The Notion of Fidelity to Law PDF

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The Notion of Fidelity to Law Lon L. Fuller thought up a revised form of natural law, and the morality within that law.1 Fullers notion of fidelity to law was created to help us understand his theory on the 8 elements that make up a legal system in relation to the “inner morality of law”.2 Fuller believed that if a legal system lacked any of these 8 elements that it could not constitute a valid and fair legal system, and that without following these standards, a legal system is simply the “exercise of state coercion”.3 This means that the laws in place do not constitute valid laws. The notion of fidelity of law is to do with the relationship between the government and citizens. This essay shall establish the way in which the notion of fidelity to law operates and the ways in which it relates to the morality of law. Fidelity to law is used to describe the way in which the majority of citizens shall continue to be loyal to the law, as long as they do not deem it to be unjust or immoral. In order to maintain this relationship, Fuller believes that the sovereign parliament must follow his 8 elements of the inner morality of law. These elements require the law to be general, public, prospective, coherent, clear, stable, consistent, and practicable.4 In his book, “The Morality of Law”, Fuller stated that: 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 only 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.5 This explains Fuller’s belief that it would be incredibly foolish to impose punishment for any law or legal system with laws that go against his 8 principles. Fuller believes that laws which go against any of these elements are in themselves immoral and that any government which allows this is breaking the fidelity of law. A government must meet its duties by monitoring the inner morality of law and in return, citizens will be more likely to show a faithfulness to the law. There is a clear link here between morality and the fidelity to law, as Fullers theory would prevent citizens from being punished for breaking a law that goes against his idea of morality within the law. On the other hand, if a legal system is fair and moral and follows Fullers 8 principles, but a citizen breaks the law, then the fidelity to law is also broken. Fuller draws a comparison between the way that rewards and penalties are both distributed by some sort of authoritative body,6 whether that be the headmaster of a school, or a judge in a courtroom, and finds both to be alike, as any decision making body, whether it be for punishments or awards, must be impartial in their decisions. Fuller also notes that with regard to the law, those who follow the law tend to be left alone to go about their life, with no reward for upholding the law, whilst those who break it are penalised, by imprisonment, or fines, or by some other sanction of the legal system being imposed upon them.7 Fuller believes that it is common sense by which we are able to see that it is simpler to inflict 1 Charles L. Palms, C.S.P. (2016) “The Natural Law Philosophy of Lon L. Fuller,” The Catholic Lawyer: Vol. 11 : No. 2 , Article 3. P.95. 2 Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, P.42. 3 Ibid. P.43. 4 . 5 Lon L. Fuller, “The Morality of Law” Revised Edition p.39. 6 Ibid. P.31. 7 Ibid. P.31.

punishments on those who depart from the common good and morality of the law, than to reward everyone who follows the law closely.8 We can see from this that Fuller does not believe that punishing those who break the law interrupts the fidelity of law. Instead punishing rule-breakers could encourage citizens to follow the law, as they shall not deviate from the law if they wish to avoid punishment. Those who break rules established by a valid legal system, are committing acts which are inherently immoral in Fullers opinion, therefore breaking the notion of fidelity to law. This shows another link between morality and the notion of fidelity to law. The procedural naturalism9 of Fuller, rejects the idea that there is a “higher authority” of law as many natural lawyers before him believed there to be, 10 but he still believes that there is a very strong link between morality and the law. He also shares a belief with many positivists that an all-encompassing “higher law” could actually lead to “immoral morality”,11 meaning a set of morals which are not actually fair and which could threaten human freedom and dignity. 12 Fuller still insists that he rejects other positivist positions.13 Instead Fuller believes that an “internal morality”14 is necessary in any government or law making body. The inner morality of law holds an understanding that generally, law making bodies will create laws that are moral and just. In cases where the law is not fair, Fuller believes that those following un-just law can be punished, as his notion of fidelity to law is only applicable when the law maintains an internal morality. One debate between Fuller and Hart was based on a decision of a post-war West German Court, where a woman was tried and convicted for turning her husband in to Nazi authorities after he had made offensive comments about Hitler’s conduct during the war to her in private.15 The husband was sentenced to death, which was later commuted to serve as a soldier on the Russian front line, where he wasn’t expected to survive, but did. The wife was convicted 5 years later,16 on the grounds that the statute under which the husband had been punished offended the “sound conscience and sense of all decent human beings”.17 In this debate Hart took the position that she shouldn’t be punished as she followed a valid rule under Nazi law, and he believed that morality is not linked to legality. Fullers argument to reinforce the decision made by the court was that when a dictatorship manages to hide itself with a thin layer of legality, but has strayed from the inner morality of the law, and people remain loyal only because they fear what may happen if they do not, then it cannot be law. 18 The Nazi regime and any laws created under Nazi rule, are not legal in Fullers mind and those who have willingly helped the enforcement of these rules have committed an offence themselves. This again shows that the notion of fidelity to law relates to morals, as those following laws that do not follow Fullers 8 principles of internal morality, are themselves committing a crime which Fuller believes can be punished.

