Background Lon Fuller develops and defends a modern version of Natural Law Legal Theory. Like any NLLT, it holds that there is a conceptual connection between law and morality.
Fullers Theory and Classical Natural Law Legal Theory Fullers theory differs from Classical NLLT in at least two ways: –It is not committed to Natural Law Ethical Theory –It applies at the level of the entire system, not of individual laws. (That is, it asserts a holistic connection, not an atomistic connection, between law and morality.)
Eight Ways to Fail to Make Law Rexs Troubles: –Rex, the newly installed king, is determined to improve the legal system of his country. –He sets about to make reforms in the legal system only to make one blunder after another. –If Fuller is right, Rex fails on eight occasions to make law, and for eight different reasons.
Failure #1: No Generality Because Rex finds it hard to draft general rules, he decides to take legal disputes on a case-by-case basis. There are not general rules at allonly particular decisions in particular cases.
Failure #2: Secret Rules When the case-by-case method failed, Rex made general rules, but refused to publish them. Though he tried to apply the rules as he had written them, only he knew what the rules were.
Failure #3: Retroactivity When the problems with the secret statute approach to law were apparent, Rex decided he would decide all cases at the end of the year and publish the rules of law he had used to decide them. No rules of law were made before they were applied.
Failure #4: Unintelligibility After complaints about the ex post facto approach to law, Rex finally published a legal code. It was, though, (like our tax code) completely unintelligible. Though citizens had a published code in advance, they could not understand it.
Failure #5: Logical Inconsistency Hurt by objections to his first attempt at publishing a code in advance, Rex worked to make the code intelligible. Unfortunately, the new code was highly contradictory Not a single provision existed that was not contradicted by another provision.
Failure #6: Requiring Impossible Actions When his subjects rejected his contradictory code, Rex was, frankly, irritated with them He published a code that required of his subjects actions that it was impossible for them to perform.
Failure #7: Excessive Change Rex worked hard to redraft the laweven enlisting the help of a group of experts. No sooner had the new code gone into effect than it was completely replaced by another, and that by another, and another. The law changed day-by-day, minute-by- minute.
Failure #8: Not Applied as Stated Finally, Rex decided to solve the problems with the excessive changes in the code by deciding cases himself. Sometimes he would decide them in accordance with the code, often not. The statutes were no help in determining how a case would be decided.
8 Ways to Fail to Make Law Fuller argues that the parable shows that law must, as a conceptual matter, in general be: –General; –Promulgated (published); –Prospective (non retroactive); –Intelligible; –Logically consistent; –Such as to require only the possible; –Relatively constant over time; and, –Applied as stated.
Fullers Argument for NLLT These eight requirements are uncontroversial requirements on the existence of a legal system. –Complete failure in any of the eight respects entails the absence of a legal systemnot merely the absence of a good legal system Each of the eight requirements is, as well, a moral requirement. –To the degree that any system of social control falls short with respect to any of these, it is morally deficient.
Fullers Inner Morality of Law These requirements constitute a sort of procedural moral requirement for legal systems. –Procedural Moral Requirement: They do not place a content restriction on legal systems. –Legal Systems: They do not place any restrictions on individual laws. Individual laws may have any of these eight features and still be valid in virtue of their place in an existing legal system
The Positivists Response Positivists have three plausible responses to Fullers argument: –The Ragú Response –The Changing the Definition of NLLT Response –The Nothing Special About Law Response
The Ragú Response Its Already In There! –Positivists have always said that law is a system of social control through rules. –That means that whatever is necessary for social control through rules is a requirement on a legal system. –Fuller has just drawn out an implication of positivism.
Changing the Definition of NLLT The classical debate between positivism and NLLT has always been whether there are substantive limits on what can count as a law or a legal system. Fullers Inner Morality of Law argument does not show that there are such limits.
Nothing Special About Law Furthermore, NLLT has always argued that there is a connection between law and morality that is special to law. That is, it is something about a systems being a legal system that establishes the connection. Fullers Inner Morality of Law theory holds equally of all systems of social control through rules.