Three Conversations

Three Conversations

The ‘forms liberate’ image that has provided the frame for the inquiry of this book is perhaps the most intriguing of the many working notes that comprise the archive of Fuller’s private papers. But there is another, also to be found in the file relating to his ‘Reply to Critics’, that is quite peculiar, in so far as it says little else beyond its title, ‘Words We Use’.¹

The words we use did indeed matter greatly to how Fuller’s claims were both expressed and received. Just how acutely he appreciated this is made clear throughout his working papers, but perhaps nowhere more so than in the correspondence with Hart on the issue of trusteeship that I discussed in chapter four, where Fuller indicates a willingness to ‘make peace’ in his debate with Hart by ‘substituting some term like “ethos” or “trusteeship” for “morality”’.² That term, ‘morality’, continued to be the main cause of Fuller’s troubles in his exchanges with Hart about the unconventional claims of his jurisprudence. Still, despite the concessionary gestures we see in his letters to Hart, Fuller ultimately chose not to concede the term in any of his published writings. The ‘Reply to Critics’, for instance, sees no mention of the terms ‘trusteeship’ or ‘ethos’, although Fuller does introduce the idea of ‘role morality’. Here again, however, the point to note is that the term ‘morality’ stays in, and the reason why is surely not hard to find. Had Fuller have conceded the term ‘morality’, he would almost certainly have found himself out of a conversation that was, for better or for worse, about the connections between law and morality.

Fuller thus clearly had occasion to think deeply and often about the words we use and how decisive they are not just to the possibility of meaningful conversation, but to any conversation at all. His working papers for the ‘Reply to Critics’ make it abundantly clear that the only way Fuller thought he would be able to make it through the conversation about the connections between law and morality that he found himself in was simply to try to change the conversation itself. Whether or not he succeeded in this effort is not the main point. After all, it takes two. The more salient point for present purposes is that Fuller’s participation in that debate stands as a record of one scholar’s attempt to expand the boundaries of extant conversations so as to accommodate questions and perspectives that he thought were being unduly neglected.

One of the main purposes of this book has been to clarify the confusions that endure with respect to what Fuller meant when he spoke of the internal ‘morality’ of law. This question would not have cast the shadow that it has over the reception of Fuller’s jurisprudence if it were not a valid one. Still, as I mentioned in chapter one, what has received too little acknowledgment in the history of the Hart-Fuller debate is how Fuller himself saw this confusion as actually running two ways. As he put it to Hart in 1958, positivists might be confident in their claim that there is no necessary connection between law and morality, but what exactly do they seek to exclude when they exclude ‘morality’ from the domain of law?

Fuller saw at least three kinds of connections between law and morality that he thought were salient to debates in jurisprudence. The first was a connection that goes to the question of why we accept law, why it has its normative force. As I have made clear in the preceding chapters, Fuller came to trace this connection to the special features that characterise the position of the legal subject as an agent who understands the crucial importance of the support she conveys towards the legal order to the very possibility of its existence. The second connection that Fuller identified was that which goes to the demands that burden the lawgiving task: the moral dimensions of the ethos of lawgiving, which are in turn referable to the lawgiver’s responsibilities to the responsible agents who comprise the subjects of law. Third, Fuller also identified a connection between law and morality that goes to the moral quality of legal ends, and thus which concerns the moral substance of law.

Fuller’s contribution to debates about the connections between law and morality, and indeed the interconnections between these connections, thus was and remains a rich one. But throughout this book I have also suggested that to reclaim Fuller’s jurisprudence is, to a certain extent, to accept the need to distance ourselves from the prism of those debates; or, at least, there is in my view a need not to grant that prism the hegemony that it has occupied so far in interpretations and appraisals of Fuller’s claims. The battle of the schools between positivism and natural law, and specifically the debate about the connections between law and morality, was the context that Fuller entered when he commenced his foray into questions of jurisprudence. It was still more squarely the conversation that he entered when he chose to respond to Hart’s defence of legal positivism on these grounds. But, as I suggested in chapter one, and which I trust has become clear over the course of the foregoing chapters, that debate was hardly the most congenial forum within which Fuller could elaborate his intuitions about what was so independently interesting and important about the form of law. Certainly, as it has been one of the purposes of this book to show, Fuller’s intuitions about the distinctive form of law were and are capable of being translated into debates about the connections between law and morality. This is clear in his claims about why the legal form is valuable to and indeed presupposes the legal subject as an agent, how it instantiates an ethos of responsibility to persons on the part of the lawgiver, and how, in practice, there appears to be an affinity between the health of that form and the justice of legal ends. Still, the point I have sought to make is that the law and morality conversation has often obscured these jurisprudential insights as much as it has illuminated them.

Above all, however, to reconvene conversations about the connections between law and morality in Fuller’s name requires a clarified sense of the ways in which he is to be regarded as a natural law participant in those conversations. It should be clear by now that Fuller was a natural lawyer in the sense that he thought a conversation could be had about the connections between law and morality that is internal to conversations about the concept of law. He was equally a natural lawyer in the sense that he had faith in the role of reason in human affairs. And he was a natural lawyer in the sense that he thought that our obligation to obey law could not be meaningfully explicated in the absence of a sense of law’s purpose. But the twist, or distinctiveness, of Fuller’s contribution lies in what his jurisprudence suggests to us about how law’s purpose is, to a significant extent, revealed in its form. Any conversation about law and morality convened in Fuller’s name, therefore, must keep this insight in view.

My analysis in chapter five will have made particularly clear just how much the task of clarifying, reclaiming and resituating Fuller’s understanding of the moral dimensions of law requires that his claims be extracted from a conversation that, at Hart’s lead, pitted claims about law’s ‘morality’ against ones about its ‘efficacy’. But for Fuller, as I have explained at length, the values of morality and efficacy were not incompatible but rather closely intertwined; together part and parcel of the demands as well as the promise, to both lawgiver and legal subject, of law’s distinctive form. This was, and remained, Fuller’s intuition from the early articulations of his eunomics project through to the close of his exchanges with Hart.

To begin answering this question it is helpful to recall what Fuller’s complaint against an instrumentalist understanding of law actually was. Above all, this complaint was directed to the shape of instrumentalist analysis: how its inherently one-way, top-down character blinds us to the interactions, interrelationships and sites of mutual adjustment that constitute the workings of a legal system in practice. In his specific responses to Hart, Fuller identified this shape as being part and parcel of the utilitarian genealogy of Hart’s positivist project, where law was regarded as an instrument through which the political objectives of the utilitarian political and moral project could be met.⁹ But, ultimately, the utilitarian frame that Fuller identified as underlying Hart’s position is not crucial to the thrust of his critique. What’s wrong with an instrumental conception of law, according to Fuller, is that because it takes the source of legal power as its starting point, and then understands the business of that source to be the pursuit of specified ends through the instrument of law, the conditions antecedent and] subsequent to the very possibility of law being used in this way simply fall from view.

But there are other conversations about law’s instrumentality within which Fuller might also take a place. Fuller, for instance, had things to say about our instrumental reasons, whether objective or motivating, for obeying law; or, in Fuller’s terminology, for why we might give our ‘fidelity’ to law.¹³ We might say that in this kind of conversation Fuller would propose that the legal subject has ‘instrumental’ reasons for giving her fidelity to law that are derived from how the form of law respects her as a responsible agent. This, indeed, is a point well captured by Waldron when he reads Fuller as suggesting that it is what law is, quite apart from what it does