Fuller - Morality of Law - Summary PDF

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Combination of reading notes and lecture notes from LAWS2249 in 2019...

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FULLER: SUMMARY LAWS2249

Fuller – the Morality of Law – Background Summary Law as the enterprise of subjecting human conduct to the governance of rules - pg 74 Fuller seeks to steer a middle course between traditional natural law theory and legal positivism. He rejects traditional religious forms of natural law theory, which view human law as rooted in a rationally knowable and universally binding "higher law" that derives from God. He accepts that in some cases unjust laws or legal systems are not law. -

Fuller denies the core claim of legal positivism that there is no necessary connection between law and morality.

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According to Fuller, certain moral standards, which he calls "principles of legality," are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a minimal morality of fairness. Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them.

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According to Fuller, all purported legal rules must meet eight minimal conditions (desideratas) in order to count as genuine laws. The rules must be o (1) sufficiently general, o (2) publicly promulgated, o (3) prospective (i.e., applicable only to future behavior, not past), o (4) at least minimally clear and intelligible, o (5) free of contradictions, o (6) relatively constant, so that they don't continuously change from day to day, o (7) possible to obey, and o (8) administered in a way that does not wildly diverge from their obvious or apparent meaning. [4]

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These are Fuller's "principles of legality." Together, he argues, they guarantee that all law will embody certain moral standards of respect, fairness, and predictability that constitute important aspects of the rule of law.

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Fuller presents these issues in The Morality of Law with an entertaining story about an imaginary king named Rex who attempts to rule but finds he is unable to do so in any meaningful way when any of these conditions are not met.

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Fuller contends that the purpose of law is to subject "human conduct to the governance of rules". o If any of the eight principles is flagrantly lacking in a system of governance, the system will not be a legal one.The more closely a system is able to adhere to them, the nearer it will be to the rule-of-law ideal, though in reality all systems must make compromises and will fall short of perfect ideals of clarity, consistency, stability, and so forth.

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In a review of The Morality of Law, Hart criticises Fuller's work, saying that these principles are merely ones of means-ends efficiency; it is inappropriate, he says, to call them a morality. o Employing Fuller's eight principles of legality, one could just as well have an inner morality of poisoning as an inner morality of law, which Hart claims is absurd.

o Other critics have challenged Fuller's claim that there is a prima facie obligation to obey all laws. Some laws, it is claimed, are so unjust and oppressive that there is not even a presumptive moral duty to obey them -

Both Hart and Fuller accept that morality is objective not subjective. The disagreement is whether or not the law meets the objective demands of morality.

Fuller – the Morality of Law – Chapter 1

Distinction between the morality of aspiration and the morality of duty. Note: Fuller is not saying that all laws are morally good - is saying the law is moral - imagine living in a system without law than living in a system with law, and living with a system with law is morally better. Lecturer: Uses Gambling to explain difference between morality of duty and aspiration. - Does gambling destroy lives? o Family, social responsibilities, financial responsibilities o If you don’t have any dependents, has the person done any moral wrong by gambling? Not really o But is it a defect in character? § Consuming, could be doing things more positive § Fuller describes this with the 'morality of aspiration' - with gambling you give yourself over to the forces of chance - this is irrational - instead of being responsible for yourself and being rational o Gambling and the lawmaker – argues the moral judge and the legislator do not have a break with the method followed in deciding whether to condemn gambling as immoral. o Law cannot compel a man to live up to the excellences of which is is capable. o Pervasive implications of the morality of law (p 9). - Fuller agrees that most people have that intuition - provides the vocabulary o Morality of aspiration vs morality of duty o Morality of duty - kill/save o Morality of aspiration - feeding the hungry - above and beyond the call of duty - Punish those who breach duty, reward those that aspire – p30 - Rules of grammar vs poetry o Sometimes an excellent poem may not comply with the rules of grammar It is easier to define the bare minimum than prescribe perfection (moral scale – introduced p9 and explained p27) - Marginal utility -> the benefit you get from one more unit of something -> related to marginal aspiration -> doesn’t actually describe what the ‘best’ is in both situations – could there always be something better you could be doing? - Economics of exchange -> without trade you are in a poor position? Robinson Crusoe -> morality of duty Reciprocity -> not explicit exchange but theres a duty to society (social bonds, prior to any exchange relationship) - Base line respect – if it is compromised by one party there is no moral duty to treat with high levels of respect - Duty towards society or another human being inherently has some level of reciprocity - Without reciprocity – lovers, small band of men united by an emergency Talks about Pashukani – when communism is achieved all moral duties will disappear? - Kant – treat men as an ends not as a means - P = that’s the reflection of a market economy

