, The Hart-Fuller Debate in the Twenty-First Century (Hart Publishing Ltd, 2010)…...

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