The Morality of Law


The Morality of Law

The Morality of Law is the product of the ‘welcome spur’ of an invitation to Fuller to deliver a series of four lectures at Yale Law School in April 1963.1 The chapters of the book, each having its own fairly distinct sphere of concern, stand as a record of those lectures with apparently few changes. It was Fuller’s personal view that the ideas expressed in The Morality of Law represented considerable ‘progress toward clarity’ in his articulation of his position.2 In some ways this seems a sound assessment. Still, especially in his effort to offer a foundation for the book in the idea that we can distinguish between the morality of ‘duty’, concerned with the basic rules without which an ordered society is impossible, and the morality of ‘aspiration’, concerned with the qualities of human potential and striving, Fuller admitted that some of his claims were, at best, a little obscure. Indeed, he registered this dissatisfaction in a letter to Hart, following his receipt of Hart’s review of The Morality of Law, agreeing with Hart that his analysis of the moralities of duty and aspiration was ‘full of open ends’, but had he tried to trace out all the relationships implied by it, he ‘would never have got past the first lecture’.3

The more fruitful place to begin an acquaintance with The Morality of Law is Chapter 2: Fuller’s famous attempt, through the tale of a hypothetical legislating monarch, King Rex, to explore what it means to fail to make law. Chapter 2 is the right place to start for a number of reasons. First, akin to what we saw in his analysis of Nazi law in the 1958 debate, Chapter 2 sees Fuller head into his claims and analysis on the ‘front foot’: that is, rather than being on the defensive, he is here squarely in the territory of his core jurisprudential intuitions.

Accordingly, my method for structuring the discussion of the present chapter is as follows. I begin in section I with a detailed exposition of the allegory of King Rex, and the lessons that Fuller seeks to extrapolate from Rex’s eight failures to make law. I then turn to Fuller’s attempt in Chapter 3 of The Morality of Law to situate his claims about law’s internal morality within the extant landscape of legal philosophy, including with respect to Hart’s The Concept of Law, which had been published in the intervening period. I then move from these foundations to the site of analysis in Chapter 4 of the book that has, until relatively recently, been largely neglected in commentaries on Fuller’s jurisprudence. But it is here, in defence of his choice to designate his principles of the internal morality of law as a ‘morality’, that Fuller introduces the idea that implicit in the very possibility of law is a conception of the person as a responsible agent.

My aim in section I of this chapter is thus to show the keys ways in which The Morality of Law provides us with crucial insight into the parameters of Fuller’s jurisprudence in its own right, but while also positioning itself as a continuation of his debate with Hart. With respect to the latter, Fuller was certainly on the ‘back foot’: the invitations to conversation that he presented in his 1958 reply to Hart were barely taken up by Hart in The Concept of Law, occupying no more than a handful of lines. But it is precisely this bare response that causes Hart’s book to loom large over The Morality of Law, because Fuller, it seems, simply refused to let Hart close the conversation so dismissively—or, at least, that was his intention.

To a certain extent, his efforts in this vein bore fruit: Hart published a review of The Morality of Law in the 1965 Harvard Law Review. But this response ultimately turned out to be double-edged for Fuller. Yes, he finally received the engagement from Hart that he had so energetically invited. But that engagement—specifically, Hart’s response that the principles of the internal morality of law are merely morally neutral aids to the efficacy of law—basically had the effect of settling the dominant interpretation of Fuller’s jurisprudence and its widespread evaluation as an unsuccessful rejoinder to positivism on the matter of the necessary separability of law and morality.

My task in section II, therefore, is to offer a close analysis of Hart’s review and its implications for how the scholarly memory of Fuller’s contribution to jurisprudence has been constructed and largely maintained to this point. To aid this inquiry, two sites of additional material are drawn upon. First, correspondence between Fuller and Hart is examined, alongside several of Fuller’s private working papers, to highlight a problem of misinterpretation, or more accurately, incomplete quotation of his claims on Hart’s part, that greatly distressed Fuller in how it suggested that he, too, saw the value of the internal morality of law as reducible to efficacy. Second, gesturing to the response he comes to develop in his final reply to his critics in 1969, I also turn to a little-known essay of Fuller’s from 1968 which offers illuminating insight into how he appears to have been thinking through ways to defend his position against that ‘efficacy’ reading.

