In Defence of The Internal Morality of Law: Fuller and His Critics

At this present political moment, vociferous debates rage about the experience of being governed in democratic countries charged with creating disorder, oppression and injustice. Amongst the many competing and interrelated ideals of political morality, the rule of law has been the object of recent discursive interest for the implications it has on liberty, the relationship between the governing and the governed, the duties of citizenship and their limits, and how acts of legislation may be used as instruments of cruelty. 

American legal philosopher Lon Fuller was convinced that the law is inviolably occupied with morality. In his compelling and even delightful work, The Morality of Law, Fuller theorises that there are 8 criteria that a legal system must fulfil, at least to some extent, in order to be considered a legal system at all (1964). These demands constitute the “internal morality of law,” and with inspired apercus and rigorous analysis galore, Fuller posits that it is this morality that makesthe law, a purposive enterprise, possible. His (many) critics are unimpressed (here, for example, I look at rejoinders by Hart, Dworkin, and Cohen). They accuse him of conflating practical or ‘procedural oughts’ with ‘moral oughts.’ In this paper, I intend to closely read Fuller’s writings on the internal morality in light of these accusations to ultimately address, among others, two principal questions: first, does Fuller reduce the concept of morality to mere mechanics for the state vehicle, perfectly capable of being trotted around by the despotic?; and second, what are the implications of the existence of an internal morality of law?  

This paper will briefly look at Fuller’s 8 criteria for a legal system as articulated in The Morality of Law and related publications by Fuller, and then delve into the criticism of this concept of internal morality that is germane to the first question of this essay, before proposing a defence of Fuller’s arguments. To construct such a defence, I will analyse how the value of knowledge and workings of liberty strengthen the case for Fullerian inner morality. I conclude that Fuller’s approach to law treats it not as a static, conceptual, abstraction, but as a political, breathing, institution, which must be understood through what it is for and what its politics are likely to be. 

Fuller’s Internal Morality of Law – Principles and Persuasions

Fuller maintains that “the internal morality of law is not something added to, or imposed on, the power of law, but is an essential condition of that power itself” (p. 155). His strand of jurisprudence mediates traditional natural law’s substantive facets of legality with positivism’s procedural ones to prepare a uniquely negotiated morality birthed from the moral interaction of principles. The eight principles propounded as necessary are (1) generality, not in the sense that the same rules must apply to everyone, but in the sense that there must be established rules, (2) promulgated laws – that is, laws must be publicly available (3) non-retroactivity (4) laws should be comprehensible (5) laws cannot contradict themselves (6) laws should not ask for the impossible (7) stability and (8) official action of the administration should be in accordance with the declared rules of the legal system.  

We are told that “A total failure in any one of these eight directions does not result in a bad system of law; it results in something that is not properly called a legal system at all” (p 39). Despite the specious clarity of these conditions, their identification, codification, demands and enforceability are (with the notable exception of promulgation, which Fuller classifies as simple enough to pin down and qualify) creative, positive, and reliant on the “energy, insight, intelligence, and conscientiousness” of legislative agencies (p 145). The internal morality involved in the structure of the law is thus “largely a morality of aspiration” meaning that after surpassing an indispensable set of basic specifications, it wades into the broad, the flexible, and the abstract (p 43). Therefore, the internal morality is foundational to law across its spectrum of boilerplate duties and intangible ideals. At every level, its 8 desiderata exert the force of an inner morality, without which there can be no law. When the law is evaluated and a principle is used to interpret and bring to life an act of law, this principle is only one of a host of possible ideals, the calculative deliberations of which is a moral conversation. 

Misreading Fuller – The Critic’s Position

Several critics such as Hart, Dworkin and Cohen famously rebuff the very heart of Fuller’s claims that there exists such a necessary internal morality, and they believe his use of “morality” is but a misnomer. Famously, for Hart, Fuller’s desiderata are procedural, vehicular and nonmoral; laying out the craft and spare parts interpellated into law cannot speak for the ends to which the mechanical practices are deployed. An example from chapter one of Fuller’s The Morality of Law can be repurposed here. To participate in a language, there are basic requirements of grammar that the language demands – just as Fuller has the morality of duty or the necessary stipulations within the internal morality of law – but, in addition, linguistic systems have other qualifications or metrics of literary evaluation such as the richness of vocabulary, skilful inclusion of poetic devices, and development of themes – just as Fuller describes a morality of aspiration and the internal morality of law as idealised and abstracted. Yet, all this is talk of how language is operationalised and what literary critics look for within it, remains independent of what the language is saying – we know nothing of its “goodness” or its “rightness” simply from how many metaphors fill its pages, how well a theme is developed is not bound by how moral the theme itself is. In other words, Fuller’s use of the lexicon of morality, to Hart, “blur[s] the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned” (p 1286).

