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Fuller's Eight Principles of Law

Fuller's theory of the "inner morality of law" argues that there are procedural principles laws must follow to be considered true rules that guide behavior. Specifically, laws must be achievable, publicized, non-retroactive, clear, non-contradictory, requiring actions within peoples' powers, stable over time, and administered as announced. If laws fail these standards, they cannot effectively shape conduct or maintain the reciprocity between a government and its citizens that compels obedience to rules. Fuller outlines these principles through the allegory of Rex, an inept king who fails to properly make laws.

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0% found this document useful (0 votes)
127 views2 pages

Fuller's Eight Principles of Law

Fuller's theory of the "inner morality of law" argues that there are procedural principles laws must follow to be considered true rules that guide behavior. Specifically, laws must be achievable, publicized, non-retroactive, clear, non-contradictory, requiring actions within peoples' powers, stable over time, and administered as announced. If laws fail these standards, they cannot effectively shape conduct or maintain the reciprocity between a government and its citizens that compels obedience to rules. Fuller outlines these principles through the allegory of Rex, an inept king who fails to properly make laws.

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Lecture Notes – Lon Fuller The Morality of Law (“Eight Ways to Fail to Make Law”)

• Fuller’s theory falls somewhere between natural law and legal positivism.
o It is positivistic insofar as he does not think that morality determines the content of the
law.
o It is a natural law theory in that he does believe that there are “moral” constraints on
the structure of law and how it is made.
• Fuller’s focus is on what he calls the “inner morality of law.”
o The external morality of law would be the application of moral standards distinct from
law to the law itself, much like the traditional natural law theorist does.
o The inner morality of law instead derives constraints on law from the ends or goals of
making law.
▪ He argues that this is a kind of natural law theory, and, in fact, one that we see
in the opinions of British jurists and in the writings of the US Founding Fathers,
who aimed to “avoid repugnancies” in their institutions.
• For example, in defending the power of the courts to declare acts of
Congress unconstitutional, Hamilton argues that even in the absence a
written constitution judges are compelled to set a rule for dealing with
contradictory enactments of law, but that such a rule is derived “not
from any positive law, but from the nature and reason of the thing.”
• In further describing the inner morality of law, Fuller calls his account a “procedural” rather than
a “substantive” natural law theory.
o Procedural: “Concerned, not with the substantive aims of legal rules, but with the ways
in which a system of rules for governing human conduct must be constructed and
administered if it is to be efficacious and at the same time remain what it purports to
be.”
o A procedural natural law account provides “lower” rather than a “higher” laws…it is not
concerned with any “brooding omnipresence in the skies.”
▪ Rather, it’s laws are like the laws of carpentry…if you want to build a good
house, there are certain rules and procedures you will have to follow.
• The rules and procedures for successfully making law are not best understood as imposing
duties on the lawmaker.
o Rather, they are a kind of affirmative or aspirational morality. They set aims that the
lawmaker should strive for, but not duties that are somehow binding on them.
▪ There is one exception: There is a duty to promulgate the laws.
• The eight particular rules and procedures for making law that Fuller defends are laid out in the
allegory of Rex, the failed king.
o One should actually make/achieve rules.
o One must publicize those rules and make them available to the affected parties.
o One should avoid retroactive legislation.
o One should aim to make rules understandable by those who they affect.
o One should not enact contradictory rules.
o One should not enact rules that require conduct beyond what is possible or within the
powers of the affected parties.

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o One should not frequently change the rules.
o One should aim for congruence between the rules as announced and their actual
administration.
• The common link between these is that laws (or a system of laws) that don’t meet these
requirements will not serve to guide the conduct or shape the behavior of those who are subject
to the laws.
o Failure to provide this guidance in a clear way constitutes a failure of reciprocity
between government and governed:
▪ Gov’t says: These are the rules we expect you to follow. If you follow them, you
have assurance that they are the rules that will be applied to your conduct.
• When this reciprocity is ruptured, nothing is left to ground the citizens
duty to obey the rules.

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Failure to achieve congruence between announced rules and their actual administration affects the relationship between government and governed by breaking the trust and predictability that the rule of law is supposed to offer. It undermines the credibility of the government, as citizens may perceive the law as arbitrary or unfairly applied. This disruption of trust means that citizens can no longer rely on the law to guide their behavior accurately, diminishing their willingness to comply with legal norms and damaging the overall legitimacy of the legal system .

