Fuller, Lon Luvois

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by Kenneth Winston

The most renowned American legal theorist in the middle decades of the 20th century, Lon Fuller taught contract law and jurisprudence at Harvard Law School from 1939 until his retirement in 1972. He secured his place in American law in the early 1930s with three articles on legal fictions and probing critiques of legal realism. His work on “the reliance interest,” the doctrine of consideration, and other aspects of contract law established him as one of the most innovative and influential theorists in the field by mid-century. His hypothetical “Case of the Speluncean Explorers” (1949), an elegant portrayal of rival judicial philosophies, is a classic of the legal literature. And his published exchanges with the Oxford philosopher H. L. A. Hart, in the 1950s and 60s, set the terms of debate in jurisprudence for several generations of students.
In assessing these exchanges, many philosophers at the time thought that, while Hart displayed greater clarity and rigor in argument, Fuller had the more compelling view of law.  This assessment is evident, for example, in John Rawls’s reliance on Fuller for his remarks on law in A Theory of Justice and in Ronald Dworkin’s lifelong efforts to formulate a more sophisticated version of Fuller’s views. Hart’s work stimulated the growth of a branch of Anglo-American analytic philosophy that continues to flourish today, but many legal scholars believe that the consequent division of labor among academic specialists has led to an impoverishment of the field, especially in the neglect by philosophers of the sociological foundations of legal institutions necessary for an adequate grasp of law as a social phenomenon.

One reason for Hart’s dominance in philosophy is that Fuller was thought to conflate descriptive and evaluative elements (the is and the ought) in his account of law. Yet Fuller’s views on this issue are widely misunderstood, because they are judged in terms of conventional semantic theories and not placed in the pragmatist frame that guided his analysis. Of central importance is the practical nature of intellect. The human mind does not simply mirror an external reality, any more than human observation simply passively registers fixed properties of independently existing objects. Knowers are participants in the world, interacting with things in accordance with definite purposes. Thus, the human knower is active—selective, goal-directed, valuing, and objects of knowledge connect in definite ways to human inclinations, sentiments, and capacities to act.
Given the practical nature of intellect, definitions of phenomena are not compelled by the way the world is. Indeed the very idea of a true or correct definition is wrongheaded. No definition gives the essential nature of an object such as law; rather, there are diverse definitions, adopted by different writers concerned about different parts or aspects of the phenomena. This is especially so for social categories like law, since their manifestation is historically contingent and variable. Law as custom and law as legislation are (or have been) realities, and any definition which excluded one or the other would be arbitrary.

How then do we choose? What role does a definition play in inquiry? Like the pragmatists, Fuller regarded ideas as anticipatory and action guiding; they always mean something that does not yet exist, an ideal presence absent in fact (in William James’s phrase). To develop a thought’s meaning is to determine what direction it gives to the application of human energies. So, what is at stake in a particular definition of law is that it leads us to act one way rather than another. Accordingly, disagreements about the meaning of law are not verbal or semantic disputes; they are about what kind of professional one ought to be. Definitions of law (and conceptions of legal philosophy) encourage us to ask: “How would the adoption of one view or the other affect the way a lawyer, judge, or law teacher spent the working day?” The preferred thought is one that awakens our active impulses and leads us to conduct ourselves better than we otherwise would have done. In this way, Fuller attempted to capture the interaction and mutual dependence of law and morality in the work of professional lawyers and other collaborative participants in the creation of legal order.
This analysis makes clear that a pragmatic definition embodies a teleological factor combining the real and the ideal. To have assurance that an ideal is practical, it must be based on the experience of actual societies. At the same time, it cannot simply recapitulate what already exists. Rather, it extrapolates from an existing pattern or tendency and envisions it as perfected in some crucial way. The model then offers a critical standpoint from which to assess the ongoing activity and suggest improvement. Of course, one must not be so overly impressed by the ideal as to neglect the fact that the actual only partly embodies it, and one must not be so overly impressed by the real that one neglects the active striving toward an ideal. On one side, law is not simply reason or justice; on the other, law is not simply the will of the sovereign or the interest of the dominant class. Reason and fiat are intertwined, and it is a question for inquiry what the exact mix is at a given historical moment.