Fuller – the Morality of Law – Chapter 2 The internal morality of law Consider the following question: how could a legal system disintegrate (fall apart)? - What would hart say - when officials no longer hold the internal point of view with regard to the rule of recognition. This is a social phenomenon (hence the social fact thesis) - Fuller refutes this - many other ways for a legal system to fall down o Rex - absolute monarch - just assumed the kingship and wants to reform the legal system, but instead he disintegrates the system § The law falls apart through: 1. If Rex were just to issue ad hoc commands (random commands) the legal system will fall apart as the legal system requires rules which require some generality. If there is no system containing the rules, they are so random, it will fall apart; 2. If Rex makes rules in secret, failing to publisize or at least make available to the affected party, the rules he is expected to observe; 3. The abuse of retroactive legislation which not only cannot itself guide action, but undercuts the integrity of rules prospective in affect; 4. If the rules are unclear so that the average lawyer cannot understand them 5. If the rules contradict each other 6. If the rules require the impossible 7. If the rules frequently change so that the subject cannot orient his action by them 8. If the administrators do not enforce the laws as expected to be enforced. § A failure in any one of the directions does not simply result in a bad system of law; it results in something that is not properly a legal system at all (p39). · Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute. o Talks about hitler p 40 – most important rules not publicised. - Therefore the 8 standards are: 1. Generality 2. Publicity 3. Prospectivity 4. Clarity 5. Coherence 6. Obeyability 7. Constantcy 8. Congruence - Some of these have a min and a max, some are absolute 1. Generality (p47)  There must be rules § Best example for lack: Federal communications commission – setiing up a legal body where there is no mechanism – failed to develop any sign rules at all – p47 § Ask: what is essenrial for the efficacy of a system of legal rules and what shall we call a law? 2. Publicity/promulgation (p49) § Subject to marginal utility principle § It would be foolish to try to educate every citizen into the full meaning of every law that might apply to him

· The need for education will depend on how far the law departs from generally shared views of right and wrong § Must be able to be found if needed – even if only 1 in a hundred read, it is worth it. · Men observe the law through pattern – knowledge of a few influences the many · If the laws are not made available, it is harder to hold the gov to account § Does not rest on any such absurdity as an expectation that the dutiful citizen will sit down and read them all p51 3. Prospectivity p51 § Generally prospective can have some – marriage stamps – be careful to stay all clarifying/irregularity fixing retro laws are good though – hitler § Unavoidably part of a judge’s role · Civil disputes – previous ruling wrong – ironically only c benefits – 57 § Criminal law § Tax – levy vs paying tax when once didn’t p59 4. Clarity p63  Minimum degree of clarity required of the rules. If it is incomprehensible it will not meet the minimum standard. There is a large gap between minimum standard and perfection. Can fuller specify the minimum degree of clarity required? · Probably no/hard to do · Because of the bald man paradox - Sorities paradox (how many of grains of sand is required for there to be a heap of sand) · Maximal clarity does not mean total clarity (Poland Analogy p 45) because sometimes the rules may require some vagueness - because we can't forsee all future possibilities - need a degree of flexibility · Other problem with total clarity - clear for who? Clear for the layperson or clear for the lawyer?  High value on legislative clarity p 65 does not condemn ‘good faith’ ‘due care’ ‘reasonable person’ · Sometimes this is the best way to achieve clarit 5. Coherence ie no contradictions p65 § A man who is habitually punished for doing what he was ordered to do can hardly be expected to follow the rules in the future – eventually the system will break down (p66) – jan 1st licence plates example · Options – NYD overrides licence plate, licence plate overrides NYD, they combine (no labor aPART from licence plate) or one or the other is repealed · Refungnant 6. Obeyability p 70  the legislator as the teacher - stretches beyond capabilities to inspire?  Determination of fault requires a moral judgement  Strict liability most important to consider - >  Extreme difficulty vs impossibility - no hard line p 79  A hard or unjust law is not neccessarily an impossible law that will undermine the legal system  What is possible is based on presumptions about nature, of man & the universe. 7. Constancy 8. Congruence

 Between the authority figures and the law itself Hart's counterargument - the 8 principles are rules of effectiveness - in order for it to be effective it has no moral content Moral - poison kevin How to do it correctly? Minimum standard of poisoning and maximum excellence of poisoning If fuller is right, fuller is saying there is a morality of poison! Which is patently absurd in the case of poisoning it is also absurd in law as well What is good about rules that have these 8 criteria? If fuller can show you what is inherently good about these 8 criteria he will have shown there is a link What is good about living under a regime of rules that satisfy these 8 criteria If he shows this, he will show a necessary connection

Page 39 There is a kind of reciprocity between governement and the citizen with regard to the respect of rules - if you follow the rules, you have our assurance they will be judged by them Without them, you can't be sure Value of reciprocity Somehow if a regime satisfies these 8 criteria and if you follow these rules you will be fine/unharrassed The value is in the mutuality We can live harmoniously The rest of the chapter gives examples and a discussion of each of the 8 desiderata  Failure to meet the 8 directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all! - p39  Corresponding to these are eight kinds of legal excellence… the utopia is not actually a useful target for guiding the impulse towards legality; the goal of perfection is complex… but gives us 8 distinct standards.. P41-42.  Scale for all standards except publicity = MUST BE PUBLIC p43.  Infringements on legal morality tend to become cumulative. P92  When a law merely makes explicit principles of right and wrong, clarity and publication are of less importance  The stringency of the 8D will be affected by the branch of law in question as well as the kinds of legal rules under consideration Desiderata

Explanation

Example

Generality

Rules must apply to general classes and should contain no proper names - p47

Civil Aeronautics Board and the Federal Communications Commission The employer - if a rule was for a specific person - may fail in all the same ways as Rex (articulation)

Promulgation

Declaration - laws can be found by legal experts (not everyone needs to be able to find it) but the more education will be needed the further the law departs from our general ideas of right and wrong (p49-50)

Many people observe the law, not because they know it, but because they follow a pattern of others who they know to be better infromed than themselves.

