The Reply to Critics


The Reply to Critics

Naturally you play a prominent role in this Reply, and I shall airmail a copy to you as soon as it becomes available. I concentrate on the issue which I consider central to the whole controversy, that is, whether respect for the principles of legality is merely a matter of ‘efficacy’ or deserves to be regarded as a distinctive morality of law-making and law-administering.1

Such are the words that Fuller wrote to Hart in March 1969, notifying him of the new fifth chapter, ‘A Reply to Critics’, that would be appended to the second edition of The Morality of Law. As the letter makes clear, that ‘Reply’ was to make Hart’s and other critics’ insistence that the value of observance of the principles of the internal morality of law is merely reducible to efficacy the centrepiece of its response. But it is one thing to diagnose and quite another to develop that diagnosis into a conversation that is more congenial to, or will more congenially serve, one’s own contribution. This is the challenge that Fuller faced when he chose to pen the ‘Reply’.

Indications of what was to find expression in the ‘Reply to Critics’ can be found in a number of the writings that Fuller published in the period between the first and second editions of The Morality of Law. This, as we saw in chapter four, is clearly so in the case of the story of the tyrant from the 1968 essay ‘Freedom as a Problem of Allocating Choice’, which appears to test the waters of a response to his critics on the matter of whether the value of legal order is reducible to the efficacy with which it aids a lawgiver’s pursuit of his ends through law.2 But there are several other works, at times equally surprising as contexts for testing his jurisprudential claims, that offer similar insight. One is the introduction that accompanies the republication of Fuller’s 1930–31 essays on legal fictions.3 Penned in 1967, this introduction is intriguing in its own right for how it reflects on the aims of work completed almost forty years earlier. But what is interesting for present purposes is how, at points, that introduction becomes a platform for a polemic against the ‘analytical’ approach generally, and specifically how legal philosophy, in its disfavour towards ‘holistic’ and ‘comprehensive’ views, tends ‘to disregard the institutional processes that bring law into existence and produce its efficacy in human affairs’.4

Another (intriguing) site for exploring themes that were to become central to the ‘Reply’ is Fuller’s 1965 essay, ‘Irrigation and Tyranny’.5 Fuller himself described ‘Tyranny’ as ‘the best thing I have ever written’, by which he meant that ‘it compacts into fewer pages more of the basic ideas that I have been struggling with than anything else I have written’.6 This in itself suggests that there are important cues for us to take from the essay, even if, given its apparent inquiry into the limits of despotic power and the social conditions that foster or inhibit its growth, ‘Tyranny’ appears at first glance to have little affinity with the criticism of legal positivism found in the ‘Reply’. Though it is not clear, from the dates, whether ‘Tyranny’ was already written when Fuller received Hart’s and other reviews of The Morality of Law, what is clear is that Fuller seeks in the essay to develop his thinking on the idea that every kind of social power is ‘subject to an implicit constitution limiting its exercise’,7 and to link this intuition to his critique of how such is overlooked by those who ordinarily define law ‘as consisting of those rules that emanate from some human source that is itself regarded as formally authorized to enact or declare law’, and who appear to accept that, in the absence of explicit constitutional limitations, ‘this human source can enact anything it sees fit into law’, whether or not those laws are ‘wise or foolish, intelligible or obscure, just or unjust, prospective or retrospective in effect, general or specific in their coverage, published or unpublished’.8 In all this variety, Fuller suggests, adherents to source-based conceptions of law assume that there is no structural constancy to law itself, ‘except that imposed by the formal rule’ which identifies its authorised source.9

The working notes for these writings, especially those for what was to be published in 1968 as Anatomy of the Law, also tell us much about Fuller’s thinking en route to the ‘Reply’; indeed, they often speak to a more expansive agenda than that which Fuller ultimately came to address either in that book or in the ‘Reply’. Concerns addressed include not only the issue of efficacy and positivism’s neglect of the structures and relations antecedent to law, but also how positivism neglects to explore what it means for law to exist in ‘a meaningful sense’.10 There is also a more direct engagement with the question of the connections between law and morality than we see in the ‘Reply’, such as one note that succinctly explains how the distinction between law and morality ‘can touch three different aspects of a legal order: (1) its foundation in public acceptance, (2) the manner in which it is constructed and administered, and (3) the ends at which it is ultimately aimed’.11