In Fuller’s account, there is no illusion that the law of any given time and place is anything other than what it is. In fact, Fuller was inclined to dwell on the way things can go wrong in the law —the pathological cases— including most famously the parable of the hapless king Rex who nobly attempts to make laws for his subjects and fails, in eight ways that illuminate “the morality that makes law possible.” The tenets of this morality may be stated briefly as follows: [1] generality: there must be rules; [2] publicity: the rules must be made available to those expected to comply with them; [3] prospectivity: the rules must typically be enacted and promulgated prior to the time when compliance is expected, hence not retroactive; [4] clarity: the rules must be understandable or intelligible to legal subjects; [5] non-contradictoriness: the rules must not require conflicting actions; [6] conformability: the rules must not require actions that are impossible to perform; [7] stability: the rules must remain relatively constant over time; [8] congruence: the rules promulgated by the lawmaker must be the rules actually administered and enforced.
Why does violation of these principles constitute failure? Given Fuller’s pragmatist orientation, the critical issue for lawmaking is how it directs the application of human energies. Building on Locke’s proposition that the good legislator provides intelligent guidance to rational beings, Fuller describes Rex’s aim —the aim he failed to achieve— as subjecting human conduct to the governance of rules. This is not chosen at random. The use of rules is not instrumental to some other aim but part of the aim itself. Why? The brief answer is that governing by rules involves recognition of citizens as responsible moral agents. This idea has both a descriptive and a normative component. Descriptively, it refers to the capacity of citizens to engage in practical deliberation and accept responsibility for their actions. Normatively, it involves acknowledgement by the lawgiver of the rightfulness of citizens exercising such agency. As John Rawls would note, respect for the moral competence of persons is intimately connected to certain prima facie duties. The principles of the internal morality capture the conditions of respect between lawmaker and citizen by giving expression to eight prima facie duties of the lawmaker. For a lawmaker to acknowledge these duties, and thus to govern by rules, is to stand in moral relation to legal subjects.

The further point is that the morality of lawmaking (the ideal element in legislation) is derived from the character of the enterprise itself, not some external source. The lawmaker who labors to make statutes intelligible and consistent and prospective is fulfilling a moral responsibility to citizens drawn from an understanding of why modern states would have statutes at all. Thus, the “internal morality of law” consists of just those standards that must be honored if the right relationship between lawmaker and citizen is to be maintained, as essential components of the institution’s distinctive mission.
Of course, not all states are modern states, and not all lawmaking is done by legislators. A second respect in which Fuller departs from ordinary definitions is in his commitment to legal pluralism. Law is not a unitary phenomenon that takes the same form wherever it appears. It consists, rather, of a diverse set of formal processes that yield authoritative rules or decisions — only a subset of which is likely to be found, at least in a dominant role, in any legal community. By suggesting that law can appear in different forms in different places, pluralism helps us set aside the parochial view that law is peculiarly western or peculiarly modern. The main processes that Fuller discussed at length are adjudication, mediation, legislation, contract, and managerial direction. Each process has two principal components. First, it has a characteristic design that makes it suitable for reaching certain kinds of outcomes (a decision, an agreement, a rule) and not others. This design or pattern serves to guide the functioning of any actual institution in which the model is operative. It is thus a limiting conception, a principle of order for the arrangement of human affairs. Second, it has as constitutive elements characteristic moral principles —for example, impartiality (for adjudication), equality (for contract), legality (for legislation)—  which specify the distinctive moral duties of officials, and perhaps others, who act within the institutional structure. These principles constitute the internal morality of the process in question. Like principles of due process, their moral importance is largely, even if not entirely, independent of whatever connection they may have to desired outcomes.

Although Fuller never gave a comprehensive account of the forms of legal order, he coined a term for the theoretical effort he envisioned: “eunomics,” which he defined as the science or study of good order and workable arrangements. His various essays on particular forms of order were his “exercises in eunomics.” Fuller viewed the diverse forms of legal order dynamically, that is, not just as determinate structures of norms or rules but reasoned responses to problematic situations common to human societies. This brings out their moral as well as their purposive aspects. Since people reflect on what they are doing, they construct models of possible structures, which then guide the emergence of specific practices and provide patterns for evaluating their success. Thus, the models are focal points of human striving; they embody moral aspirations and define moral relationships. The central task of eunomics is to describe these models in detail and assess the possibilities for their realization. The contextual factors that enhance or impair the effectiveness of particular structures determine whether or not an existing social problem can be collectively managed, and how. We want to know where a mechanism works and where it does not and cannot be made to. Thus, eunomics is a branch of moral sociology, involving evaluative judgments about the interplay of means and ends. It deals with the conditions for the effective pursuit of collective aims and ideals, as well as criteria for assessing the appropriateness of those aims and ideals —and for reconstructing them— in light of available means.
Here, too, Fuller is concerned with what it means to be a professional. He rejected the legal realist conception to the extent that it turned lawyers into masters of technique without regard to the ends they serve. For realists, law becomes a means to ends that originate outside itself. It thereby excludes from the scope of professional responsibilities the lawyers’ duty to think about what the law ought to be. The separation of means and ends is contrary to what Fuller believed lawyers actually do (at least many of them), which is to devise formal structures into which citizens’ various interests can be accommodated in ways that are fair, decent, and workable. Whether arbitrating a dispute, drawing up a contract, or writing a statute, the common thread is problems of human organization, and lawyers are architects of social structure. Such a responsibility cannot be carried out without a simultaneous focus on means and ends. Thus, the lawyer’s job is not simply to think about what legally can be done but about what ought to be done, all things considered.

