Before the Debate
2 If there is ever a site where Fuller’s eclectic intellectual interests reveal themselves to be resistant to neat systematisation, it lies in the canon of his work that is, for the most part, not framed by the jurisprudential agenda announced by HLA Hart in 1958. Concerned as it is with that canon, this chapter is at risk of being somewhat unruly in its form, scope and aims. But we lose too much if, in the task of reclaiming Fuller’s jurisprudence, we do not begin with the projects that he largely initiated of his own accord, as opposed to those which he developed in response to, or that were at least significantly shaped by, agendas set by others. Foremost among these projects is Fuller’s unfinished eunomics theory of ‘good order and workable social arrangements’. The main argument I wish to elaborate in this chapter is that acquaintance with this project is vital if we are to gain a sense of how we should read, and should always have read, his exchanges with Hart and others on the internal morality of law. If we want to understand Fuller on his own terms, there is much to be learned by starting here, above all because the stated concern of the eunomics inquiry was to explore matters of form that Fuller thought were neglected in mainstream legal philosophy, and because the project was born at least in part out of a desire to challenge the traditional lines of contests between positivism and natural law. Before turning to eunomics, therefore, it is helpful to begin this chapter with Fuller’s early forays into those traditional debates, as this helps us to identify what he thought was so unhelpful, or obstructing of wider inquiry, about the manner in which those debates were typically conducted. A review of these early writings readily reveals the distinctiveness, from the outset, of Fuller’s attempts to be a participant in those debates. His criticisms, above all, are methodological: it is the prevailing ‘thought styles’ of a positivism and realism-dominated field, and the tendency of both (in his view) to close doors of inquiry rather than to open them, that he thinks must be corrected by at least a partial return to the style of natural law thinking. This, certainly, is a key theme of his 1940 book, The Law in Quest of Itself. But as Fuller’s thinking on these issues developed over the course of the 1940s, this sense of the decisiveness of methodology to the shape and content of the debates of jurisprudence evolves into a growing awareness of how the inflexible dichotomies to which those debates were married—law versus morality, is versus ought, means versus ends, and so forth—kept at bay any consideration of whether the study of law might actually be more fruitfully pursued by bringing these apparent opposites into some kind of interrelation. It becomes clear that he envisages his own jurisprudential contribution as one that must be directed to dissolving, or at the very least rethinking, those received divisions. This attitude forms the background for the introduction of eunomics. Although Fuller announced the project under that name for the first time in 1954, its key themes had been central to his thinking, under the working title of ‘The Principles of Social Order’, for much of the preceding decade. While my final view is that Fuller ultimately did not tell us enough about eunomics to allow us to conclude that we ought to read the whole of his jurisprudence through this prism, there is no doubt that eunomics, writ both large and small, is an abundantly instructive starting point for illuminating Fuller’s theoretical disposition generally, and the likely content of many of his claims in the Hart-Fuller exchanges specifically. To approach the eunomics project ‘writ large’ is to identify and to explore the ‘big picture’ ambitions and themes that animate Fuller’s declared intentions for the project and which we then also see finding expression in his exchanges with Hart: a concern for the possibilities and limits of different legal forms and processes, their ways of engaging the agency of their participants, and the shape of the relationships, demands of integrity, and animating moral values that constitute each of these forms and account for their distinctiveness. Eunomics ‘writ small’, by contrast, involves an exploration of Fuller’s studies of these forms of ordering in their own right: his essays on legislation, adjudication, mediation, contract, and so forth, each examined with a view to understanding how their distinctive designs and modes of participation do the form-constituting, limit-setting, agency-generating, value-nurturing work that they do. While dividing an analysis of eunomics along these lines is helpful, there is nonetheless a certain futility to attempting to disentangle the ‘large’ of eunomics from the ‘small’. In the same way that Fuller’s general methodology moves back and forth between theory and practice, the eunomics project moves back and forth between the models under review and the wider theoretical questions that he sought to explore. This is why, ultimately, it is most fruitful to explore Fuller’s ambitions for the eunomics project through the prism of his studies of specific models. Accordingly, the primary focus of my analysis of eunomics ‘writ small’ is on the essay that we might regard as the most exemplary ‘exercise in eunomics’ in Fuller’s canon: his ‘The Forms and Limits of Adjudication’. Despite its notoriety, and despite being