Fuller’s critics believe that Fuller reduces the concept of morality to mere mechanics for the state vehicle, which does not really speak to morality at all, only to procedural efficiency and practicality. Fuller maintained that abhorrent, violently unjust law such as Nazi law is not law at all, but for Professor Cohen, “this is like saying that a hairpin used to pick a lock is not a hairpin but a key” (1965). Other, perhaps kinder critics dilute the scope of Fuller’s inner morality by alleging that he is not talking about the morality of law as much as he is about the morality of lawmaking. Both these readings, in unique ways, hedge the conviction of inner morality and misread its mechanization. Forthcoming sections take up why I defend Fuller’s internal morality because of its variable and purposive nature, the reciprocal moral relationship and knowledge-transmission, and finally, its implications for liberty and democracy. 

Law as a Purposive Enterprise

So, what, then, is Fuller arguing? First, while the law has multidirectional aims and ends, the law is purposive and functional inasmuch as it seeks to bind rational citizens to its dictums. This purpose is not audacious or unreasonable, but simply to subject “human conduct to the governance of rules” (p 106). First, even such a basal threshold for intent creates restrictions on what legislative action is compatible with the overarching purpose of legal activity. Second, this treatment of law as a purposive enterprise connotes its varying levels of success in the admitted aim. 

The analogy of a theatre production might be helpful here. There is a script (a constitution, laws), direction/production/writers/set design teams (courts, lawyers and the state capacity), a team of actors (citizens) and finally, a desire to make meaningful art, entertain and so on (purposiveness of law and the duty of aspiration). The existence of the codified script furnishes the production with two things. First, for the directors and writers (like legislative organs) there is an effect of finite limits evoked through being bound by the promulgated, clear, noncontradictory script which can neither be upended on the frenzied whims of the producers if these whims are not basically coherent and comprehensible for the others involved in the production nor if they do not comply with the defined purpose of conveying an artistic vision or broad aspiration. Second, for the actors, the script provides a predictable framework that makes it possible to meaningfully interact in a contained environment, but also fulfil higher-order and unquantifiable exercises of talent, artistry, and actualization. But most productions have scripts and directors, and yet, they all do not result in the same standard of theatre. Particular configurations of the use of improvisation of actors and directors, the production value of sets, and the relationship of trust or scepticism between actors and the director can all manifest in the final result, just as legal systems can achieve varying levels of success. Understanding when a legal system is successful comes from measuring it against its professed principles and desiderata; the functionality of law shapes its nature. One can chart out the meaning of law only through what it does, and how it does this. 

The Significance of Reciprocity in a Moral Relationship

This purposive endeavour of law attaches a “special morality of role that attaching to the office of the law-giver and law-applier” because of how administrations decide to actualize its aims. As stated earlier, inner morality’s seven positive and intangible demands are endlessly weighing the impact of trade-offsthat legislators, courts and the executive must make; here we see a substantive moral question inherent to the workings and principles of law. Stitching together policy from the principles is not a linear process – retrospective laws rectifying past harm can ameliorate the legal status of citizens, and deliberating whether it is more important to be clear as opposed to comprehensive are moral discussions as much as they are political or economic for they require reflections on the material conditions of the population and how the moral infrastructure of the state intervenes in the everyday. There cannot exist any executive ambivalence or formulaic equation in realizing concepts like marriage, the market, and justice. 

Promulgation is the only demand which does indeed lend itself to codification. But this does not undermine its “moral” character or limit it to just practical value. The publicity of laws is what allows for ordered social existence. For Fuller then, there is morality in order. There is morality in knowledge. There is morality in systems that are reliable and wherein one is aware of the consequences of their actions. This principle is far more commonly accepted than it appears: the existence of the Geneva Convention, for example, imposes moral standards of conduct in the midst of a decidedly immoral fact of war. The recent Citizenship Amendment Act is widely considered immoral and discriminatory. Nonetheless, it is available in the public domain, and comprehensible (either directly, or through its representations in the media), which has certainly improved the condition of those worst affected by it – people who might otherwise have one day found themselves in a detention camp because of lost papers without the slightest intimation of what has gone wrong. The existence of information asymmetry cripples citizens’ ability to modify behaviour, dissent, and make informed choices. The protests against this law (and their subsequent clampdown) speak to different democratic ideals – secularism, equality and the right to dissent. The internal morality of law that required the law’s publication at least tempered the force of cruelty wielded by the state. Hence, by adhering to the eight criteria of internal morality, actions can be considered moral even if they are being deployed to achieve immoral goals. 

