Resituating Fuller II: Dworkin
7 Ronald Dworkin’s writings have long given the impression that there is little in common between the method and claims of Fuller’s jurisprudential project and his own. Taking Rights Seriously, for instance, dismisses Fuller within its first few pages, joining him to other ‘processual’ theorists, such as Hart and Sacks, who all ‘insisted on the importance of regarding law as an instrument for moving society toward certain large goals’.1 Law’s Empire makes no mention of Fuller at all.2 The implication we might take from this is that Dworkin has long suggested that Fuller offers little to enlighten the pressing questions of jurisprudence generally, including inquiries, like Dworkin’s own, that challenge the positivist account of law on the grounds of its incompleteness. If this is an accurate assessment of Dworkin’s sense of Fuller’s contribution to jurisprudence generally, and of the connections between that contribution and Dworkin’s own project in particular, it is one that operates to obscure several stark commonalities that cut across the two theorists’ projects. For present purposes, however, it is not my aim to highlight these commonalities as mere points of interest, or, indeed, with a view to illuminating how many aspects of Fuller’s jurisprudence offer a preliminary and sometimes quite substantial sketch of some of Dworkin’s most important challenges to positivism. My aim, rather, is one that seeks to keep a wider and more contemporary conversation in view: one concerned to uncover the ways in which Fuller’s jurisprudence speaks to a conception of legality that can be distinguished from Dworkin’s own in important ways. The context of this conversation must be briefly sketched. It arises from how Dworkin now sees the idea of ‘legality’ as the ‘foundation’ for inquiry in legal philosophy and the reference point against which the field itself might be remapped.3 As Dworkin now sees it, contemporary legal philosophy might best be understood as populated not only by competing conceptions of law (legal pragmatism, legal positivism and his own ‘law as integrity’)4 but also by the competing conceptions of the value of legality that lie at the heart of those conceptions and which account for the differences between them. Fuller’s place on Dworkin’s landscape is notable for its absence. When we review the history of Dworkin’s engagement with Fuller, as I do below, this should not come as a surprise. But this history of disengagement seems to have reached a kind of natural end in Dworkin’s recent turn to the idea of legality, an idea that can in many ways be seen as Fuller’s starting point while, for Dworkin, marks a destination only recently arrived at. The question for now, then, is whether Fuller’s contribution to understanding the meaning and value of legality can be collapsed into one or other of the conceptions that Dworkin identifies, thus justifying its omission from Dworkin’s map, or whether it should be recognised as standing for something distinctive in its own right. In what follows I seek to answer this question by undertaking a trajectory of inquiry that begins with an account of Dworkin’s earliest and most sustained engagement with Fuller: essays published in 1965 in response to The Morality of Law. I then move through both Fuller and Dworkin’s thinking on matters of interpretation and the proper methodology for jurisprudence before engaging squarely with the question of whether Fuller’s conception of legality ought to be given its own place on the landscape of contemporary legal philosophy as Dworkin has recently mapped it. The elements of this trajectory each serve a dual purpose. With respect to Dworkin’s earliest and most sustained engagement with Fuller, the 1965 essays, my aim is both to chart the basic concerns and character of Dworkin’s engagement, as well as to analyse how that engagement seems to overlook those elements (and, indeed, occasionally explicit arguments) of Fuller’s position that invite Dworkin and fellow critics to recognise the formal basis of Fuller’s claims about law’s inner morality. With respect to my analysis of, and comparison between, Dworkin and Fuller’s thinking on interpretation and methodology, here again the aim is not comparison for comparison’s sake, but rather an attempt to reveal how and why Fuller’s own critique of positivism on these points speaks to a distinctive conception of legality that deserves an equally distinctive place within Dworkin’s map of the current state of legal philosophy. It follows from this that my aim in undertaking the analysis to follow is not to appraise Dworkin’s project generally, or, indeed, to evaluate the success of its attack on the viability and coherence of positivist jurisprudence. This stands on its own terms. Still, because Dworkin has in many ways been as much a catalyst as Hart and Raz for the marginal place that Fuller’s jurisprudence currently occupies within