I then turn in section III to take this objective of unsettling the scholarly memory of Fuller’s contribution a step further. This time, however, I head in the direction of speculation about how Fuller’s jurisprudence might have developed but for Hart’s reply and the effect it had on narrowing the terms of the debate between them. Here I draw the foundations of my analysis from private correspondence that belongs to the intervening period between the publication of The Morality of Law and Hart’s review, and which offers tantalising insight into some of the under-explored themes of The Morality of Law. My aim in this section, akin to what I pursued in the final section of chapter three in my gestures to a Fullerian standard of legal validity, is to present an analysis that is exploratory and suggestive only. Again, Fuller himself did not provide us with enough to go much further than this, or at least not exclusively in his name. Still, and not least because of how this correspondence engages with the matter of the conception of the legal subject as an agent that Fuller argues in The Morality of Law is implicit in the very possibility of a legal order, his brief foray into the idea that slavery is inherently incompatible with law is, at least, an intriguing proposition that invites further thought.

I Mapping The Morality of Law

A The Story of King Rex

Fuller’s story of the well-intentioned but ultimately hapless monarch who fails in eight ways to make law follows closely from the brief tale of the lawmaking monarch in his 1958 reply to Hart. But in Rex’s case, the lessons we are invited to take are spelled out much more carefully and systematically than the more intuitive remarks of the 1958 essay. This is immediately apparent from how Fuller sets up Rex’s story in a manner that is importantly suggestive of the arguments that he seeks to convey through the tale.

We are told that Rex, conscious of the fact that the greatest failure of his royal predecessors had been in the field of law, came to the throne with the zeal of a legal reformer and resolved to make his name in history as a great lawgiver.4 Rex therefore began his reign not just with good intentions, but distinctly legal ones, keen to understand what it takes to excel at the enterprise of lawgiving. Unfortunately, however, his pursuit of this goal was plagued with difficulties from the start. Rex struggled to achieve appropriate generality in his rules and to keep his decisions with respect to those rules consistent.5 Some of his laws were kept secret while others were applied retroactively.6 His skills of legislative draftsmanship suffered too greatly from obscurity,7 his laws perpetuated confusion and then were changed too frequently.8 Then, in his capacity as an adjudicator, he rendered judicial opinions that bore little relation to the enacted laws on which they were allegedly based.9 Deeply disillusioned, and facing revolt from his subjects, Rex died a miserable King. His efforts, however, were not entirely futile. Learning from Rex’s mistakes, the first act of his successor, Rex II, was to take the powers of government away from the lawyers and to place them in the hands of psychiatrists and experts in public relations, so that his people might be made happy without rules.10

What are we invited to take from this playful tale? By presenting us with an account of legal pathology and failure, of how not to create and maintain a legal system, the story of Rex is designed to make us think about what it might take to replace such failure with success. As Fuller enumerates them, the pathologies that rendered Rex’s plight so hopeless were (1) a failure to achieve general rules at all; (2) a failure to publicise or make available the rules that citizens are required to observe; (3) the abuse of retroactive legislation; (4) a failure to make rules understandable; (5) the enactment of contradictory rules; (6) rules that require conduct beyond the powers of the affected party; (7) subjecting the rules to too-frequent change; and (8) a failure of congruence between the rules announced and their actual administration.11 Corresponding to these failures, Fuller suggests, are ‘eight kinds of excellence towards which a system of rules may strive’, and which together comprise the ‘internal morality of law’.12 A total failure to meet any one of these principles does not simply result in a bad system of law, but in something ‘that is not properly called a legal system at all’.13

Echoes of this last claim will be recalled from Fuller’s 1958 reply to Hart, and I took space in chapter three to explore how such might be read as a claim not only about what constitutes a meaningful idea of law but perhaps also a standard for legal validity. But in Chapter 2 of The Morality of Law, the point Fuller seeks to make concerns the connections between observance of the standards of the internal morality of law and the existence of a legal system, and the legal subject’s obligation of obedience. As he argues it, ‘there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute’.14 This release from moral obligation does not arise because it is necessarily impossible to obey a rule that is then disregarded by those charged with its administration, but rather, Fuller argues, because ‘at some point obedience becomes futile—as futile, in fact, as casting a vote that will never be counted’.15

