Reviews
| Published date | 01 May 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01084.x |
| Date | 01 May 1965 |
REVIEWS
THE
MORALITY
OF
LAW.
By
LON
L. FULLER. [New Haven and
London:
Yale University Press.
1964.
viii and
195
and (index)
6
pp.
87s.
6d. net.]
THE
ringside fans have eagerly awaited what they called “Fuller’s reply to
Hart.” Professor Fuller, while
acknowledging the excellences of Professor Hart’s
The
Concept of
Law
(“a
contribution to the literature of jurisprudence such as we have not had in
a
long time”) continues,
“
with its fundamental analysis of the concept of law,
however,
I
am in virtually complete disagreement,” and, taking up Professor
Hart’s “rule of recognition,” treats
us
to some twenty paps of brilliant
in-fighting which a reviewer with limited space cannot report blow by blow.
To
the present reviewer, whose sympathies incline to the positivist side, many
of the blows seem to hit the mark and yet do little
or
no damage. Professor
Fuller asks
us
(p.
117)
to imagine
a
psychotic Parliament enacting that its
present members should be free, as individuals, to kill, rob and rape with
impunity, that any interference with them in such acts should be
a
capital
offence, that all other laws should be abolished and that Parliament should
henceforth be permanently dissolved, and he cornments that it
is
difficult to
imagine any solicitor, after consulting Dicey, advising
a
client that
“as
a
matter of strict law” the rampaging and ravishing
M.P.s
were within their
legal rights and that the client would have to face for hirnself the moral
issue whether to violate the law by raising his hand against them.
To
us
the
advice seems just
as
imaginable as the preniiss on which
it
is
based. Again,
it
is made
a
charge against Professor Hart that on his postdates one is
“
compelled
to
assume” what Professor Puller seems to regard as an absurdity
(e.g.,
p.
138)
“that the lawmaking authority cannot be lawfully revoked”-
to which the positivist might say, “Yes. If there is no constitutional
provision for revoking lawmaking authority, then, whcn such authority is
de
fucto
and effectively repudiated, there has been
a
revolrition,”
or
(p.
142)
that
on
a
successful revolutionary usurpation of power
“
all previous laws, including
those of property, contract and marriage, have lost their force ”-to which the
positivist might answer, “Yes, at least theoretically. In fact, they may
continue, but this, juristically, will be in virtue of
a
new
Gmndnorm.”
This
latter instance brings
us
to
the crux of the argument. Positivists, like
Professor Hart, are trying “to give neat juristic answers to questions that are
essentially questions of sociological fact,” and for Professor Fuller this is
ya
basic error of method.”
For
Professor Fuller it is not enough to treat law “juristically,”
or
even
as
“a
manifested fact of social authority.” Law must be “viewed as
a
purposeful enterprise.” In his first
chapter he founds himself on
a
distinction, which others have in substance
recognised, between
“
the morality of aspiration
”
and
“
the morality of
duty.” The former
starts
at the top of human achievement, pointing to the
excellences of which
a
man may be capable if he strives for them; the latter
starts
at
the bottom, laying down “the basic rules without which an ordered
society
. . .
must fail of its mark.” Professor Fuller develops this distinction
with refinement of detail and illuminating (if not always convincing) com-
parisons with modes of judging in other fields of thought, particularly in
economics. He imagines
a
sort
of moral scale, whose lower rungs represent
the
morality of duty and
its
higher reaches the morality of aspiration, and
870
Let
us
hope they will not be disappointed.
Let
us
follow him from the beginning.
MAY
1966
REVIEW
9
871
he suggests that it is to the morality of duty that the law must turn for
workable standards. Professor
Fuller suggests that the morality of law has an
internal
side, which regards
the “procedural” qualities which law must possess if it is to be law
at
all,
and an
external
side, which regards the question of the substantive aims
of
law.
Professor Fuller’s chapter on the
“
internal morality
”
of
law contains
brilliant and thought-provoking discussion of such requirements as generality,
promulgation, non-retroactivity, stability, clarity, absence of self-contra-
diction, that law should not demand the impossible (which raises the question
of the morality of rules imposing strict liability), that official action should be
congruent with the declared rule.
It
is not quite clear how far he regards
each and all of these as essential (sometimes he says “essential” and some-
times he uses the word “desideratum”) and admittedly law cannot even
aspire to
100
per cent. perfection in them all, because (p.
4.5)
antinomies
may arise even within the internal morality of law: law should, for instance,
be stable, yet
a
law should not be kept unchanged when changing circum-
stances have rendered obedience practically impossible. They are, however,
essentials in
so
far that a so-called system of law which was totally
or
gravely deficient in them could not, in Professor Fuller’s view, be properly
called “law.” Indeed,
it
could not effectively survive, for these are require-
ments of natural law, not in any high
or
theological sense, but simply (p.
96)
“like the natural laws of carpentry,
or
at
least those laws respected by
a
carpenter who wants the house he builds to remain standing and serve the
purpose of those who live in it.
The chapter on the “Substantive Aims of Law,” that is, the “external
morality” of law, makes some good points, such as that Professor Hart’s
“
minimum content
of
substantive natural law
”
rests, as Professor Hart
himself acknowledges, on the assumption that the proper end of human
activity is survival, and this assumption may be controverted. Professor
Fuller’s own position may surprise those who expect
“
natural lawyers
”
to
insist that law must have a specific moral content. For him, the internal
morality
of
law
is
“
over a wide range
of
issues indifferent
to
the substantive
aims of law.” Attempts to use law to
“
enforce morality
”
(that is, to enforce
what is regarded
as
morality in human conduct) may seriously affect “legal
morality” by placing,
or
retaining, on the Statute Book rules which will not
and cannot be enforced.. Most of what is commonly called “morality” in
human conduct belongs to the morality of aspiration and, like tasks of eco-
nomic allocation, is incapable of enforcement “within the limits set by
the
internal morality of law. The attempt to enforce such tasks through
adjudicative forms is certain to result in inefficiency, hypocrisy, moral
confusion, and frustration.”
So
far, one may ,agree. Professor Fuller is,
however, less convincing when, turning to the other side of the question,
namely, the possible existence of positive laws which themselves are
substantively immoral, he attacks Professor Hart’s view that strict legality
may be compatible with the greatest iniquity. He contends that such substan-
tively immoral “laws” cannot in fact be applied without violation of the
inner morality of law, and they are therefore not laws. He points out that
much of Nazi tyranny was exercised by virtue not of laws but of unpublished
Party orders, and that legislation imposing racial discrimination has produced
confusion and contradictions because of the absence of
a
uniform scientific
basis of race classification. This may be
so
in the instances he quotes, but
surely it is not beyond the wit of man
to
devise
a
brutal and cruel law
of
racial discrimination resting on
a
single measurable standard, like the
cranial index, and here we should have
a
law which was general, certain,
clear, publicly known, not impossible to apply-which, in short, satisfied the
tests
of internal morality and
so
combined legality with iniquity.
Now, in what respects can moral standards be applied to law?
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