The writings penned between the first and second editions of The Morality of Law thus provide illuminating access into the ideas Fuller was toying with as he considered how to respond to his critics. But the working notes for the ‘Reply’ itself provide the most telling insight into what he thought to be at stake in the task of responding to those critics. These notes stand as a fascinating record of Fuller’s attempt to lay bare the causes of the controversy in which he found his claims embroiled, and the wide array of titles that frame the notes bear witness to this effort. Many are framed around the question ‘What is at stake?’, or ‘Is there such a thing as legal morality?’. Several others are headed with the somewhat more obscure ‘Structure of Purpose’, or gesture to the content of specific claims that Fuller sought to clarify, such as those given the titles of ‘Generality’, or ‘Reciprocity’, or ‘Legal morality—identification with subject’. Indeed, one working note is striking simply for how Fuller appears to have changed his mind several times about what exactly its framing idea needed to be. The initial ‘What is at stake’ is crossed out and replaced with ‘Law and Legality’, which is then again crossed out again and replaced with ‘Legal Morality’, before Fuller turns to the point to which this complex attempt at framing is meant to refer; a point, simply and succinctly put, that is itself instructive of what he thought was at stake.12 As he brought the 11-year trajectory of the Hart-Fuller debate to a close, Fuller evidently still thought that he needed to ‘explain fact that legal system always stands between political rule, on one side, and citizen on other’.13

The working notes for the ‘Reply’ play a significant role in the analysis to follow because it is my view that the ideas revealed in them not only help us to clarify the content of Fuller’s claims, but also to see their interconnections in ways that we might not necessarily detect through a reading of the ‘Reply’ standing alone. This is not to suggest that the differences between the published and unpublished texts are radical: all that is said in the working notes is essentially consistent with what is said in the published essay. But, able to record his intuitions without fearing the scrutiny of his critics (scholars who he knew were far more adept at the task of arguing claims of legal philosophy than he was) the working notes are striking for how they frequently see Fuller state his intuitions in much bolder terms. The result is not just a more daring authorial voice. It is also, often, the expression of ideas that either never made it into the published version at all, or which do so only in an implicit way. Had some of these points found inclusion in the published record, especially those which go more deeply into the connection between the generality of law and the status possessed by the legal subject, it is possible that we might have spent much of the last half century debating Fuller’s jurisprudential contribution in somewhat different terms than we have.

My aim in this chapter, therefore, is not only to set out what the ‘Reply to Critics’ does, but also what it could have done, with my suggestions here drawn from how Fuller expressed his intuitions in his working notes and other writings salient to the points at issue. Accordingly, I begin in section I with an account of the key claims of the ‘Reply’ as published. The strategy through which Fuller develops those claims is noteworthy in its own right. That is, Fuller does not reply to his critics by defending his claims outright, but rather responds by diagnosing the commitments, tacit assumptions and blind spots that might explain the basis of his critics’ objections to those claims. Only then does he move to clarify the content of his own position, but again, while always keeping the framework of the debate in view. As a strategy for replying, this entirely makes sense: it is only through exposing the commitments, assumptions and apparent blind spots within his critics’ position that Fuller can explain why his own jurisprudential concerns seem to so consistently fall through the gaps of a debate about the connections between law and morality. It is as if, 11 years after his intervention as Hart’s respondent in the 1958 Harvard Law Review, Fuller finally realised that he had to reclaim the agenda; to expose Hart’s terms as riddled with assumptions and ambitions that, independently and severally, invite contestation.

The ‘Reply’ pursues this objective by elaborating responses to four broad inquiries. The first, under the subheading ‘The Structure of Analytical Legal Positivism’,14 sees Fuller seek to diagnose what it is about the starting points of the positivist creed that prevents its adherents from either seeing, or simply taking seriously, the concerns and questions of his own jurisprudential agenda. This diagnosis then forms the background for the central analysis of the ‘Reply’ that Fuller develops by way of response to two questions: first, ‘Is Some Minimum Respect for the Principles of Legality Essential to the Existence of a Legal System?’;15 and second, ‘Do the Principles of Legality Constitute an “Internal Morality of Law”?’.16 The ‘Reply’ then concludes with a collection of comments, ‘Some Implications of the Debate’,17 on matters salient, beyond these key points of impasse, to the close of an exchange that had come to span more than a decade.