Fuller’s reasoning here is undoubtedly a little obscure. But the argument he is trying to develop becomes clearer when he then proceeds to situate his point within the context of a further claim: that the legal subject’s moral obligation to obey law only arises in the first place in response to, or in anticipation of, the lawgiver’s corresponding effort to create and maintain a workable legal order within which she might be able to live her life. As Fuller explains it, to secure the legal subject’s fidelity to law, a lawgiver must enter into a relationship of ‘reciprocity’ with her. But if this bond of reciprocity is finally and completely ruptured, then ‘nothing is left on which to ground the citizen’s duty’ to observe the lawgiver’s rules.16

The precise content of this bond between lawgiver and subject is not specified, and neither are the kinds of circumstances that might lead to its rupture. But we are told that the respect conveyed by the legal subject to the lawgiver’s authority is not only essential for the existence of law, but must not be confused with a ‘mere respect for constituted authority’: after all, Rex’s subjects remained faithful to him even while they were not faithful to his law (because, in any event, Rex never actually made any law).17 The point being made, then, is that fidelity to law is something qualitatively different to deference to authority. Even if wielded by a human person, the possession of lawgiving power specifically is still something to be distinguished from the possession of power generally. Indeed, Fuller suggests that the possession of lawgiving power, discharged through observance of his eight principles of the internal morality of law, concerns ‘a relationship with persons generally’, and so is something that demands more than mere forbearance on the part of a lawgiver.18 It instead requires the direction of human energies towards ‘a specific kind of achievement’: one that appeals ‘to a sense of trusteeship and to the pride of the craftsman’.19

Fuller moves from this framework of jurisprudential claims to tell us more about the eight principles themselves. He begins with the requirement of law’s generality, observing that this ‘obvious’ and fundamental feature of law in fact receives a ‘very inadequate treatment in the literature of jurisprudence’.20 But Fuller himself also treats generality fairly sparingly in The Morality of Law, explaining simply that this requirement stands for the idea that there be general rules of general, rather than particular, application. Generality does, however, later become an important site of reflection for Fuller when he seeks to clarify the impasse between him and his critics that develops with respect to his claims about why law is internally moral.

As for the demand of promulgation, or publicity, Fuller suggests that this is similarly fundamental to a meaningful idea of law, even if it is not possible to generally specify just how much information about the law needs to be conveyed to the citizen, or in what form. But the bottom line is that the law must be readily available to her: she is entitled to know its content, and to criticise it.21 The desideratum of clarity then stands as recognition of how an obscure or incoherent law can greatly impair the attainment of a condition of legal, as opposed to some other kind of order, whether that obscurity is committed by legislators or judges, though it is notable here that Fuller especially emphasises the responsibility of legislators to make their objectives sufficiently clear so as to minimise the level of interpretation needed on the part of the courts and administrative tribunals charged with the task of putting the law into effect.22 The requirement of non-contradiction is portrayed as speaking primarily to the problem of poor draftsmanship, and how this can render the law unable to be followed,23 while the gist of the requirement of avoiding impossibility is similarly concerned with how a rule that demands what is impossible contradicts ‘the basic purpose of a legal order’.24 Then, the sixth requirement of constancy through time is one that expresses recognition of how too-frequent change in the law can amount to something akin to retroactivity, in so far as citizens are unable to know, or at least are impaired in being able to know, precisely which laws apply to them at a given point in time.25

A much more extended treatment is given to the remaining two principles of non-retroactivity and congruence between official action and declared rule. Fuller explains that the reason why non-retroactivity is such a complex demand is because its total prohibition may not necessarily always serve legality. A retroactive statute can, in certain instances, be an important curative measure in repairing the ‘various kinds of shipwreck’ in which a legal system might find itself.26 The complexity of the requirement of non-retroactivity thus arises from how and when to know the difference; that is, how to know when its breach represents a tolerable sacrifice of legality, as opposed to when such would be an abuse of the feature of prospectivity that otherwise makes sense of the enterprise of governing through rules.

