The Online Library of Liberty

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• Literature of Liberty a Review of Contemporary Liberal Thought
• Editorial Staff
• Associate Editors
• Editorial
• Bibliographical Essay: John N. Gray, John Stuart Mill: Traditional and Revisionist Interpretations
• I: Legal Philosophy
• Hayek and the Rule of Law
• Law, Telos, and Authority
• Aquinas and Natural Law
• Legal Naturalism and Just Legal Systems
• Lon Fuller and Natural Law
• Legal Realism Vs. Morality
• Legal Philosophy and the Founding Fathers
• Law and Scientific Inquiry
• Freedom of Inquiry Vs. Critical Theory
• Horwitz: Law and Economic Interests
• II: Republican Ideology
• Civic Virtue, Mercantilism, and Liberalism
• Republican People's Militias
• Gibbon On Virtue, Property, and Militias
• The Unwritten Common Law
• Republicanism and Inheritance
• Abraham Clark's Radical Republicanism
• Herman Husband's Republican Vision
• John Taylor and Republicanism
• Adams, Factions, and a Balanced Constitution
• Republican Farmer-citizens and Free Trade
• Madison and Scotland
• Non-lockean Thought and the Declaration
• Republicanism: Virtue Or Lockean Individualism?
• Jefferson's Declaration: Lockean Or Scottish?
• III: Self-interest, Social Harmony, and Aggression
• Cultural Evolution As Spontaneous Order
• Spontaneous Order In Human Action
• Aggression: a Sociobiological View
• Sociobiology's Program and Weaknesses
• Aggression Vs. Cooperation
• Natural Values and Individual Decisions
• Sociobiology and Ethics
• Self-interest: an Invisible Hand For Social Good
• Is Market Self-interest Socially Responsible?
• Is Egoism a Valid Ethic?
• Egocentric Altruism
• Individual Assertion Vs. Aggression
• Constructive Assertiveness
• Liberalism and Self-interest
• Sociology: Holism Vs. Individualism
• IV: Iv Economic Schools and Analysis
• Ancient Greek Economic Thought
• Scholastic Economic Thought
• Scholasticism and Austrian Economics
• Mercantilism Vs. Economic Liberalism
• The Social Meaning of Economic Liberalism
• Adam Smith Scholarship
• Jevons and Laissez-faire
• Social Sciences and the “methodenstreit”
• The Limits of Mechanistic Economics
• The Limits of Mechanistic Economics
• Austrian Economics Vs. the Mixed Economy
• Macroeconomic Formalism Vs. Human Action

Lon Fuller and Natural Law

K. E. Dawkins

• University of Otago Law School, New Zealand

“The Legal Philosophy of Lon L. Fuller: A Natural Law Perspective.” Otago Law Review 4 (1977): 67–86.

Within the tradition of natural law philosophy, Professor Lon Fuller turns away from the predictive, imperative, or hierarchic conception of law and rejects coercion and formal hierarchies of command as the identifying characteristics of law. Fuller approaches law “not in terms of definitions and authoritative sources, but in terms of problems and functions.” In Fuller's model, law is interactional, a purposive and collaborative endeavor, rather than a one-way projection of authority.

For Fuller, law is terrestrial in origin and application, a purposive “enterprise” or “activity” rather than a “higher” or transcendent human endeavor against which positive law must be measured and to which it must conform. He rejects the notion that there exists something fixed called “the natural law” which offers an eternal, immutable “code of conduct.” Nevertheless, Fuller approves of “the kind of legal thinking” exemplified by the natural law tradition because of its aspirational and purposive conception of man and the role it has accorded human reason as opposed to arbitrariness in governing man. He interprets natural law as an active process of inquiry rather than as a general ethical theorem.

Fuller emphasizes both the idea of purpose in law and the importance of reason in the development and administration of legal institutions. The relationship between Fuller's concept of law and the intellectual tradition of natural law may be observed along several dimensions: (1) Teleological conception of law and man: the central aim of human endeavor is “communication”—reaching an understanding with and coordinating efforts with others motivates human aspiration—rather than the Hobbesian notion of self-preservation; (2) Natural reason and human fiat: rejecting the extremes of natural law and legal positivism, recognizing that the reality of the legal order is the creature of both human reason and human artifice; (3) Coalescence of fact and value: refusing to recognize a distinction between the law as is and the law as ought to be; and (4) Economics and natural laws of social order: “eunomics” or “the science, theory or study of good order and workable arrangements.”

In Fuller's perspective, a legal system which merely “clothes itself with a tinsel of legal form” and wholly fails to observe his eight principles of procedural law is not properly regarded as a legal system. These desiderata, which constitute the “internal morality of law,” are: (1) Generality —legal system should achieve general rules; (2) Promulgation—laws should be published; (3) Prospectivity—laws should be prospective; (4) Clarity—laws should be clearly stated and understandable; (5) Compatibility—laws should be compatible with one another; (6) Possibility—laws should not command the impossible; (7) Constancy—laws should not be subject to constant change; (8) Congruence—consistency between the law as declared and as administered. The formulation of procedural natural law is accomplished not by reference to external standards of morality or to the substantive aims of law but by postulating moral desiderata inherent in the law itself.

Fuller's concept of law may be characterized as a natural law position in studying the human condition's basic qualities; in adopting a purposive and aspirational conception of man; and, lastly, in building procedural rather than substantive ideas of “goodness” into the notion of law as good order which may then be evaluated by an internal morality contemplating the standard of a free, voluntaristic, and responsible agent.