contemporary legal philosophy, the project of reclaiming Fuller necessarily involves a detailed exploration of the claims, assumptions and manoeuvres of argumentation that lie behind that marginalisation, as it has been secured, or at least assisted, by Dworkin’s hand. Dworkin published two essays in response to The Morality of Law, one a substantial article in the University of Pennsylvania Law Review,5 and the other a contribution to a panel discussion with Marshall Cohen and Fuller himself, reproduced in the Villanova Law Review.6 I referred to the latter essay briefly in chapter four, as it contains some of Fuller’s most explicit statements about the ‘built-in’ respect for human dignity contained in his idea of the internal morality of law. For present purposes, however, the point of reviewing these essays is to ascertain how Dworkin understood and represented Fuller’s position in this moment when he engaged with that position directly, because, I will suggest, this goes some way towards explaining why Dworkin has subsequently showed so little interest in Fuller’s jurisprudence, or has regarded it as having no apparent relevance to his own enterprise. Anyone who has followed the course of jurisprudential debates in the last half century will surely be surprised, on review of the 1965 essays, to witness how closely the substance of Dworkin’s criticisms of The Morality of Law aligns with Hart’s review of Fuller’s book.7 The sensible conclusion to draw from Fuller’s claims about the internal morality of law, according to Dworkin, is that these eight desiderata are ‘not only criterial, in the sense that some compliance is necessary to make law, but also strategic in the sense that some level of compliance is necessary to achieve whatever governmental purpose a legislator might have in mind’.8 The crucial alignment with Hart thus lies in how Dworkin’s primary charge against Fuller’s claims is the instrumental one: that Fuller fails to demonstrate why the value of the internal morality of law is anything other than that of efficacy, as that value accrues to the lawgiver’s pursuit of ends by virtue of complying with the principles of the internal morality of law. Like Hart, Dworkin also charges Fuller with offering no compelling argument in support of his contention that observance of the internal morality of law is somehow connected to the moral quality of legal ends. These two claims constitute the essence of Dworkin’s response to Fuller, and provide the basis for his declaration that The Morality of Law is ‘an unsuccessful attempt to establish a novel claim about law and morality’.9 Yet it would be wrong to suggest that Dworkin’s engagement with Fuller, especially in his Pennsylvania Law Review essay, is as dismissive as this conclusion seems to suggest. When turning to sketch his own project for legal philosophy concerning the logic of legal standards—a ‘different connection’10 between law and morality to which I will return below—Dworkin suggests that some ‘sound and important perceptions’ underlie Fuller’s ‘mistaken’ claims about the moral dimensions of law. These perceptions include Fuller’s suggestion that ‘the so-called formal features of law, bound up in the very meaning of the term and worked out by jurisprudential exercises, are indeed of normative as well as linguistic or strategic importance’.11 Still, the overriding message remains one about how Fuller is ‘mistaken’ in his idea that law is somehow ‘internally’ moral, with Dworkin here understanding Fuller as claiming that the principles of the internal morality of law are moral principles, in the ‘perfectly conventional sense’ of the term ‘moral’.12 This is an important point, as it provides the foundation of Dworkin’s assessment of Fuller’s morality claim. As Dworkin understands it, Fuller’s argument runs something like this. Because some of the most notorious examples of political immorality in history, such as in Nazi Germany or South Africa, involved gross violations of one or more of Fuller’s eight canons, we can conclude that the canons themselves are moral principles.13 Dworkin’s charge is that this claim on Fuller’s part contains two related mistakes. The first lies in drawing conclusions, as Fuller apparently does, from examples of political immorality which involve violations of the eight canons that these canons state moral principles. Dworkin rejects this: if a badly drafted statute is to have terrible moral implications, this will be a result of ‘the uses to which the statute is put, not merely the bad drafting’.14 But everyday cases of poor legislative draftsmanship, he argues, involve ‘no particular immorality’, but rather just a ‘considerable degree of confusion and inefficiency’.15 Fuller’s second mistake lies in his misunderstanding of what moral principles actually are. According to Dworkin, if we accept the idea that the eight canons of the internal morality of law state moral principles, it does not