possibly the most reworked and redrafted piece of his entire career (the carbon copies of letters that Fuller wrote to colleagues across the United States, and internationally, soliciting feedback on one or other draft of the essay run to an entire file in his private papers), ‘Forms and Limits’ remained unpublished at the time of his death.1 But the very title of ‘Forms and Limits’ should make clear that there is much to be learned for the story of reclaiming Fuller’s jurisprudence from this essay, precisely because Fuller’s exploration of the form of adjudication, and the central thesis he elaborates about that form, is guided closely by his wider theoretical intuitions about how the distinctiveness of a given form of social ordering is constituted by the particular modes of participation that it affords to its participants. By bringing these questions and themes into view, ‘Forms and Limits’ equally gives expression to Fuller’s effort to react and respond to the persistent tendency of legal theorists of his era to regard such questions as merely technical or practical matters, and thus not of concern to legal theory proper. I then turn at the close of the chapter to an analysis of the labels that typically attach to Fuller’s jurisprudential contribution, and how we might best situate that contribution among the wide variety of intellectual influences that shaped it. Was Fuller really a ‘natural lawyer’, or was he a legal theorist in the vein of early American pragmatism? Or was he in fact a sociologist of law or, indeed, a ‘legal process’ jurist alongside his Harvard Colleagues, Henry Hart and Albert Sacks? Or is the best approach to Fuller to see him as some kind of eclectic and perhaps even defiant mix of them all? These are important questions to answer within any project that seeks to engage with, let alone to reclaim, Fuller’s jurisprudence. By addressing them at the starting point of my own attempts in this vein, my aim is to provide a foundation for recognising, and thus navigating, the scene-setting role these influences and their associated labels play over the course of Fuller’s exchanges with Hart and others on the question of the ‘internal morality’ of law. The main thorn in Fuller’s side here was always, of course, the label of ‘natural law’. Yet when we examine Fuller’s responses to this label—one that he accepted qualifiedly but increasingly grudgingly as he came to see the obstacles it created to meaningful engagement with those who used it—we learn as much about how Fuller himself envisaged the character of his own jurisprudential contribution as we do the apparently default instinct of scholars of the field to divide their stage into two strict camps and to distribute the actors accordingly. The early writings in particular record Fuller’s awareness of what tends to be lost, for the more creative rather than analytical thinker, when they attempt to seek admission to a field that tends to take theories, rather than questions, as its starting point. This worry, and Fuller’s sense of its applicability to his way of approaching the theoretical study of law, is nicely captured in a working note for The Law in Quest of Itself, where he speaks of his ‘deep conviction that a too self-conscious concern with preserving some kind of ‘purity’ of method is demonstrably incompatible with creative work, and results in the creative work being concealed’.2 It is thus fitting to close these preliminary comments by noting that many contributors to the field of legal philosophy today, including those who self-identify as working within the strictest understanding of that term, seem much more inclined to build bridges rather than fortresses, to begin with questions rather than theories, when they offer their contribution.3 This is a matter I return to in my conclusions in chapter eight. But here, at the beginning, it is worth moving into Fuller’s early writings with an eye to just how much they reveal about his own desire to approach to the field of jurisprudence through the prism of questions rather than received theories, mining those theories only when to do so served his exploration of the questions. Fuller’s first book, The Law in Quest of Itself, is best described as a polemic against positivist legal philosophy as it stood in 1940, which means with the efforts of John Austin and Hans Kelsen primarily in view.4 Still, despite its polemical style, and the now mostly outdated targets of its critique, Law in Quest remains a valuable resource for contemporary jurisprudence precisely because of the nature of the objections that Fuller raises. Fuller’s ultimate objection to legal positivism in Law in Quest lies not with the project of positivism per se, in the sense of its quest for clarity, or strict standards for legal validity, or a desire not to confuse law and morality, and so forth. His objection, rather, is to the intellectual orientation reflected in the efforts of those who have developed the positivist project since Hobbes. As described in Law in Quest, Hobbes favoured the idea of an imposed positive law because, given man’s innately warring nature, he saw no alternative other than a lawgiving sovereign for the attainment of peace and order. For Hobbes, then, ‘there was no uncertainty or ambiguity about the object which he pursued in constructing his theory’, which, Fuller suggests, explains why it has been said without paradox that Hobbes ‘founded legal positivism on a natural