Transcript Lon Fuller and the Inner Morality of Law

Lon Fuller and the
Internal Morality of
Law
Summary
• 1958 Response to Hart
• 1964 The Morality of Law
• Views law as an object of value and
human achievement, reserves the title
“law” for legal systems that deserve it
because they adhere to the internal
morality of law and therefore deserve
our allegiance as citizens
• Summary of Response to Hart
• Consider Fuller’s 8 criteria, especially
retroactivity
• Discussion of broader Hart-Fuller
debate
Fuller’s criticisms of
Hart
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Valid law must not necessarily be good, but it must take a
certain form to meet the ‘internal morality of law’
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The question of whether Nazi law was really ‘law’ cannot be
addressed independently of its moral dimensions
Hart focused on URR; how do we distinguish the practice of
judges and officials in this rule from the mere (ab)use of
power?
it is mistaken to claim that the question of legal validity is
solely related to acceptance, recognition or social practice.
Positivism does not account for the “ideal of law” which
imposes certain forms on law - the practice of judges and
officials should be aimed at certain virtues for a legal
system
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He points out – law seeks to create order – in
subjecting conduct to the governance of rules –
whatever this order might be:
“Law, considered merely as order, contains, then, its
own implicit morality. This morality of order must be
respected if we are to create anything that can be
called law, even bad law.” [this is the internal
morality of law – does not come from external moral
standards, but what features law must possess in
order to impose order; law must have certain
features to even exist, even if it is bad – this is the
internal morality of law]
• “[Hart] treats law as a datum projecting
itself into human experience and not as
an object of human striving”
• [law is not just ‘an expression of the
dimensions and directions of state
power’, but an object of human striving
towards order – subjecting human
conduct to the governance of rules]
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Grudge Informer
Cases
Nazi law: Wife cheating on husband; gets him convicted of offence of
criticising Hitler; he is sent back to the front as a solider.
When the war is over he seeks to sue her for illegal deprivation of liberty
Hart argues - law under which wife acted was legal at that time. It would be
preferable to be honest about that and offer a retroactive law to make her
conduct illegal than to pretend law can magically generate the solutions we
want.
Fuller - we should focus on the inner morality of law to deny the Nazi system
the title “law”. It was a system that was not only substantively morally wrong
but also legally chaotic - you could not know what the law was at a given
time and it was not applied correctly.
i.e. the husband’s offence of criticising Hitler took place privately; the statute
under which he was convicted only covered public criticism - on this basis
alone his detention was illegal and his wife could have been convicted
(along with other legal officials, etc).
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“Throughout his discussion Professor Hart seems to assume
that the only difference between Nazi law and, say, English law
is that the Nazis used their laws to achieve ends that are odious
to an Englishman. This assumption is, I think, seriously
mistaken, [because it also failed to respect the internal morality
of law itself]”
Fuller: “During the Nazi regime there were repeated rumors of
‘secret laws.’” … Now surely there can be no greater legal
monstrosity than a secret statute. Would anyone seriously
recommend that following the war the German courts should
have searched for unpublished laws among the files left by
Hitler's government so that citizens' rights could be determined
by a reference to these laws? The extent of the legislator's
obligation to make his laws known to his subjects is, of course, a
problem of legal morality that has been under active discussion
at least since the Secession of the Plebs.”
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“we have an amoral datum called law, which has the peculiar
quality of creating a moral duty to obey it. On the other hand,
we have a moral duty to do what we think is right and decent.
When we are confronted by a statute we believe to be
thoroughly evil, we have to choose between those two duties.
If this is the positivist position, then I have no hesitancy in
rejecting it. The "dilemma" it states has the verbal formulation
of a problem, but the problem it states makes no sense. It is
like saying I have to choose between giving food to a starving
man and being mimsy with the borogoves. I do not think it is
unfair to the positivistic philosophy to say that it never gives
any coherent meaning to the moral obligation of fidelity to law
… this seems to deny the possibility of any bridge between
the obligation to obey law and other moral obligations ”
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“[German legal positivism denied] any consideration of the moral
ends of law, but it was also indifferent to what I have called the
inner morality of law itself. [what features must social practices
have to be considered ordered enough to be ‘law’? why is law
worthy of allegiance?] . The German lawyer was therefore
peculiarly prepared to accept as "law" anything that called itself by
that name, was printed at government expense, … In the light of
these considerations I cannot see either absurdity or perversity in
the suggestion that the attitudes prevailing in the German legal
profession were helpful to the Nazis. Hitler did not come to power
by a violent revolution. He was Chancellor before he became the
Leader. The exploitation of legal forms started cautiously and
became bolder as power was consolidated. The first attacks on the
established order were on ramparts which, if they were manned by
anyone, were manned by lawyers and judges. These ramparts fell
almost without a struggle.”
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“To me there is nothing shocking in saying that a dictatorship
which clothes itself with a tinsel of legal form can so far depart
from the morality of order, from the inner morality of law itself,
that it ceases to be a legal system. When a system calling itself
law is predicated upon a general disregard by judges of the
terms of the laws they purport to enforce, when this system
habitually cures its legal irregularities, even the grossest, by
retroactive statutes, when it has only to resort to forays of terror
in the streets, which no one dares challenge, in order to escape
even those scant restraints imposed by the pretence of legality when all these things have become true of a dictatorship, it is
not hard for me, at least, to deny to it the name of law.”
[Social order, although effectively coerced and recognised, may
lose the attributes that are the internal morality of law]
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“… It was in those areas where the ends of
law were most odious by ordinary standards
of decency that the morality of law itself was
most flagrantly disregarded. In other words,
where one would have been most tempted
to say, "This is so evil it cannot be a law,"
one could usually have said instead, ‘This
thing is the product of a system so oblivious
to the morality of law that it is not entitled to
be called a law.’”