8 Ibid. P.31. 9 . 10 Ibid. P.111. 11 Fuller, American Legal Philosophy at Mid-Century, 6 J Legal Ed. p.463. 12 Palms (n.1) p.112. 13 Harvard Law Review, Volume 71, Lon L. Fuller, Fidelity to Law, p.656. 14 Wacks (n.2) P.43. 15 Wacks (n.2) P.43. 16 Fuller (n.12) P.653. 17 Wacks (n.2) P.43. 18 Fuller (n.12) P.660.

Morality is however, inherently subjective. The Cambridge English Dictionary defines morality as; “A set of personal or social standards for good or bad behaviour and character”.19 Essentially this means that morals differ depending on who or where you are. Fullers 8 principles for the inner morality of law, and which he believes that the state must meet, are based on his own personal set of standards of morality. Even if the state does meet these 8 elements, it is still very possible for a law to be viewed as being immoral, when judged by other personal or societal standards. Many laws have been viewed as immoral even though they have followed Fullers 8 requirements for morality within the law. For example, until 1980, any homosexual acts between males were considered to be illegal in Scotland.20 The acts that prevented and criminalised homosexuality followed Fullers 8 elements. They were real rules that people were aware of, they were intelligible, they were not contradicted by other laws and also not impossible. They also were not changed every minute so it was not unreasonable to expect citizens to be aware of them.21 Therefore under Fullers guidance this law did uphold the internal morality of the law and in having this law, the government was not breaking the fidelity of law. Many legal or philosophical scholars, such as Jeremy Bentham,22 would argue differently, arguing that a law which jails persons for private relations cannot possibly be moral, even if it does meet each of these principles. The Criminal Justice (Scotland) Act 1980, which decriminalised homosexual acts, also upholds Fullers 8 moral principles. If the previous law where homosexual acts were illegal was moral as it followed Fullers 8 elements, what would the need be to overrule this legislation in order to make homosexuality legal and how can two pieces of legislation which contradict one another both be moral? Fullers 8 principles only ensure morality in regard to the application of the law, not the principles behind the law. Following Fullers 8 principles prevents citizens from being unfairly punished by the law. Societal pressure and morals can also play a part in deciding government legislation. Nowadays, Scotland is considered to be one of the most forward thinking countries in Europe when it comes to equal rights for the LGBTI community. 23 The reason for such a big change in less than half a decade, is because of societies changing standards for what is considered to be moral and correct, and discrimination against any person because of something as trivial as their sexuality is no longer viewed as acceptable.24 This shows that Fullers 8 principles cannot guarantee that a law is moral, and that society shall decide this for themselves. Fullers principles can however guarantee that the application of said law is. When his principles are followed the risk of the law exploiting citizens is minimised. Therefore, the notion of fidelity to law is only broken when the application of the law upon citizens is immoral, and not when the principle behind the law is. As discovered in this essay, Fullers notion of fidelity to the law is very strongly related to morality, if not in the sense of ensuring that a law itself is moral, but instead in ensuring that the way in which laws are applied is moral. In order for a government to uphold the fidelity of law, they must follow Fuller’s 8 principles for the inner morality of law, and monitor their application of morals, making the government’s role in relation to the notion of fidelity to law moral. So long as a 19 . 20 Homosexuality was decriminalised by the Criminal Justice (Scotland) Act 1980, s.80. Homosexual Offences. 21 Fuller (n.5). 22 . 23 . 24 .

government upholds this standard of morality, any citizen which goes against it is found to be committing immoral acts and therefore should be punished. Another belief that Fuller had is that when the government does not have moral laws but citizens follow them regardless of the fact that they are clearly unethical, citizens can themselves be punished, even though they are following state law. Therefore, all of Fuller’s theories regarding the notion to fidelity of law require morality within the law, and the citizens abiding by that law....