law basis’.5 Fuller’s point, then, is that what is missing in contemporary variants of positivism is Hobbes’ purposive sense of why a lawgiver is needed at all.6 Unlike Hobbes, who kept the reasons for arriving at positive law in view, contemporary positivists move their focus directly to the source of law, without regard to the story, at least in Hobbes’ account, that precedes it. But Law in Quest also makes clear that Fuller sees the offences of contemporary positivists as going beyond their loss of the ‘why’ of law. They are equally at fault on methodological grounds in their tendency to advance a ‘disintegrative approach to language and experience’ that removes the ‘whole view’ from our gaze.7 This grasp of the methodological foundation of the impasse between the two dominant jurisprudential schools, as I foreshadowed in my preliminary remarks above, is something which features regularly among Fuller’s early commentaries. It is repeated in Fuller’s 1949 class materials, published in temporary form as The Problems of Jurisprudence, when he speaks of how ‘distortions proceeding from methodological motives’ lead us to see ‘neat diagrams instead of the complex and moving reality that actually exists’, and how, in turn, these motives can be traced to ‘the modern tendency to exclude rigidly anything that savours “natural law” from legal thinking’.8 The essay ‘Reason and Fiat in Case Law’, published in 1946, makes a similar point, but here with the strict conceptual dichotomies typical of jurisprudential argument in view. Whether pitting the phenomenon of ‘morality’ against ‘law’, or suggesting the necessary opposition of ‘reason’ and ‘fiat’, ‘means’ and ‘ends’, or ‘what is’ as opposed to ‘what ought to be’, Fuller’s response to these received prisms of theoretical discussion reveals an intellectual debt to Morris Cohen’s ‘principle of polarity’: the idea that ‘notions apparently contradictory form indispensable complements for one another’.9 An embrace of this principle, Fuller contends in ‘Reason and Fiat’, is precisely what legal philosophy needs, because it is scarcely to the credit of the field that it achieves harmony within its domain ‘if this is accomplished only by barring its frontiers to every vital detail and fruitful idea that might disturb the internal order’.10 Fuller’s consciousness in these early writings of the decisiveness of methodology to the character as well as content of the debates of jurisprudence is intriguing for positive as well as negative reasons. That is, if this understanding was so firmly held by Fuller in the 1940s, why did he not address it, or at least position it more squarely, in his exchanges with Hart about the internal morality of law? In that context, as I explain further in chapter five, the issue of methodology and its constitutive effect on the apparent impasse between Fuller and his critics does not take a central place until the ‘last word’ of those exchanges, his 1969 ‘Reply to Critics’.11 Similar questions can be raised about how the early writings address the normative capacity of legal philosophy to give ‘a profitable and satisfying direction to the application of human energies in the law’ in a manner that, again, is not repeated with the same energy or clarity in the Hart-Fuller exchanges.12 In his rejoinder to Ernest Nagel, for instance, which forms part of an ongoing exchange stemming from his 1956 essay, ‘Human Purpose and Natural Law’,13 Fuller not only expresses his concern for the prescriptive ambitions of legal philosophy, but, in a manner not repeated in his more well-known writings, takes this concern towards the question of how to specify the existence conditions for law. Framed by his contest with Nagel about the need for a strict division between ‘is’ and ‘ought’ in legal philosophy, determining the question of what law is, Fuller argues, necessarily implicates a diagnostic inquiry within which a normative question is rightly paramount; that is, the question of whether something which calls itself a legal order ‘is missing that target so woefully that it cannot in any meaningful sense be termed a system of law’, or that it otherwise has ‘so little “value” that it has ceased to “exist”’.14 The links between these comments and what Fuller comes to articulate in his response to Hart in the 1958 Harvard Law Review shortly afterwards are obvious. This will become clear through my analysis of that exchange in chapter three. But the point to note for now is that, much more than in the works we associate with the Hart-Fuller debate, Fuller’s early ‘pre-Hart’ writings reveal just how necessary he thought it was to clear the decks of the kinds of baggage typically associated with natural law thinking—yet while defending and restoring certain of its insights at the same time—if he was to secure a place for his own distinctive contribution on the agenda of contemporary legal philosophy. As his 1954 essay ‘American Legal Philosophy at Mid-Century’ makes clear, Fuller traced the rejection by scholars of his era of the natural law tradition to two main causes: the tradition’s failure to furnish an enduring and unchanging set of criteria capable of answering the question of what makes law ‘law’, and its claim that natural law sets itself above positive law and ‘counsels a disregard of any enactment that violates its precepts’.15 On these points, it is clear from the early writings that Fuller is on the side of the critics: a stance which, despite