This is a very demanding view of the legal professional. Was Fuller similarly demanding of citizens? Did he expect institutional forms to realize moral outcomes without presupposing certain qualities of citizens —civic-minded, well-informed, self-restrained? Are institutional arrangements meant to compensate for a lack of virtue and intelligence? Fuller’s stress was on the limits of what law can do. With his special emphasis on fostering decency and fairness in human relationships, Fuller was sufficiently confident in the good nature of men and women to be optimistic about their ability to achieve a program of living together. This meliorism infused his idea of democracy, which presupposes that conflicts can be resolved through discussion and public accountability. The role of law in these efforts is more facilitative than directive. Instead of imposing prescriptive rules backed by threats or micromanaging administrative agencies, legislators should ensure the availability of mechanisms by which citizens can exercise effective and responsible choice. The good legislator aims to release human energies, not just harness them, by setting baselines for self-directed actions. Thus, Fuller was a theorist of private much more than of public law, emphasizing voluntary forms of cooperation that enable citizens to develop the moral dispositions necessary to becoming productive members of society, including the capacity to make effective and responsible decisions and to practice a democratic way of life.
In this view, the affinities between legal rules and social expectations must be close. In some places, Fuller pictured law as emergent out of social practices, the articulate or formalized expression of pervasive and settled conventions. Law then consists not only of discrete and readily identified official declarations but is continuous with norms and understandings that are partly inchoate and evolving. What lies beyond official notice at any moment is broader and deeper than, and gives shape and force to, what is evident. This is not to say that legal rules always do or should reflect existing social norms. But background social practices provide a critical resource for judges and other interpreters of legal rules —a context of expectations, social purposes, and principles for deciding cases where the articulate law is indeterminate or pulls in contrary directions. Conversely, the more legal decision making departs from everyday understandings of fair and impartial treatment of legitimate claims, the more it must rely on coercive threats and hence the less authority it has.  In that state of affairs, positive law undermines sociality.

Today, some philosophers are discovering that Fuller was right all along to reject the dichotomy of the is and the ought, and they have come to embrace the “conflation,” at least in certain contexts. They realize that, when the analytic distinction between fact and value was turned into a metaphysical dualism, it was based on false premises. Hilary Putnam, for example, has observed that empiricism and logical positivism led philosophers astray, and he for one has returned for enlightenment to the writings of John Dewey, who was of course one of Fuller’s principal intellectual guides. Ironically, the neo-Deweyans fail to note that some philosophers resisted empiricism and logical positivism all along. Fuller was in that camp.
Other recent writings that are part of the rediscovery of Fuller include David Luban’s illuminating work on legal ethics and Gerald Postema’s sensitive accounts of the social underpinnings of law in tacit expectations and informal interaction. It is also heartening to note the revival of interest in Fuller’s work evident in symposia, doctoral dissertations, and journal articles in countries around the world, especially the Netherlands, Canada, and China.

Brief bibliography

David Luban, “Rediscovering Fuller’s Legal Ethics,” The Georgetown Journal of Legal Ethics XI:4 (1998), 801-829.

Gerald J. Postema, “Implicit Law,” in Rediscovering Fuller: Essays on Implicit Law and Institutional Design, eds.,

Willem J. Witteveen and Wibren van der Burg (Amsterdam: Amsterdam University Press, 1999), 255-275.

Hilary Putnam, The Collapse of the Fact/Value Dichotomy (Cambridge: Harvard University Press, 2002).

Philip Selznick, “Integrity and Responsibility,” in The Moral Commonwealth: Social Theory and the Promise of Community (Berkeley: University of California Press, 1992).

Kenneth Winston, ed., The Principles of Social Order: Selected Essays of Lon L. Fuller, revised edition (Oxford: Hart Publishing, 2001).

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