The sociological and political significance of the demands of the internal morality of law has been made clear. But all of their “moral” value is linked with the starting assumption that citizens have a claim to fairness, and that legality is very sensitive to how it is treating those who will be bound by it.In contrast with a managerial or hierarchical relationship, this is one of dialectical reciprocity. Lawmakers are expected to, as it were, hold up their end of the bargain, which is that of making helpful, intelligent laws that ease cleavages and tension, and catalyse growth and prosperity. It demands that if citizens are expected to follow rules, the rules must be in the best interest of an ethical, moral community. Treating individuals with respect is one instance of the requirement for moral laws. 

Lawmakers are beholden to their statutes as much as ordinary citizens are, even when it is inconvenient. Fuller talks about the sacrificeof the governing in this regard – the law cares about its citizens, and morality is more important than efficiency. Therefore, the law demonstrates its inner morality through its circuitous choices; it privileges the ethics of reciprocity and equality above the expedient and peremptory. Fuller emphasizes the point that “if the Rule Of Law does not mean this [congruence in the application of laws for the governed and governing], it means nothing” (p 210). The principles of legality are termed “moral” because they mandate that lawmakers possess some degree of conscientiousness in terms of the implications of their laws – nobody is above the law, instead of being susceptible to arbitrary, self-serving monopolizations of power and authority, it is for the upliftment and organization of the entire community. This is essential to create trust, which results in lawfulness. When lawmakers behave capriciously or carelessly, they are breaching the contract of the moral relationship and the duties that confers. Order would be jeopardised by resentful, betrayed citizens. Apart from micro-sociological difficulties and discontent with abrupt, impossible law, the very texture of political relations is also thrown into question when citizens are not treated with due dignity.  

Underlying each of these arguments that (inner) morality lives in respect, consideration and equality for individuals is the assumption that the individual is a “responsible agent capable of understanding and following rules and answerable for his defaults” (p 162). Legal pronouncements are meted out with this assumption, and what follows is that transgression from the rule of law’s internal morality are “affront[s] to a man’s dignity as a responsible agent” (p 162).  

To conclude this section, since the law is a continuous, democratic process which derives its legitimacy from the moral reciprocity (and not through crude force) between the governing and the governed, its legality and legitimacy, is moral. The relationship of the government to its subjects involves an essential quid pro quo that administers restraints to maximise human potential and maintain order in exchange for respecting the rule of law and abiding by its demands. The eight desiderata provide the guidelines to broach this legality, and, by extension, this according morality. 

Nefariousness, Nazis, and Internal Morality

Fuller argues that the requirements of coherence and codification have a greater affinity for good than evil. This is an important link in his argument, and something implicitly argued all through The Morality of Law. To Fuller, it is “naïve” to contend that evil is just compatible as goodness is with coherence (p. 636). More important than international backlash and minatory sanctions that come with public state-sponsored brutality, it is tedious and challenging to maintain a method of precision and thoroughness when detailing blueprints of viciousness. When an apparatus of power is required to define, qualify and promulgate its goals and methods, there is a greater likelihood that such requirements will inspire fairness, disclosure and acceptable practices. As a result, he accuses Hart and other such critics of the morality of law to be abdicating the responsibility of at least attempting to mitigate the propensity that a legal system falls into despotism. “Even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law” (A Reply to Professors Cohen and Dworkin, p. 636) This hesitancy can only be justified by some incompatibility, some aversion, some resistance of the law to evil. By extension then, there must be an internal morality of law. 

Having sufficiently dealt with the theoretical gymnastics of Fuller and his critics, the debate of whether Nazi law is or is not law captures the nuance and, I believe, the superiority of Fullerian thought. Nazi law is notorious for its cruelty. It involved complex networks of violence and the persecution of minorities operationalised through “law.” Arguing that its law is still legal is an unconscionably reductive perspective of the rule of law, which becomes superficial, and divorced from the substance of the law. Jeremy Waldron notes that the “problem of the scrupulously legalistic Nazi is at best a question about the efficacy of cosmetics” (1994). If the rule of law is an additive or “cosmetic” then Nazi law – drenched in secrecy and cabals, horrific unpredictability, incongruence between declared rule and official action – might be considered law. But if the demands of internal morality are professed but never practised, or professed in misleading and deliberately incomprehensible languages, then that is tyranny. It is not law. 