confusions that often still surround how his claims about the internal morality of law are interpreted, Fuller did not shift from at any point in his exchanges with Hart. But again, it is to the ‘pre-Hart’ writings that we should look to see this point most clearly. In his ‘Rejoinder to Professor Nagel’, for instance, Fuller states explicitly that he does not accept any doctrine of natural law which asserts that its demands can be the subject of an authoritative pronouncement, or that there is something called ‘the natural law’ capable of concrete application like a written code, or that there is a ‘“higher law” transcending the concerns of this life against which human enactments must be measured and declared invalid in case of conflict.’16 Still, in the same context, Fuller actively defends the view that it is not a ‘perversion’ to hold a position which rejects these commitments but which still lays claim to affinities with natural law thinking; a stance, he suggests, that ‘is at least as ancient as Aristotle, in whom I find no trace of the elements I reject’.17 It is within this last point that we can uncover the nub of Fuller’s ‘natural law’ position: his interest in ‘those principles of social order which will enable men to attain a satisfactory life in common’ which, on his reading, was equally an enduring, if secondary, concern of the older natural law theorists.18 ‘Human Purpose and Natural Law’ gives us a glimpse of where Fuller would head with this idea in the years to follow. There he speaks of the ‘internal’ sense through which we might understand the idea that there are natural laws of social order, and how a form of social order ‘makes its own technical demands if it is to be in fact what it purports to be’.19 Replying to Nagel on this point, the ‘Rejoinder to Professor Nagel’ sees Fuller specify this idea in terms both more concrete and clearly resonant with the claims that advanced in his 1958 reply to Hart, as well as The Morality of Law. No one, Fuller there argues, would regard a legal order to be in existence in a situation where there is ‘no discernible correspondence’ between the laws issued by a government and the acts of those who purport to enforce them, or where all laws are ‘retrospective in effect and no prospective laws are ever enacted’.20 These ‘pre-Hart’ forays into the traditional jurisprudential contest between positivism and natural law speak directly to the foundations of the reply to Hart’s law and morality agenda that was shortly to follow. By the same token, these early writings, especially Law in Quest, give us a sense of what was likely to go wrong when Fuller entered that territory. As already foreshadowed, a major thorn in Fuller’s side here was the tendency of his readers to align his claims more closely with those of traditional natural law thinking than was appropriate to the distinctiveness of those claims. But in the early writings we can also readily identify certain thorns that were largely of Fuller’s own making. As I explained in chapter one, Fuller understood himself to be very much disadvantaged in his forays into traditional jurisprudential debates by his lack of training in conventional philosophy. This disadvantage was already stingingly apparent in the aftermath of the publication of Law in Quest, which saw him greatly discouraged by Morris Cohen’s scathing review of the book that not only questioned Fuller’s grasp on the philosopher’s distinction between ‘is’ and ‘ought’, but also declared his ‘strange definition of positivism and natural law’ not only to do ‘violence to the historic meaning of these terms’, but to hopelessly confuse his claims as well.21 But these are disadvantages of training or skill-set, as opposed to those of style or intellectual character. The latter was arguably a bigger problem: Fuller held himself out to be alienated by his tendency to be aggressively polemical, even inflammatory, when he attempted to inhabit more traditionally philosophical territory. In some ways, this approach could be fruitful. The very title of The Law in Quest of Itself, for instance, is not only provocative, but neatly captures the nub of Fuller’s enduring complaint against positivism: how it seeks a concept of law that is insulated from all other moral, social and political phenomena.22 Yet in other ways the general tone of Law in Quest invited Fuller’s early detractors to weigh in against him with respect to style as much as content. Here the collegial but no-nonsense feedback of Thomas Reed Powell is instructive: The temper seems to me frequently ugly notwithstanding the Christ-like ethical standards. Woe unto you, Publicans and Sinners. Your mood doesn’t seem to be one in which fairness and objectivity are likely to find sustenance. To an extent, therefore, McDougal seems to me to give a fair impression if he would say: Qui etait dans son Coeur, sinon sur ses levres. When you indict the undefined, you offer wide opportunities to accept service and plead volo contendere.23 It might well be, then, that another reader was on to something when, reviewing Law in Quest, he suggested that it ‘comes as a disappointment chiefly because Professor Fuller’s undoubted talents deserve a wider range than is imposed by a battle of the schools’.24 But enter that battle Fuller did, and the purpose of the foregoing brief foray into some of his early attempts at the same has simply been to signal the style and content of what was to come when