But it is the eighth principle of congruence between official action and declared rule that Fuller suggests is the most complex of all the desiderata that make up the internal morality of the law. This is because the principle speaks to the relationship between law and its administration; a relationship that may be destroyed, or impaired, in ways ranging from mistaken interpretation, to a lack of insight about what is required to maintain the integrity of a legal system, to simple prejudice.27 The message, above all, is about how the principle of congruence requires an appreciation, on the part of the relevant legal and administrative actors, of the purposes that legal order itself is intended to fulfil. This point is stated especially succinctly when Fuller explains why, in his view, the ‘most subtle element’ in the task of maintaining congruence between law and official action lies in ‘the problem of interpretation’. As he elaborates it, ‘legality’ requires that judges and other law-applying 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’.28

The eight standards of Fuller’s internal morality of law, each ostensibly neatly self-contained and presiding over its own distinct domain, do tend to read like something of a checklist for how to create and maintain a legal order. If the eight criteria are met, law exists and is being done the right way. This might seem right—indeed, it has been the dominant reading of Fuller’s account for decades. Still, reading Fuller in this narrow way has led to considerable misunderstandings about, or at least unduly narrow interpretations of, his jurisprudence.29

Thus, as I foreshadowed in chapter one, the meaning of the internal morality of law in fact needs to be understood in much more capacious and nuanced terms than the ‘checklist’ reading tends to invite. The key to the correct reading of the internal morality of law lay precisely in what is hinted at in Fuller’s suggestion that certain instances of retroactivity might be permissible if they serve the cause of legality. When Fuller speaks of law and its existence, he has in view a particular quality of relationship between the lawgiver and the legal subject, one that is reflected in the observance of his eight principles but which is not exhausted by them. Certainly, over the course of his writings, Fuller comes to suggest that some of these principles, especially the principles of generality and congruence, occupy a particularly central place within his understanding of what it means to have and to sustain a condition of legality.30 But if we are to gain a deeper appreciation of the idea of legality of which he speaks, and which the eight principles are designed to instantiate, operationalise and serve, we need to move towards the more capacious understanding of law’s ‘form’ that I sketched in chapter one; that is, a conception of the form of law that is inclusive of the conception of the person as a responsible agent that Fuller argues is implicit in the internal morality of law. Corresponding to this, we need equally to think more deeply about Fuller’s repeated references to the relationship of ‘reciprocity’ that a legal system constitutes, and which signals the equal presence and responsibilities of lawgiver and legal subject alike, as well as his gestures to how the enterprise of lawgiving implicates a ‘sense of trusteeship’ and a ‘relationship with persons’. I turn to each of these points in more detail below.

B Situating Fuller’s Claims

Fuller’s task in Chapter 3 of The Morality of Law is to put his analysis of the internal morality of law into ‘its proper relation with prevailing theories of and about law’.31 He begins with the natural law tradition, and suggests that his model of eight principles might be read as an attempt to discern and articulate the ‘natural laws’ of a particular kind of human undertaking, namely, ‘the enterprise of subjecting human conduct to the governance of rules’.32 This is a different kind of project to traditional natural law theories and their focus on the idea that positive law ought to be evaluated against some kind of higher moral law. As Fuller puts it, if any metaphor of elevation is appropriate, his eight principles should be called ‘lower’, rather than ‘higher’, laws, ‘like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it’.33 The internal morality of law is thus a kind of ‘procedural’ rather than ‘substantive’ natural law, concerned with the ways ‘a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be’.34

As I explained in chapter two, these comments are generally representative of Fuller’s very qualified association with the natural law tradition, as the concerns of that tradition are typically understood. At most, Fuller here places himself broadly within the school that, he says, has historically shown some concern for the ‘problems of social architecture’ involved in creating and maintaining a legal order.35 But that is about as much as we take from Chapter 3 of The Morality of Law with respect to Fuller’s sense of his jurisprudence as a natural law project. The chapter is otherwise more squarely concerned with developing the implications of Fuller’s claims about the internal morality of law for his debate with legal positivism.