The Inner Morality of
Law
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The internal morality of law – the formal requirements it would have to meet
in order to qualify as ‘law’ –
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Eight requirements of legality:
1 Laws should be general
2 They should be promulgated, so that citizens know the standards to which
they are being held
3 Retroactive rule making and application should be minimised
4 Law should be understandable
5 Laws should not be contradictory
6 Laws should not require conduct beyond the abilities of those affected
7 They should remain relatively constant through time
8 There should be congruence between the laws as announced and those
applied
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Fuller suggests using these criteria in a legal system means you
are more likely to avoid evil ends and more likely to achieve
morally good outcomes - but is ambivalent about what those
outcomes are.
The value of the criteria is based on reciprocity between citizen
and government
From Morality of Law: “As the sociologist Simmel has observed,
there is a kind of reciprocity between government and the citizen
with respect to the observance of rules. Government says to the
citizen in effect, "These are the rules we expect you to follow. If
you follow them, you have our assurance that they are the rules
that will be applied to your conduct." When this bond of
reciprocity is finally and completely ruptured by government,
nothing is left on which to ground the citizen's duty to observe
the rules.”
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In presenting my analysis of the law's internal morality I have insisted that
it is indifferent toward the substantive aims of law and is ready to serve a
variety of such aims with equal efficacy.
One moral issue in lively debate today is that of contraception. Now it is
quite clear that the principles of legality are themselves incapable of
resolving this issue. It is also clear that a legal system might maintain its
internal integrity whether its rules were designed to prohibit or to
encourage contraception.
But a recognition that the internal morality of law may support and give
efficacy to a wide variety of substantive aims should not mislead us into
believing that any substantive aim may be adopted without compromise
of legality.
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Inner Morality as
Natural Law?
What I have tried to do is to discern and articulate the natural laws of a particular kind of
human undertaking, which I have described as "the enterprise of subjecting human
conduct to the governance of rules."
These natural laws have nothing to do with any "brooding omnipresence in the skies."
Nor have they the slightest affinity with any such proposition as that the practice of
contraception is a violation of God's law. They remain entirely terrestrial in origin and
application. They are not "higher" laws; if any metaphor of elevation is appropriate they
should be called "lower" laws.
Though these natural laws touch one of the most vital of human activities they obviously
do not exhaust the whole of man's moral life. If the question be raised whether any
subject should be taken as objects of legislation, that question relates to what I have
called the external morality of law.
What I have called the internal morality of law is in this sense a procedural version of
natural law, though to avoid misunderstanding the word "procedural" should be assigned
a special and expanded sense so that it would include, for example, a substantive
accord between official action and enacted law. The term "procedural" is, however,
broadly appropriate as indicating that we are concerned, not with the substantive 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
The View of Man in
the Inner Morality of
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Law
I come now to the most important respect in which an observance of the
demands of legal morality can serve the broader aims of human life generally.
This lies in the view of man implicit in the internal morality of law.
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I have repeatedly observed that legal morality can be said to be neutral over a
wide range of ethical issues. It cannot be neutral in its view of man himself. To
embark on the enterprise of subjecting human conduct to the governance of
rules involves of necessity a commitment to the view that man is, or can
become, a responsible agent, capable of understanding and following rules, and
answerable for his defaults.
Every departure from the principles of the law's inner morality is an affront to
man's dignity as a responsible agent. To judge his actions by unpublished or
retrospective laws, or to order him to do an act that is impossible, is to convey to
him your indifference to his powers of self-determination. Conversely, when the
view is accepted that man is incapable of responsible action, legal morality loses
its reason for being.
To judge his actions by unpublished or retrospective laws is no longer an affront,
for there is nothing left to affront - indeed, even the verb "to judge" becomes
itself incongruous in this context; we no longer judge a man, we act upon him.
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Ideals of the Inner
Morality of Law
Generality
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Universal/categorical application
Reasoned/administratively convenient
Goes to rationality of legal system, but does not sit well with judge made law.
Publicity
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Enables people to know where they stand vis-a-vis their legal obligations
Weber - won’t work with technical legislation - needs lawyers
Hayek - less important where the laws map to public expectations of morality
V.s. ignorance of the law not being a defence - can this be waived for technical laws?
Clarity and Comprehensibility
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The idea that the law may be void for vagueness and inability of a citizen to follow it
Does this permit broad principles in the law?
Consistency
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No forms of explicit contradiction
Subject to canons of interpretation
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Ideals of the Inner
Morality of Law
Practicability
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Can people practically hold and fulfill the
obligations law places on them?
Reasonableness
Constancy - if the law is rapidly changing difficult to
plan your behaviour around it
Congruence
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Different from other principles
concerned with application of law and use of
discretion
Retroactivity
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Retrospective legislation is legislation that attaches some legal consequence now and
for the future to an event or transaction that took place in the past.
Retroactive legislation operates on past events as though it were in force when the past
event took place.
Such retroactive legislation makes it impossible for a party to foresee that an action
innocent when it was done should afterwards be converted to guilt by subsequent law:
he had no cause to abstain from it.
I do not believe the distinction turns on the momentousness of the change. The status of
the act matters because it affects the way the action figures on a whole array of laws
and legal procedures. It is not merely at the moment of sentencing where a penalty is
finally attached to my action as a formal consequence, that the status of the act
becomes important. The status of the act is significant immediately in a whole variety of
ways.
A complex array of subsidiary legal provisions need to go into effect more or less
immediately upon the performance of the action complained of, but it cannot if, at that
moment, there is no provision designating the action complained of as an offense.
Any cases where retroactive laws are less of a problem?
Mala prohibita/ mala in se