Prospectivity

Pg 51

Marraige stamp example p53 Hitler - murders as restrospective executions pg 54

Clarity

P63 - obscure and incoherent legislation can make legality unattainable by anyone!

Good faith and due care - sometimes the best way to achieve clarity is to take advantage of, and to incorporate into the law, common sense standards (p64)

Avoidance of Contradictions

A man who is habitually punished for doing what he was ordered to do can hardly be expected to respond appropriately to orders given to him in the future pg66

Automobile owner = new plates on Jan 1st Other statute - illegal to do anything on Jan 1st p66

Impossible laws

No hard line between extreme difficult and impossibility - pg79

Good teacher - demands more than he thinks they are capable of giving exhortation v duty

A rule that asks somewhat too much can be harsh and unfair, but it needs not cotract the basic purpose of the legal order as does a rule that is patently impossible - pg 79

Reasonable man - some people are not capable of meeting this standard Ie lunatics and children  Lunatics can end up in mental asylums with some rights reovked Strict liability

Constancy

Close connection with retrospectivity

Madison

Congruence

‘ the most complicated one’ May be destroyed in a variety of ways mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, personal power pg81

Judges - Principles of interpretation (p82)  Focus on mischief?  Focus on purpose?  What was the common law  What was the remedy  What was the reasoning? Son continuing father’s invention pg 85 P5S4 Staute of Frauds (1677)  Oral v written  A year limit to bring a claim  Difficulty arises when the draftsmen do not think through the relation between the mischeif and the remedy appointed to cure it (p89) Prevention of the ‘old saloon’

What were the distinguishing features of a saloon? Pg 90

Fuller – the Morality of Law – Chapter 3 The concept of law – analysis in relation to the various schools of philosophy Legal Morality and Natural Law  Is his model natural law? Yes but o The enterprise of subjecting human conduct to the governance of rules o Nothing to do with any ‘brooding omnipresence in the skies’ , God’s law, etc (p96) o Marx, God etc = external morality of law  A procedural version of natural law- we are concerned with not the substaintive aims of legal rules but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be - page 96=97  American constitution most obsessed with the natural law theory - the pamplets very obssessed with features fuller thinks of as the internal morality of law  Dr Bonham’s Case o Fined bc he didnt have a cert, half to king half to college, sued them for wrongful imprisonment o ‘Court of physicians’ o Contradicted essential purposive efforts moving in an opposite direction  Internal morality of law is chiefly a morality of aspiration rather than duty - p104, 4244. o Under varying circumstances 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 p104 o Legal morality and positive law  I skipped everything up until page 133 (Hart’s Concept of Law)  Main quarrel is with the concept of the rule of recognition o Power Conferring and Duty Imposing rules  Ambiguities 1. Use of the word ‘right’ in power conferring rules suggests a duty (ie he has a right to reimbursement) p134 2. Duty to mitigate? Sanction of nullity  Distinction between the two depends on legislative intent and the mechanism  Hart doesn’t perceive these are distinct standards  the rule of recognition - p137 o Hart seems to read into the notion that the ROR cannot contain any express or tacit provision ot the effect that the authrotiy it confers can be withdrawn for the abuses of it o As such, the ROR is not a power conferring rule - it is both PC and DI  Mother leaves child asks person to teach child a game - did not describe which - can she truthfully say i did not mean that kind of game when she never considered the possibility of her child learning to throw knives?  Parliamanet

If the rule of recognition means that anything called law by the lawgiver counts as law, then the plight of the citizen is in someways worse than that of the gunman’s victim (p139)  Hart’s system does not presume any sort of reciprocity - there is nothing saying that once i hand over my money my life will be spared  How can the ROR be the same as the ones that summarise and absorb all the little rules that enable lawyers to recognise law in a hundred different special contexts? Basic error of method  Misapplication of rule ‘persistence of law’ section  Attaches ROR to the office rather than the person  But what happens when Rex 2 does not replace Rex 1 but instead Brutus 1 achieves the throne with no pretense as to title and in open violation of the rules  Is this a new office? A new order/ are we to say that all previous laws have lost their force?  Hart would have to argue that Brutus has tacitly re-enacts the previous law  This makes no sense  Coudetat = least threat to the actual persistence of law but totally undermines ROR Legal to pre-legal world  Primary rules of obligation, eventually resolves issues of efficiency, change and adjudication through secondary rules - transition to legal world occurs when society first applies ROR  

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They make the transition when a group of officials emerge that lead to the introduction of secondary rules due to static and inefficient resolution of conflict

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Imagine society that regulates itself throug...