There is undoubtedly a level of mischief intended by the title that Fuller gives to Chapter 3: ‘The Concept of Law’. Hart, however, is not singled out immediately; indeed, he is ‘passed over’ until quite late in the chapter.36 Fuller instead begins the project of situating his claims by grouping positivists and realists in the same mix of legal philosophies that see the essence of law in ‘a pyramidal structure of state power’, abstracted from ‘the purposive activity necessary to create and maintain a system of legal rules’,37 and thus in contrast to his view of law as ‘an activity’, and a legal system as ‘a product of a sustained purposive effort’.38

Fuller immediately identifies several objections that might be advanced against his view of law, especially how to speak of law as an enterprise is to imply that it may be carried on with varying degrees of success, and so also to suggest that the existence of a legal system, and, indeed, sometimes also of particular laws, will always be a matter of degree.39 But he is strongly resistant to these objections: they simply illuminate the erroneous assumption, even if a dominant one within modern legal philosophy, that ‘law is like a piece of inert matter—it is there or not there’.40

This is the background against which Fuller turns to Hart’s The Concept of Law. The central thesis of The Concept of Law, well-known to students of jurisprudence as the backbone of modern positivism, is that legal order is the product of the union of two different types of rules: ‘primary rules’ that regulate human action by imposing duties, and ‘secondary rules’ that confer powers to enable the alteration of existing, or the introduction of new, primary rules.41 The most important of these secondary rules is the ‘rule of recognition’ which, when supplemented by an ‘internal point of view’ on the part of legal officials that recognises this rule as establishing the relevant legal system’s standard for legal validity, unifies that system by providing an identifiable site of legal authority.42

Fuller makes clear at the outset of his engagement that although he regards The Concept of Law as a ‘contribution to the literature of jurisprudence such as we have not had in a long time’, he is in ‘virtually complete disagreement’ with all aspects of Hart’s book.43 His primary objection relates to how the analysis of The Concept of Law proceeds in terms that systematically exclude any consideration of problems of the internal morality of law.44 The main target of Fuller’s criticism here is Hart’s rule of recognition, specifically, how Hart’s account of this rule seems to suggest that the power to recognise valid laws comes without limitation. As far as Fuller can see, it is as if Hart’s account of the very foundations of legal order ‘were designed to exclude the notion that there could be any rightful expectation on the part of the citizen that could be violated by the lawgiver’.45

These criticisms of the rule of recognition follow closely from the argument Fuller introduced in his 1958 reply to Hart that Hart’s version of legal positivism fails to meaningfully accommodate the phenomenon of the abuse of law or, as I put it in chapter three, an idea of legal pathology (a term that Fuller himself here uses).46 In The Morality of Law, however, we see Fuller suggest that this omission on Hart’s part not only reflects an apparent disregard for the position of the legal subject and the reciprocities involved in maintaining legal order, but also contradicts Hart’s stated aim of moving the theory of legal positivism away from its Austinian association with coercion and sanctions. As he puts it, ‘if the rule of recognition means that anything called law by the accredited lawgiver counts as law, the plight of the citizen is in some ways worse than that of the gunman’s victim’.47 That is, if lawgiving power comes without any meaningful limitations in favour of the position of the subject, how is the concept of law that animates Hart’s positivism ultimately any different from the idea of law as a command?

It is a pity that Fuller did not extend this objection to the analysis in The Concept of Law where Hart explains that the internal point of view towards the rule of recognition need only be held by the officials of the legal system. Such a society ‘might be deplorably sheeplike’, and the ‘sheep might end in the slaughterhouse’, Hart says, but so long as the legal officials adopt an internal point of view towards the rules, a legal system will exist and there is no basis for denying it that title.48 Fuller, however, does not address this passage at any point in The Morality of Law, so we can only assume that its basic thrust receives implicit attention in his critique of the potential for abuse of power inherent in Hart’s rule of recognition.

The Concept of Law does, however, reappear in a different setting and with different aims in view in Chapter 4 of The Morality of Law. There, Fuller begins his discussion of ‘The Substantive Aims of Law’ by referring to Hart’s analysis of the relationship between law and morals, and specifically, within this, his analysis of whether the determination of legal validity is in any way connected to morality. It is this analysis that constitutes the sum total of Hart’s engagement with Fuller’s reply to him in the 1958 Harvard Law Review. As Hart explains it:

Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact involved in any method of social control—rules of games as well as law—which consists primarily of general standards communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed, one critic of positivism has seen in these aspects of control by rules something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection between law and morality means, we may accept it. It is unfortunately compatible with great iniquity.49

