Fuller and the Law

This essay first appeared as an editorial in the journal Literature of Liberty: A Review of Contemporary Liberal Thought, Autumn 1980, vol. III, no. 3, published by the Cato Institute (1978-1979) and the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio. Although the editorials were unsigned, they were probably written by the Editor Leonard P. Liggio or the Managing Editor John V. Cody. It is republished with thanks to the original copyright holders.

Lon L. Fuller's contributions have been a major milestone in modern moral and legal philosophy. Fuller's approach to legal and moral philosophy seemed to parallel the concepts which Pavia University legal theorist, F. A. Hayek has attempted to focus attention on the opposition between law and government statutes.

Fuller rejected coercion and hierarchies of command as identifying characteristics of law (see Fuller's The Morality of Law, 1964). Here also Fuller's attitude appears compatible with Hayek's concept of spontaneous order. Social activities and relations, including economic activities or exchanges, are legitimate and workable only in the context of personal freedom of action and choice. Hayek has emphasized the coordination role performed by individual judgments operating in freedom from statute law. Fuller, likewise, has identified a coordination role as central to human action. Fuller has identified the process of discovery of legal principles expressed in common law, custom, etc., as the natural law tradition. He identified with the system of legal thinking in the natural law tradition because it exemplified man's purposive and aspirational nature, emphasized the role of human reason, and opposed the arbitrariness of governing man. The role of command is excluded from the natural law tradition.

Hayek and Leoni have underscored the analogy between legislation and money. The denationalization or depoliticization of money and of law are seen as comparable processes in harmony with the natural order. The causes of the inflation of money and the inflation of legislation, with the good being depreciated and driven from use by the bad, are envisioned as similar in concept and in practice. The intrusion of government whether into the natural monetary process or the natural legal process creates disorder and depreciates the value of both money and law. Sound money and sound law, resembling sound science and technology, must be based upon a process of discovery and choice and not upon coercion, which is the basis of legislation. In a passage reminiscent of Cicero's stress on the value of the slow, organic growth of Roman law, which is the basis of legislation, Leoni notes:

Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in “better” statutes instead of in something altogether different from legislation.

Eric A. Havelock, in The Liberal Temper in Greek Politics (1957) indicates the Hellenistic origins of the concept of natural law and of its expression in the idea of liberty as freedom from coercion by other men. Leoni has commented:

The paradoxical situation of our times is that we are governed by men, not, as the classical Aristotelian theory would contend, because we are not governed by laws, but because we are. In this situation it would be of very little use to invoke the law against such men. Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system. If one values individual freedom of action and decision, one cannot avoid the conclusion that there must be something wrong with the whole system.

Lon Fuller, like Dean Roscoe Pound, has been a leading critic of legal positivism. “Specifically the problem is that of choosing between two competing directions of legal thought which may be labeled natural law and legal positivism. In The Law in Quest of Itself (1940), Fuller wrote that natural law “is the view which denies the possibility of a rigid separation of the is and the ought.” Fuller held that being and value were two aspects of a single reality. Nature or reality contained both an is and an ought. Natural law was discoverable in the process of human activity. F. A. Hayek, in The Rule of Law (Studies in Law, Institute for Humane Studies, 1975) observed:

What all the schools of natural law agree upon is the existence of rules which are not of the deliberate making of any lawgiver. They agree that all positive law derives its validity from some rules that have not in this sense been made by men but which can be “found” and that these rules provide both the criterion for the justice of positive law and the ground for men's obedience to it. Whether they seek the answer in divine inspiration or in the inherent powers of human reason, or in principles which are not themselves part of human reason but constitute non-rational factors that govern the working of the human intellect, or whether they conceive of the natural law as permanent and immutable or as variable in content, they all seek to answer a question which positivism does not recognize. For the latter, law by definition consists exclusively of deliberate commands of a human will.

Hayek's characterization of natural law in opposition to positivism or legal realism finds an interesting analogue in H. L. A. Hart's contrast between two extremes of American jurisprudence, “the Nightmare and the Noble Dream.” For Hart, the “Nightmare” is the view that judges always make and never find the law they impose on litigants. The opposed view of the “Noble Dream” is that the judge never functions as a legislator but rather lives up to Lord Radcliffe's ideal judge: the “objective, impartial, erudite, and experienced declarer of the law.” [See H. L. A. Hart, “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream.” Georgia Law Review 11 (September 1977): 969–989.]