follow from that a lawgiver who observed these canons only to the extent necessary to make bad law (illustrated by Dworkin through the figure of a tyrant lawgiver, ‘Tex’) ‘could be said to be complying with moral principles’.16 When taking care to frame his discriminatory legislation with ‘some consideration for the physical capacities of his subjects’, Tex can in fact only be said to be complying with strategic, not moral, principles. Fuller’s canons, he therefore concludes, do not offer even a shade of moral argument in favour of what Tex is doing.17 Dworkin thus concludes that Fuller’s attempt to establish a novel claim about law and morality must fail. But there is more to the Pennsylvania Law Review essay than this. Most notably, unlike Hart, Dworkin does take space in the essay to mention Fuller’s argument that implicit in the internal morality of law is a conception of the person as a ‘responsible agent’, and that, for Fuller, this relates closely to how observance of the requirements of the internal morality of law upholds ‘man’s dignity as a responsible agent’.18 But it is clear that these ideas strike no significant chord for Dworkin, because he immediately dismisses them as involving no assertion of a necessary connection between law and substantive morality, and thus also no important conflict with ‘the classic or prototypical positivist position that law and morals are conceptually distinct’.19 The point I wish to develop is that what is missing here, and what could have generated a much more nuanced appraisal of Fuller’s position on Dworkin’s part (and indeed one more readily distinguishable from Hart’s) is any apparent sensitivity to the formal basis of Fuller’s claims. A combination of the archival materials and Dworkin’s published response to Fuller in the Villanova Law Review sheds light on this, as does Fuller’s own published reply.20 These remarks make clear that, faced with Dworkin’s interpretation of his claims, Fuller made a concerted effort, orally, to clarify how and why that interpretation had missed his point. Most strikingly, the remarks make apparent that Fuller had directed Dworkin to the morally significant idea of ethos that Fuller himself saw as animating the lawgiver’s role, and which the principles of the internal morality of law capture as principles of lawgiving.21 Dworkin’s response to this suggestion that law’s inner morality might be tied up with ‘a special set of moral duties or ideals binding upon those who accept certain offices or participate in certain enterprises’ is instructive.22 Acknowledging the interest of the idea in principle, he nonetheless marginalises its significance to debates about law and morality, properly understood, by designating it as ‘not part of my argument’:23 I do not quarrel . . . with the proposition that there is a morality particularly concerned with law and its enforcement. I differ with Professor Fuller only in denying that the very abstract canons he has produced (that law should be clear, public, prospective, enforced as written, etc.) in and of themselves are principles of this morality.24 This is the thrust of the historical record, but the question for now is whether this and other aspects of Dworkin’s engagement with The Morality of Law offers any instruction on how we might assess the relationship between his and Fuller’s jurisprudential projects today. To this end, the point that must be emphasised, as just foreshadowed, is the absence in Dworkin’s analysis of any meaningful interest in the form of law in the sense that Fuller intended—and, indeed, attempted to clarify—beyond the passing reference to how the ‘so-called formal features of law’ are ‘indeed of normative as well as linguistic or strategic importance’25 when Dworkin moves to his own concern for how legal standards are generated and what role they play in legal reasoning. But nowhere in either the Pennsylvania or Villanova essays is there any serious engagement with the possibility that this ‘normative importance’ might arise from the nature and presuppositions of these formal features. Instead, Dworkin’s published response to Fuller is striking for how he holds to his initial assessment of Fuller’s claims, despite clarifications about ethos, and despite Fuller’s presentation of the idea (echoing closely what he says in chapter four of The Morality of Law) that in an ordered system of law there is ‘a certain built-in respect for human dignity’.26 Fuller’s private papers suggest that Dworkin’s interventions on these points arguably struck a greater chord of irritation than did Hart’s review of The Morality of Law. In addition to the hot-headed first footnote that is attached to his ‘Reply to Professors Cohen and Dworkin’,27 Fuller’s archival notes wish Dworkin ‘God speed in his labours’ and hope that, when those labours are done, ‘he will do me the elementary courtesy of recognizing the highly qualified sense in which I can be said to be a “naturalist”’.28 The notes also speak with frustration of Dworkin’s ‘romantic figure of the fiendishly evil legislator, who delights to chase down his victims with an exquisite respect for legality’, but which, in Fuller’s eyes, cause Dworkin to overlook ‘what everyone knows’, namely, ‘that bosses or order-givers everywhere can have an interest in leeway, in obscurity, along with desire that everyone know the rules, a countervailing desire that a convenient flexibility be retained’.29 These reactions, irritated and combative as they are, might simply be an indication of the wearying effect on Fuller of having heard similar interpretations of his claims so many times before. But they also suggest that Dworkin became, for Fuller, something of a symbol for how far off the mark his critics’ understanding of his account of the internal morality of law could be, and how, despite his attempts to clarify the sources of the impasse, these misunderstandings could remain so evidently undisturbed. Dworkin, as is well known, moved on to develop his own distinctive challenge to the completeness of the positivist account of law. The thrust of the jurisprudence that has emerged from this challenge might be stated in the following terms. When confronted with a case in which the relevant legal rule is either unclear or incomplete, judges resolve that case not only by reference to established, posited legal rules, but also by recourse to moral principles which show the meaning of the law in its morally best light. These moral principles are equally legal principles because they are immanent in, or internal to, existing legal materials. When the judge brings these diverse materials to bear on the interpretive practice, she engages not in an exercise of extra-legal discretion but rather in a constructive process in which she aims for the best possible interpretation of what the law is, in light of the values of the legal order as a whole.30 The tests that guide this interpretive process, ‘fit’ and ‘appeal’, or ‘justification’, speak to both a concern for the coherence of the proposed interpretation vis-à-vis the wider legal order within which it will take its place, as well as a basis for justifying the state’s use of coercion towards the subject, through law, in the given instance. When we see how declarations of what the law is involve an interpretive endeavour along these lines, Dworkin argues, we come to see that law itself is necessarily an interpretive practice. That is, law is a practice that is understood by its participants as having point, or purpose, that serves something valuable in our lives. Legal participants, when engaging with law, thus aim to interpret that practice in a manner that reveals it in its best possible light. Recognising this enables us to explain the phenomenon of theoretical disagreement in law. When judges disagree about the meaning of a given law, their disagreements reflect fundamental contests not only about the meaning of the individual law in question, but also the point of legal practice as a whole. This line of argument leads Dworkin to the claim that not just the practice of adjudication, but all exercises in legal theory, are necessarily interpretive: jurisprudence is ‘the silent prologue to any decision at law’.31 It follows from this that what is really at stake in jurisprudence is a contest between different conceptions of the concept of law.32 Dworkin’s own conception of ‘law as integrity’ can be distinguished from his interpretive version of legal positivism, ‘conventionalism’33 and legal pragmatism,34 because: it supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the power it does . . . rights and responsibilities flow from past decisions and so count as legal, not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification.35 Dworkin’s sense of the point of law under law as integrity—the way that it secures ‘a kind of equality among citizens’—becomes critical to my discussion later in this chapter of how his account of the value served by legality might be distinguished from Fuller’s. For now, with a view to the engagement between Dworkin and Fuller on the issue of interpretation that I sketch below, two interrelated points invite emphasis. The first is how Dworkin insists that the interpretive process is highly bounded and constrained. That is, when the applicability of extant positive law runs out in a hard case, judges do not, as Hart argued, exercise discretion and make new law, but rather continue to be constrained by law that is here understood to also include the moral principles that bear upon the correct resolution of the case by showing the law in its best light. The second point, which flows from the first, is how this account is underscored by a clear sense of the judge as a bearer of responsibility. When making her interpretive decisions, the Dworkinian judge is acutely aware that, to discharge her interpretive task, she is responsible