The brevity and dismissiveness of this response naturally did not go unnoticed by Fuller, the unnamed ‘critic of positivism’ in question. In The Morality of Law, Fuller follows his quotation of Hart’s point with the comment that ‘one could not wish for a more explicit denial of any possible interaction between the internal and external moralities of law than that contained in this last sentence’.50 Fuller’s statement is surely correct, but the effect of Hart’s concluding lines has been much greater than this, in terms of how debates about law and morality generally, and analyses of Fuller specifically, developed in the second half of the twentieth century. To see why, it is important to notice the apparent distinction that Hart introduces in the passage between what might or could be addressed by inquiry into whether there is a necessary connection between law and morality, and what Hart himself evidently thinks should be the subject of any such inquiry, namely, the relationship between observance of Fuller’s eight principles and the moral character of legal ends. By suggesting that nothing in Fuller’s internal morality of law guards against the pursuit of ‘great iniquity’ through law, the conclusion Hart invites us to take is that nothing salient for debates about the connection between law and morality can flow from jurisprudential inquiry into the features of ‘control by rule’. Thus, nothing needs to be said about Fuller’s jurisprudential project, at least as a contribution to debates about the necessary connections between law and morality, because those debates pivot on the question of the moral quality of legal ends. As far as Hart is concerned, therefore, the Hart-Fuller debate is over, if indeed it ever got off the ground.

This, indeed, is precisely what happened, and the history of how Fuller’s jurisprudence was and largely continues to be received can basically be traced to these lines from The Concept of Law, consolidated later by Hart’s response that Fuller’s ‘moral’ principles of lawgiving merely make the pursuit of purposes through law more effective, whatever those purposes might be. But in Chapter 4 of The Morality of Law, Fuller responds by offering a diagnosis of what, from his perspective, is wrong with Hart’s neat conclusion that observance of the principles of the internal morality of law (or what Hart terms ‘principles of legality’) is ‘unfortunately incompatible with very great iniquity’.51 He suggests that although we might accept that the internal morality of law is essentially ‘procedural’ in character, such that compliance with it may ostensibly lend efficacy to a wide variety of substantive aims, this need not also mean that ‘any substantive aim might be adopted without compromise of legality’.52

Fuller’s point here is one about how the form of law may temper its substance; an idea that he suggests Hart is unable to engage with because of how positivists tend to regard the problem of achieving and maintaining legality as deserving ‘no more than casual and passing consideration’.53 The argument Fuller advances in support of this point is somewhat underdeveloped, but we gain insight into its basic thrust when he goes on to note the slender treatment given by Hart in The Concept of Law to the philosophical quandaries presented by Nazi legality; a conversation that Fuller is evidently not willing to relinquish.54 Other instances of oppressive law, he argues, such as South African apartheid laws, seem to point us to the same intuition that he defended in his 1958 reply to Hart; namely, that when pursued through law, oppressive aims tend to be accompanied by a deterioration in the standards of the internal morality of law.55

C Conception of the Person Implicit in Legality

The analysis just described belongs to Chapter 4 of The Morality of Law, a site that for a long time was mostly neglected in scholarly commentary on Fuller’s jurisprudence, critical and sympathetic alike. Hart’s review of The Morality of Law, for instance, makes no meaningful reference to the concerns of the chapter beyond the comment that it contains some interesting observations on ‘problems of institutional design’.56 Ronald Dworkin’s review, which I examine in chapter seven, at least contains some passing references to the claims of Chapter 4, but ultimately squares with Hart’s in its conclusion that none of those claims conflict with ‘the classic or prototypical positivist position that law and morals are conceptually distinct’.57

This practice on the part of Fuller’s interpreters of basically bypassing the analysis of Chapter 4 of The Morality of Law is surely curious, given that the stated aim of the chapter is to defend why the internal morality of law deserves the designation of a ‘morality’, and thus, by extension, to further defend the case for why this morality threatens the positivist separability thesis. The thrust of this defence, which follows closely from Fuller’s claims about how the pursuit of oppressive aims through law tends to be accompanied by a deterioration in the standards of the internal morality of law, is contained in a passage where Fuller elaborates the claim that implicit in the internal morality of law is a conception of the person as a responsible agent:

I have repeatedly observed that legal morality can be said to be neutral over a wide range of ethical issues. It cannot be neutral in its view of man himself. To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.

Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination. Conversely, when the view is accepted that man is incapable of responsible action, legal morality loses its reason for being. To judge his actions by unpublished or retrospective laws is no longer an affront, for there is nothing left to affront—indeed, even the verb ‘to judge’ becomes itself incongruous in this context; we no longer judge a man, we act upon him.58