Lon. L.

Fuller
Prepared by –
Asstt. Prof. Setu Gupta
Introduction
• Leading natural lawyer
• The core of his thesis revolves around the conditions that he
considers sine quibus non for the functioning of laws.
• He calls law as ‘the enterprise of subjecting human conduct to the
governance of rules’.
Two Aspects of Morality
• Internal morality

• External morality
• External Morality is the ‘morality of aspiration’ and ideals from which
substantive natural law can be derived.

• It involves a meaningful contact of human beings with each other

from which they can improve and enrich themselves.

• This substantive natural law concerns those fundamental rules

without which meaningful co-existence cannot occur.
• Internal Morality makes no appeal to external standards and is rather
concerned with a ‘procedural version of natural law’.

• This kind of morality makes the governance of human conduct, by

rules, possible.

• Fuller says that while a judge may stay neutral with regard to external
morality, for him to stay neutral with regard to internal morality
would be against the duties he is supposed to discharge by virtue of
his office.
Eight Desiderata
• Fuller says there are eight essential requirements (internal moral
requirements) that a law should fulfill, if it is to be expected that the
law be obeyed:

✓ Existent, not ad hoc

✓Promulgated

✓Prospective not retrospective

✓Clearly stated and comprehensive

✓Its various aspects must be consistent with each other

✓Possible to be obeyed

✓Constant, relatively long-lasting

✓Applied and administered as stated

• This “inner morality” is not something that is superimposed on the
authority of the law, but is rather, an essential condition of that
power itself.
• It can also be called as a “precondition of good law”.
• Immoral policies will impair the inner morality of law thereby
impacting the very quality of law.
• These conditions are ‘natural’ in the sense that they are founded on
the very nature of human beings and society.
• They are the natural limitations that constitute the conditions for the
successful functioning of duty-creating laws.
Dias’ criticism
• What should a judge do when a decree violating inner morality is
promulgated in such a way that no one could read it. Ex: Caligula.
• Should the judge refuse to acknowledge it as a law?
• Fuller does not give an answer.
• If the judge refuses to apply it as being violative of the inner morality
content, the judge will get into trouble.
Hart’s criticism
• The eight desiderata are ‘unfortunately compatible with very great iniquity’
• Eg: Herod’s order for the massacre of innocents satisfies all eight
conditions.
• Fuller’s reply – iniquitous regimes have not continued to exist nor could
they combine evil policies with fidelity to ‘inner morality’.
• Interpretation of Fuller’s reply – he is thinking in a continuum which is very
much compatible with idea of conditions needed for continued functioning
of laws. Hart, on the other hand, is talking about the here and now effect
of an iniquitous decree rather than the larger continuum picture. So, in
essence, they are talking about two different time-frames. So, no conflict.
Hart-Fuller Debate
• It started with H.L.A. Hart, in his guest lecture at Harvard Law, called
Positivism and the separation of law and morals, which was later on
published in Harvard law Review.
• Hart protested judges and jurists too frequently try to pass off
imposition of their own individual political and moral views as legal
interpretation.
• He believed there ought to be clarity and candour in legal
interpretation, not moralizing or pursuit of individual political goals
masquerading as law.
• Hart’s American contemporaries had rejected positivism as they
regarded it as a kind of formalism as well as accused it of being
simpleminded. But this was the gateway to all sorts of interpretative
means and methods that obscured and misrepresented the law.
• Hart argued that this lack of clarity and candor was regrettable.
• Basically, Hart was against the judges ascertaining what the law is by
reverse-engineering from they believed the law ought to be.
• Fuller responded by saying that - Knowing what the law says requires
identifying those principles and ideas in it that merit allegiance.
Problem of Law as command
• Austinian positivism criticized.
• Hart’s defence – It should be remembered that Hart was against the
Austinian concept of law being merely a fiat of power. And that’s why
Hart conceptualized his theory of primary and secondary rules.
Problem of penumbra
• Problem for positivists.
• Occasionally, to determine meaning of words within the law when
established meaning seems obsolete, judges interpret.
• Even positivist judges are deciding what ‘is’ by ‘what ought to be’.
When the meaning is not clear, they are interpreting it by what it
should mean.
• Hart suggests that this problem is easily solved if you don’t
understand this ‘what ought to be’ in moral way, but rather as a ‘part
of a rational legal system’. So this ‘ought’ is not appealing outside of
the law’ but rather with the legal framework itself.
• Hart’s example of vehicles banned from parks – bicycle not intended
– motorized vehicles intended. Hart – interpretation internal to law,
Fuller – interpretation outside the law.
Problem of morally bad law
• Legal regime of the Third Reich.
• Internally consistent but morally bad laws.
• Natural law theorists argue that you must have some higher
principles otherwise you have no bases to condemn the action of the
Nazis.
• Fuller drew his attention to the question as to what in Hart’s opinion
should have been the fate of the woman in the Grudge Informer case.
(N.B. - She was punished for snitching on her husband ignoring the
minimum consciousness of law, even though she followed the letter
of Nazi law)
• In order to overcome this problem – Hart allows certain minimum
content of morality. Absolute minimum. Only so much moral
infiltration as is necessary to maintain the consistency of the legal
system.
• Fuller accuses Hart of focusing on ‘fidelity to law’. Fuller says this
doctrine does not come out of the law itself as positivists claim but its
something that is outside/beyond the legal system.
• Fuller says positivists recognize this (what Hart calls minimum content
of morality) but accuse natural law theorists of bringing in morality to
law.
• This minimum element of morality is regarded by Fuller as some
common ground on which the debate can be furthered.
• To this day, their own respective followers continue this debate.
The End