If, as the Nazi regime did, a government wanted to instil intractable fear and unchecked power, it is unreasonable for hypothetical experiments to suggest that such a government would be meticulous about their adherence to Fuller’s requirements of inner morality. Perhaps, then, Fuller’s morality forces us to confront the alterity of legislative morality from popular ones, because it is one thing to be a bigoted citizen and quite another to be a bigoted legislator. Both contain similarly abhorrent beliefs, but their manifestation differs. Immoral ends exercised through the apparatus of lawfulness necessarily promise, at the very least, publicity and information channels. They take seriously the moral community and the maintenance of order. It seems puzzling, and even ridiculous, that a tyrant would turn to fulfilling Fuller’s 8 desiderata to perform unspeakable acts such as genocide, when extrajudiciality promises expedience. All that is implicit in Fuller’s inner morality is reciprocity and accountability – both obstacles rather than ambivalences to the cruel leader.

Limits, Liberty and Concluding Remarks

Fuller is not saying that it is impossiblefor laws to be immoral. He agrees heartily that individuals may disagree with the morality of the law. He is more interested in suggesting that systematic immorality and a pattern of despotismdoes not lend itself to the rule of law. 

The internal morality of a legal system comprises individual laws, but one cannot point at a decidedly immoral law out of a hundred thousand and say – this immoral law defeats the inner morality of the system. If an entire demand of inner morality is removed, that has the power to take away legal status of a system. A one-off law reasonably cannot reflect on an entire legal system. The rule of law is also just one component of political morality, and not the sole arbiter of a state’s moral position. It must be viewed in the context of its history and its philosophy. The 2020 Farmer’s Bill, for example, in and of itself, complies with the internal morality of law. But because of a lack of trust, failure to fulfil past promises, farmers believe it to be exploitative. 

The implications of an internal morality of law are vast and urgent in democracies where meaningful liberty is under threat. Mill’s negative liberty came from individual agency and not imposing constraints on a person, but Fuller’s liberty was inherently social, it did not strive for Mill’s “li[f]e as a hermit,” but instead he contended that “[f]or most of us the life of freedom must be as members of society” (Fuller, Case Against Freedom, p 320). Fuller did not believe in an instinctive desire to just survive, for him, retaining networks of communication amounted to a way of being alive unto itself. The work of freedom was to enable these ideals of relationality and collective existence. The institution of the law and Fuller’s delineation of its inner morality allows a society to structure restraints that enable such intercommunication and reciprocal action. There can be nothing more moral than this. 

Approaching contemporary politics with the scaffolding of Fuller’s internal morality teaches a population how to diagnose when the moral relationship of reciprocity splinters due to an abandonment of due process, respect and logical consistency. The eight principles, when flouted by governments, are prescient indicators telling us when it is time to be concerned, and what it means when the administration trounces democratic checks and balances. The academic disinterest in Fullerian jurisprudence dismisses the value of holding legal institutions to moralistic, qualitative standards. There is malfeasance implicit in information asymmetries and in breaching of the contractual relationship of respect and trust; Fuller’s inner morality provides a systematic roadmap for establishing reliable neuro-institutional pathways predisposed to justice, to transparency, and to morality. 

Works Cited

Colleen Murphy: Murphy, Colleen. “Lon Fuller and the Moral Value of the Rule of Law.” Law and Philosophy, vol. 24, no. 3, 2005, pp. 239–262., doi:10.1007/s10982-004-7990-3.

David Luban, Natural Law as Professional Ethics: A Reading of Fuller, 18 SOC. PHIL. & POL’Y 176 (2000).

FULLER, L. (1969). The Morality of Law: Revised Edition. NEW HAVEN; LONDON: Yale University Press. Retrieved October 15, 2020, from http://www.jstor.org/stable/j.ctt1cc2mds

Fuller, Lon, ‘A Reply to Professors Cohen and Dworkin’, Villanova Law Review 10(4) (1965): 660.

Hart, H.L.A., ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71: 593–629.

Hart, H.L.A., The Concept of Law 2nd edn. (Oxford: Clarendon Press, 1994).

Mill, John Stuart. On Liberty. London: John W. Parker and Son, West Strand, 1859.

Waldron, Jeremy, The Concept and the Rule of Law (September 24, 2008). Georgia Law Review, Forthcoming, NYU School of Law, Public Law Research Paper No. 08-50, Available at SSRN: https://ssrn.com/abstract=1273005