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Internal Morality of the Law

Lon L. Fuller (1902-1978)

(For more on Lon L. Fuller, seehttp://www.capital.demon.co.uk/LA/legal/fuller.htm )

According to Fuller (cf. The Morality of Law (1964)) a legal systemhas the following eight desiderata:

(1) There must be laws

(i.e. someone or some body handing out rulings is not enough; theremust be a law in existence)

(2) These laws must be publicized

(i.e. laws cannot be kept secret, or be unknown)

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(3) These laws must prospective, not retroactive

(i.e. laws should not to extend to cases before the existence of thelaw)

(4) These laws must be understandable

(i.e. not to be (a) unintelligible, or even (b) extremely difficult tounderstand)

(5) These laws must not contradict each other

(i.e. if there were laws e.g. requiring one to vote and prohibiting one tovote, then it would be impossible not to break the law -- there wouldbe a "legal dilemma"; the law could not guide action)

(6) These laws must not require the impossible

(e.g. by impossible here is meant physically or psychologicallyimpossible, e.g. no law forbidding sneezing in public; "ought impliescan")

(7) These laws must not change too rapidly

(i.e. for example there should not be, in the same day, a new law, thenthe scrapping of that law and another new law, and then the scrappingof that law and another new law)

(8) These laws must be the laws that are enforced

(i.e. the actual administration of the law must be consistent with thelaws themselves; it must not be the case that these laws are notenforced and that no laws, or other laws, are enforced)

"A total failure in any one of these eight directions does not simplyresult in a bad system of law; it results in something that is not

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properly called a legal system at all" (p. 21)

"Government says to the citizen in effect, "These are the rules weexpect you to follow. If you follow them, you have our assurance thatthey are the rules that will be applied to your conduct."" (p. 21-2)

Note that Fuller's "secular natural law" theory is supposed to be "aprocedural as distinguished from a substantive natural law" (p. 24).Fuller's eight directives say nothing about the content of the laws of alegal system, other than that the laws must not require the impossible.It may be consistent with his theory that a legal system have lawsprotecting slavery, human sacrifice, the denial of property rights tominorities, etc., so long as these laws exist, are publicized, areunderstandable, are not impossible to obey, are stable, and are thelaws that actually are enforced.

Q. Are all of these directives necessary?

Q. Are they all equally important?

Q. Are they, taken together, sufficient (or are there more directivesneeded)?

Q. Could a system of law observe all of these directives and yetconsist entirely of impermissible laws?

Q. Can there be a legal system in Fuller's sense that is neverthelessoppressive?