Fuller's Natural Law Theory

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Copyright 2003 by Donald C. Hubin

Fullers Natural

Law Theory

Don Hubin


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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.


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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, notof individual laws. (That is, it asserts a holisticconnection, not an atomistic connection,between law and morality.)


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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 tomake law, and for eight different reasons.


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Failure #1: No Generality

Because Rex finds it hard to draft general

rules, he decides to take legal disputes on acase-by-case basis.

There are not general rules at allonly

particular decisions in particular cases.


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Failure #2: Secret Rules

When the case-by-case method failed,

Rex made general rules, but refused topublish them.

Though he tried to apply the rules as he had

written them, only he knew what the ruleswere.


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Failure #3: Retroactivity

When the problems with the secret statute

approach to law were apparent, Rex decidedhe 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.


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Failure #4: Unintelligibility

After complaints about the ex post facto

approach to law, Rex finally published alegal code. It was, though, (like our tax

code) completely unintelligible.

Though citizens had a published code inadvance, they could not understand it.


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Failure #5: Logical Inconsistency

Hurt by objections to his first attempt at

publishing a code in advance, Rex workedto make the code intelligible.Unfortunately, the new code was highlycontradictory

Not a single provision existed that was notcontradicted by another provision.


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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.


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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.


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Failure #8: Not Applied as Stated

Finally, Rex decided to solve the problems

with the excessive changes in the code bydeciding 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.


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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.


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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 theabsence of a legal systemnot merely the absence of a

goodlegal 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.


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Fullers Inner Morality of Law

These requirements constitute a sort ofprocedural moral requirement for legal

systems.Procedural Moral Requirement: They do notplace a content restriction on legal systems.

Legal Systems: They do not place any

restrictions on individual laws. Individual lawsmay have any of these eight features and still bevalid in virtue of their place in an existing legalsystem


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The Positivists Response

Positivists have three plausible responses to

Fullers argument: The Rag Response

The Changing the Definition of NLLT

Response The Nothing Special About Law Response


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The Rag 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 legalsystem.

Fuller has just drawn out an implication of positivism.


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Changing the Definition of NLLT

The classical debate between positivism and

NLLT has always been whether there aresubstantive limits on what can count as a

law or a legal system.

Fullers Inner Morality of Law argumentdoes not show that there are such limits.


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Nothing Special About Law

Furthermore, NLLT has always argued that

there is a connection between law andmorality that is special to law. That is, itis something about a systems being a legalsystem that establishes the connection.

Fullers Inner Morality of Law theoryholds equally of all systems of socialcontrol through rules.

Documents

Fuller's Natural Law Theory