Reciprocity in Fuller's legal theory is crucial as it establishes a mutual understanding and expectation between the government and the governed. This principle is fundamental to the law's ability to guide behavior because it promises individuals that adherence to the law will be met with consistent and predictable official actions. Reciprocity requires that laws are clear, public, and stable, ensuring that citizens can reasonably rely on the law to protect their rights and interests while expecting them to comply. A breakdown in reciprocity undermines trust and the perceived legitimacy of the law, reducing its efficacy in guiding behavior .

Fuller’s "inner morality of law" would guide judicial interpretation in unconstitutional cases by prioritizing the adherence to procedural principles such as non-contradiction, public accessibility of law, and congruence between the law's text and its enforcement. Judges would focus on these procedural aspects to ensure that laws truly serve their purpose of guiding behavior. This means that judicial decisions would likely seek to rectify any procedural failures that led to unconstitutional situations, ensuring laws are correctly formulated, publicly known, and consistently applied, leaning more towards just outcomes based on systematic integrity rather than purely textual interpretations .

In Fuller's framework, congruence between announced rules and their administration is vital for maintaining the integrity and effectiveness of a legal system. This aspect of legal morality ensures that there is no discrepancy between the law as it is written and the law as it is applied, thus preventing arbitrary or unexpected enforcement. Maintaining congruence symbolizes a commitment to transparency and predictability, which are essential for a legal system to be perceived as just and for citizens to be able to trust and rely on the legal order .

In the context of lawmaking, Fuller refers to "aspirational morality" as the ideals and goals that lawmakers should strive to achieve when creating laws. These are not binding duties but guidelines aimed at creating an effective and just legal system. Aspirational morality represents the best practices and standards in law construction, such as clarity, coherence, and public accessibility, which aim at optimizing the law’s function. This contrasts with binding duties which are obligatory and impose legal consequences upon violation, while aspirational morality guides toward ideal but non-mandatory standards .

Lon Fuller's concept of the "inner morality of law" bridges a gap between traditional natural law theory and legal positivism. Unlike traditional natural law, Fuller's theory does not base the content of law on morality. However, it posits "moral" constraints on how laws are structured and enacted, aligning it with natural law in this procedural sense. This is different from legal positivism, which does not see morality as inherent to the law. Instead of focusing on external moral standards, Fuller’s theory focuses on procedural requirements necessary for a legal system to function effectively, suggesting that such systems have an internal moral structure rooted in the ends of lawmaking .

Failure to avoid retroactive legislation, according to Fuller's principles, undermines the ability of a legal system to effectively guide conduct because it creates laws that individuals cannot anticipate or prepare for prior to their enactment. This erodes the principle of predictability in legal systems, which is fundamental for individuals to make informed decisions regarding their actions. Retroactive legislation therefore disrupts the social contract between the governed and their governors, potentially leading to a breakdown in the sense of fair treatment and stability that a legal system is intended to provide .

Fuller uses the analogy of carpentry to illustrate that, like carpentry requires certain rules and procedures to build a functional structure, the "inner morality of law" requires a set framework of procedural standards to construct a successful legal system. These are not abstract or high-level moral truths, but practical methods and guidelines that ensure the law functions correctly, just as a well-built house necessitates adherence to structural principles to ensure its stability and purpose .

Fuller’s requirement for the promulgation of laws implies that transparency and public accessibility of laws are critical for the law’s functionality and legitimacy. This requirement is the one duty he explicitly mandates within his "inner morality of law" because it ensures that the governed can know and understand the rules they are expected to follow, thereby maintaining the principle of reciprocity. Without promulgation, laws cannot guide behavior, leading to a failure of the legal system to act as a framework within which actions can be judged or evaluated consistently .

Fuller’s theory suggests that in response to contradictory enactments of law, a system should have a procedural mechanism derived "not from any positive law, but from the nature and reason of the thing," as emphasized also through historical examples like Hamilton's defense of judicial review. Essentially, Fuller argues for a prioritization of coherence in law through systematic and rational problem-solving methodologies inherent in his inner morality framework, to resolve contradictions in a manner that supports the overarching goals of legal stability and guidance .

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