The primary focus of my analysis in the pages to follow is on the response that Fuller develops to his stated question of ‘Do the Principles of Legality Constitute an “Internal Morality of Law”?’, as it this analysis that sees him answer his critics’ contention that the principles of his so-called internal morality of law merely serve the lawgiver’s efficacy by introducing the distinction between law and managerial direction. Fuller’s decision to respond to the efficacy charge by reference to this distinction is significant for a number of reasons. First, it marks an explicit return to the form of law, and how and why that form is to be distinguished from other modes of social ordering, as a means of exposing the difference between the basic commitments of positivist jurisprudence and his own. Second, through the process of elaborating the content of the distinction, the analysis sees Fuller go deeper into the connections between his own jurisprudential intuitions at the same time as it sees him refine his critique of positivism.

Precisely what goes on in that analysis needs to be carefully mapped. Certainly, ideas already expressed in the first edition of The Morality of Law about the absence of any relationship of reciprocity between lawgiver and legal subject in the positivist account remain central, as do associated intuitions about the failure of positivism to make any meaningful provision for the withdrawal of lawgiving power in the event of its abuse. But the nub of Fuller’s argument in the ‘Reply’, even if ostensibly framed around the reciprocity point, goes to a deeper point that might be summarised as follows. The only way that an efficacy reading of the value served by observance of the internal morality of law can make sense is if it is attached to a top-down, essentially coercive conception of law in which the role of the subject is merely to serve the superior’s ends. This, Fuller argues, is precisely what the positivist concept of law boils down to, and this is equally why, at its essence, it is a conception of managerial direction rather than law.

The way that Fuller elaborates this argument, through an intricate analysis of applicability of his eight principles of lawgiving to the form of law as opposed to that of managerial direction, sees him move away from the broad frame of a ‘unidirectional versus interactional’ contest between competing conceptions of law towards a much more subtle terrain in which the implications of certain core commitments of positivism are problematised. I set out how this more subtle terrain emerges in the ‘Reply’ in section I. But I reserve the majority of my remarks about what we might learn about Fuller’s jurisprudence from this analysis for my exploration in section II of the working notes, because it is here that we see Fuller take these points to a still deeper level than what is recorded in the published piece. That is, what is initially framed as an argument about the relationship of reciprocity between lawgiver and legal subject that is constituted and sustained by law’s distinctive formal features becomes an argument about the conditions, statuses, modes of responsibility and modes of treatment that underlie that relationship of reciprocity and make it possible. Thus, rather than speak in broad terms about what reciprocity demands, or how it limits lawgiving authority, and, indeed, how the top-down orientation of the positivist conception of law misses all of this, we instead see Fuller inquire specifically into what the principles of generality or congruence require, or what they presuppose, and how, in turn, they make sense of each other as fundamental features of law.

In short, the working notes help us to see how Fuller’s jurisprudence fundamentally rests on the idea that the distinctive connections between form and agency are what distinguish law from other modes of ordering, as well as impose limits on the scope and possibilities of lawgiving authority. This is what enables Fuller in the ‘Reply to Critics’ to take his challenge to positivism to a deeper level. Here, what began as a debate between conceptions of law on the connections between law and morality becomes a more nuanced conversation (or at least provides us with the seeds of such a conversation) about the implications of positivism’s commitment to the idea that generality is the fundamental feature of law. Here, crucially, what Fuller identifies is not that the concerns of his own jurisprudence are foreign to positivism, and thus necessarily outside its sphere of concern, but rather that much fits within the implications of positivism’s stated commitments. My task in section II, therefore, is to explore whether the fruits taken from a journey into the archive might cast the questions in dispute in the Hart-Fuller debate in a new, or at least a more nuanced, light.

I then turn in section III to reflect on the extent to which the ‘Reply’ succeeds in reclaiming the stated ambitions of Fuller’s jurisprudence and restoring them to the agenda of legal philosophy as it then stood, before concluding the chapter with a brief restatement of Fuller’s core claims and their interconnection. The summary I offer here is in much the same terms as that which I provided by way of an introduction to Fuller’s core claims in chapter one. But, restated at the close of my exposition of Fuller’s primary jurisprudential texts, that summary takes on a new significance for how it is now capable of carrying the meaning of what has been offered in this and the preceding three chapters.