he did so in the context of responding to Hart. Fuller never explained in his writings from where, or from whom, he borrowed the term eunomics, which roughly translates from the Greek (eu = good; nomos = order) as good order, or good law.25 That he took the term from Aristotle, who wrote not only of good order but of good law in his Politics, seems the most likely explanation. The evidence to suggest this can be found in Fuller’s personal copy of Jerome Hall’s Readings in Jurisprudence, which includes a marginal annotation next to Aristotle’s reference to the ‘goodness of the laws’, a phrase, in the original Greek, that is expressed through the term eunomia.26 Whether Fuller himself read and understood the Greek text of the passage is unclear, but again, there is evidence that he might have done: in his personal copy of his 1949 class materials, The Problems of Jurisprudence, the extracts from Aristotle’s Nicomachean Ethics on ‘Justice’ are annotated, in hand, in Greek.27 For Fuller, what is missing here is any acknowledgment of the reciprocal basis of legal obligation, above all, of how the force which lies behind political authority is ‘essentially a moral power’ derived from ‘the general acceptance of the rules by which the law-making process is conducted’.32 But for the explicit gesture to matters moral, it might be said that Fuller, in his emphasis on ‘acceptance’ of ‘rules of lawmaking’ as foundational to an account of legal obligation, here sounds very much like Hart’s claim in his 1958 essay that the ‘key to the science of jurisprudence’ lies in what it means for a social group to accept the fundamental rules of lawmaking procedure; a thesis then elaborated at length in The Concept of Law.33 But Fuller’s main objection in ‘American Legal Philosophy’ is more fundamental. The very task of legal philosophy, he argues, ought to be something quite different than that suggested by the imperative theory of law. It should instead be about discerning ‘those minimum principles that must be accepted in order to make law possible and then to protect the integrity of those principles and to promote a general understanding of them.’34 This statement is striking for how it clearly signals the type of intellectual programme that Fuller thought necessary for jurisprudence, and which he ultimately attempted to pursue in his debates with Hart. Other aspects of that programme are equally revealed in the essay, such as in how Fuller suggests the need for an approach to jurisprudence that is grounded in real world facts as much as it is in aspirations: law ‘is not a datum’, Fuller insists, but ‘an achievement that needs ever to be renewed, and that cannot be renewed unless we understand the springs from which its strength derives’.35 This is the background against which Fuller introduces his intended theory of eunomics, and by keeping this background in view we are able to see the extent to which the eunomics programme stood as a reaction to Fuller’s frustration towards the failure of contemporary legal philosophers to concern themselves in any meaningful way with the ‘general principles that will guide choice among the available forms of order’.36 This ostensibly lawyerly inquiry—which kinds of forms of ordering are suited to which kinds of problems?—is given its jurisprudential significance through how Fuller traces this apparent neglect to ‘an exaggerated reaction against the theory of natural law’ in an intellectual era which has come to privilege determinate criteria and clarity of analysis.37 Eunomics, then, is an attempt to reclaim what has there been lost but, crucially, in a highly qualified manner. In its emphasis on ‘the means aspect of the means-ends relation’,38 eunomics implies no commitment to ‘ultimate ends’.39 Fuller is therefore clear that his intended project departs substantially from claims more typically associated with the natural law tradition, such as the notion that natural law ‘sets itself above positive law and counsels a disregard of any enactment that violates its precepts’.40 Eunomics, instead, is a natural law project only in so far as it attempts to reclaim the natural law intuition that there are ‘compulsions necessarily contained in certain ways of organizing men’s relations with one another’, such that, by illuminating these compulsions, we might uncover a kind of ‘natural law’ of social ordering.41 We learn little else from ‘American Legal Philosophy’ about the ambitions of eunomics than what is revealed in these comments. Beyond this, the only other way that Fuller elaborates the possible parameters of the project is through the example of a class exercise (which he suggests reflects a ‘problem of eunomics’) which poses the question of how the forms of adjudication and contract, in whole or hybrid form, might be brought to the resolution of a boundary dispute between two hypothetical countries. The question of what such an exercise has got to do with legal philosophy is precisely Fuller’s point.42 Why should legal philosophy not be concerned with ‘two fundamental and pervasive principles of social order’, adjudication and contract, the ‘principles that underlie’ each, and how by studying them ‘in this uneasy and somewhat hazardous mixture’ we might learn something ‘about their social functions generally’?43
Before the Debate
I The Early Fuller: Positivism and Natural Law at Mid-century
II Eunomics: A ‘Science or Theory of Good Order and Workable Social Arrangements’