for meeting the demands of coherence and justification that sustain the legal order as a single, interconnected order. She is also aware of how this responsibility constrains the interpretive choices available to her. As he developed his debate with positivism about interpretation and its implications for rethinking the traditional contests of jurisprudence, it seems that Dworkin saw no cause to engage with Fuller’s observations on the same issues. Yet these observations feature in virtually all of Fuller’s jurisprudential writings, from The Law in Quest of Itself in 1941 and ‘Reason and Fiat in Case Law’ in 1946 through to his exchange with Hart in the 1958 Harvard Law Review and the two editions of The Morality of Law that represent a continuation of that exchange. As I foreshadowed in the preceding chapters, I have reserved a sustained engagement with Fuller’s understanding of interpretation until now because Fuller’s views on this subject are often presented as separate to, or at least separable from, his other claims. This is especially apparent in the ‘Reply to Critics’, where Fuller’s (re) engagement with the subject of interpretation forms one of several ‘implications’ of his ongoing debate with his critics on the matter of law’s morality and the inadequacy of the efficacy interpretation of his claims to this effect. He does not seek to position it as a key part of that debate.38 Yet, when we examine Fuller’s main statements about interpretation in succession, we can readily see the error of separating his thinking on interpretation too strictly from his wider jurisprudential concerns. The connection, above all, lies in how Fuller consistently speaks of the interpretative task as charged with a distinctive kind of responsibility: responsibility for ‘maintaining legality’. The point to explore for present purposes, then, is what we might learn from bringing this understanding of interpretation into conversation with how Dworkin’s more recent work has also arrived at ‘legality’ as the animating value of interpretation and, indeed, of law. Fuller’s approach to interpretation starts from the idea, expressed consistently throughout his writings, that those who participate in the practice of interpreting law must orient their task to understanding its purposes, small and large. A judge is charged not only with the task of interpreting individual laws in light of the purposes that the legislator had in mind when enacting them, but also in light of how those laws belong to a wider legal order which makes demands on the interpretive task in its own right. Proceeding chronologically, Fuller first articulates this view in The Law in Quest of Itself.39 There, his target is the narrow range of vision of (pre-Hart) legal positivism generally, but also specifically in the positivist’s resistance to ‘the looser and freer ways characteristic of ethical thinking’.40 In the concluding pages of Law in Quest, Fuller develops this point into an account of the judge’s role when he suggests that the judge, when deciding cases, ‘is not merely laying down a system of minimum restraints designed to keep the bad man in check, but is in fact helping to create a body of common morality which will define the good man’. In doing so, the judge discharges a responsibility ‘to the future’ that is otherwise evaded if she were to adopt ‘a passive and positivistic attitude towards “the existing law”’.41 Published five years after Law in Quest, ‘Reason and Fiat in Case Law’ reveals more about Fuller’s sense of interpretation as a bounded enterprise, in which ‘the nature of the task’ imposes certain limitations on the judge.42 Among the many responsibilities that interpretation requires a judge to discharge, Fuller identifies a responsibility towards ‘rightness’. That is, a judge faced with the interpretive task understands that it is her responsibility to see that her decisions are ‘right’, meaning, ‘right for the group, right in the light of the group’s purposes and the things that its members sought to achieve through common effort’.43 The next site where interpretation occupies a central place in Fuller’s writings is his response to Hart in the 1958 Harvard Law Review. Despite being by far the most famous statement of his approach to interpretation and its relationship to his rejection of the positivist separability thesis, Fuller’s treatment of interpretation in this context in many ways detracts from, rather than profitably develops, the line of thinking that animates the earlier writings. Moreover, as Frederick Schauer has suggested, valid questions can be raised about the extent to which Fuller properly appreciated the content of Hart’s arguments about interpretation to which he was responding.44 Still, what is clear is that Fuller’s 1958 reply to Hart sees his avowedly purposive approach to interpretation coming through, and most apparently in his rejection of Hart’s idea that when the clarity of ‘core’ extant law runs out, judges exercise discretion and make new law in a ‘penumbral’ space. His commitment to the view that the interpretive task is bounded by the judge’s larger responsibilities towards the demands of maintaining the coherence of legal order, writ large, is equally clear. This last point emerges strongly in Fuller’s objections to Hart’s view that the majority of cases see judges remaining within the core of accepted legal meanings rather than in the penumbra of uncertainty. Here, Fuller raises the question of how one might characterise the interpretive task in relation to a hypothetical statute ‘which prohibits anyone to sleep in any railway station’, and which sees two men brought before a judge, the first for falling asleep while sitting waiting for a train, and the second for settling down for the night but who was not yet asleep when he was arrested.45 The question Fuller puts to Hart is to explain ‘how the ideal of fidelity to law is served if the judge fines the second man and sets free the first’.46 The question is intended to support his argument that interpretation is, above all, not about individual words, but about taking on responsibility for maintaining laws that are intelligible to their subjects’ situation: The judge does not discharge his responsibility when he pins an apt diagnostic label on the case. He has to do something about it, to treat it, if you will. It is this larger responsibility which explains why interpretive problems almost never turn on a single word, and also why lawyers for generations have found the putting of imaginary borderline cases useful, not only ‘on the penumbra’, but in order to know where the penumbra begins.47 Little changes in this understanding of the task of interpretation from Fuller’s first response to Hart in 1958 to his final ‘Reply to Critics’ in 1969, including his statement in The Morality of Law that ‘legality’ requires that legal officials ‘apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order’.48 Like the passage just quoted, the Dworkinian flavour of this statement is hard to miss. But it is in the ‘Reply’ where Fuller takes his account of interpretation in the direction of the theme of the ‘cooperative nature of maintaining legality’ that is central to his attempt to clarify the impasse between him and his critics in that ‘last word’ of the Hart-Fuller debate:49 If we discern, as a basic element of law, a commitment by government to abide by its own law in judging the acts of its subjects, then interpretation will occupy in theory the central place it has always occupied in our everyday thinking about law. This emphatically does not mean that the problem will become simple; on the contrary its hidden complexities will come to light and we shall no longer be able to pretend that it is a peripheral matter to be left to unreflective common sense.50 To see what Fuller has in mind here, the content of his ‘legality’ orientation, it is helpful to look elsewhere in the ‘Reply’ where he observes that his analysis may seem on its face to suggest that what is demanded of an interpreting agency is simply that ‘it achieve a balance of restraint and initiative in correcting the errors and oversights of superior authority’.51 In his explanation of why the demands of interpretation are in fact much more complex than this, Fuller observes that an interpreting agency must always bear in mind that its perceived standards of interpretation ‘are likely to create expectations among those affected by them and that sudden shifts in those standards may impair the collaboration essential for achieving and maintaining legality’.52 This point invites emphasis for how it sees Fuller return to his sense that the form of law is a structure that facilitates the collaborative activity, between mutually responsible agents, necessary for law to work. Among his writings, the site where this concern for responsiveness not only speaks to the adjudicator’s role morality, but also to the institutional form of adjudication, is ‘The Forms and Limits of Adjudication’.53 I explained in chapter two, when considering the contribution of this essay to Fuller’s eunomics inquiry, that the thrust of ‘Forms and Limits’ is the argument that the distinctive feature of adjudication, as an institutional form, is not the office of the judge but the peculiar form of participation that adjudication affords to its participants: the opportunity to present proofs and reasoned arguments before an impartial observer.54 Adjudication, on Fuller’s account, is a ‘device which gives formal and institutional expression to the influence of reasoned argument in human affairs’, thus respecting not only its participants’ capacity for reason but also, in affording them an equality of participation through its form, their equality as agents.55
Resituating Fuller II: Dworkin
I Fuller and Dworkin
II The 1965 Essays
III Dworkin’s Project
IV Fuller, Dworkin and Interpretation