I Mapping the ‘Reply to Critics’

Fuller begins his ‘Reply’ by explaining how, as critical reviews of The Morality of Law came in, he ‘became increasingly aware of the extent to which the debate did indeed depend on “starting points”—not on what the disputants said, but on what they considered it unnecessary to say, not on articulated principles but on tacit assumptions’.18 This gesture to ‘starting points’ is a direct reference to Hart’s remark, at the beginning of his review of Fuller’s book, that he was ‘haunted by the fear that our starting-points and interests in jurisprudence are so different that the author and I are fated never to understand each other’s works’.19 Though Fuller tells us that he deliberated at length about whether he should go in for one more round of debate (‘[o]ne has the feeling that at some point such an exchange must terminate’),20 the ‘Reply’ stands as proof that he did not wish that debate to draw to a close in the face of the kind of foundational miscommunication to which Hart alludes. And so, Fuller declares, a final round is indeed needed ‘to bring these tacit assumptions to more adequate expression than either side has so far been able to do’.21

A ‘The Structure of Analytical Legal Positivism’

The first section of his ‘Reply’ records Fuller’s attempt to set out his own understanding of ‘the basic intellectual commitments underlying analytical legal positivism’,22 with the term ‘analytical’ meant here to refer to ‘an intellectual mood that finds more satisfaction in taking things apart than in seeing how they fit and function together’.23 The basic theme of his critique is therefore immediately clear: what’s wrong with positivism is its neglect of how law actually works; ‘the elements of tacit interrelatedness that infuse—though always somewhat imperfectly—what we call, by no accident, a legal system’.

This neglect, Fuller argues, can be traced to the five basic assumptions, or ‘starting points’, that shape the positivist creed: the way it understands law as a ‘oneway projection of authority, emanating from an authorized source and imposing itself on the citizen’;24 the absence within its commitments of any meaningful limit to lawgiving authority;25 the equal absence of any sense of the distinctiveness of the lawgiver’s role; and that this role might require the discharge of a distinctive role morality;26 and a commitment to the idea that ‘clear thinking is impossible unless we effect a neat separation between the purposive effort that goes into the making of law and the law that in fact emerges from that effort’.27

Fuller is clear that the first four of these assumptions are interdependent: the positivist ‘sees the law at the point of its dispatch by the lawgiver and again at the point of its impact on the legal subject’, and so in failing to see that ‘the creation of an effective interaction between them is an essential ingredient of the law itself’ recognises in the functioning of a legal system ‘nothing that can truly be called a social dimension’.28 But it is the fifth starting point that Fuller regards as the ‘most central article of faith in the credo of positivism’: its apparent intellectual commitment to the idea that ‘clear thinking is impossible unless we effect a neat separation between the purposive effort that goes into the making of law and the law that in fact emerges from that effort’.

Two culprits are identified as responsible for this theoretical approach: the influence of ordinary language philosophy (Fuller here reacting to his critics’ apparent hysteria in the face of his willingness to apply the term ‘law’ to the internal regulations of a range of associational forms)29 and the influence, on Hart’s positivism in particular, of utilitarian philosophy. Fuller’s elaboration of this last point speaks directly to the critique that has been central to his own jurisprudence since the introduction of his eunomics project; namely, that utilitarian philosophy ‘encourages us in the intellectually lazy notion that means are a matter of mere expediency and that nothing of general significance can be said about them’.30 Later in the ‘Reply’, however, Fuller takes this point further when he suggests that what is missing in Hart’s apparent support for the utilitarians’ belief that principles of lawgiving akin to Fuller’s eight should be valued only ‘in so far as they contribute to human happiness and other substantive aims of the law’31 is any acknowledgment of how that very position presupposes the kind of ‘stability of interactional processes within a society’ that is most typically ‘furnished by a conscientiously administered legal system’.32

But at this early juncture, setting the stage for the arguments of his reply, Fuller’s diagnosis of the five starting points of positivism is intended to leave us with this simple message. Legal positivism presents us with a unidirectional conception of law that imposes itself on the legal subject with no apparent limits to its capacity or authority to do so. This in turn explains why such a legal philosophy would be equally unconcerned with the distinctiveness, or the demands, of the lawgiving role, and, indeed, with the means of law more generally.

B ‘Is Some Minimum Respect for the Principles of Legality Essential to the Existence of a Legal System?’

These observations form the background for Fuller’s examination of the enduring contest between him and his critics on whether some notion of law’s purpose ought to find a place within an account of its nature. The context here is Hart’s remark, at the close of his review of The Morality of Law, that the ‘virtues and vices’ of the book both spring from how Fuller ‘has all his life been in love with the notion of purpose’.33 Fuller thus takes this apparent impasse about the place of notions of purpose within an account of law as a launching point for exploring the question of whether some minimum respect for the principles of legality is essential to the existence of a legal system.

It seems at first as though Fuller is going to move his reply on this point directly into the territory of debates about the necessary conditions for law to exist; something akin to what he offers in his 1958 reply to Hart, as well as through the tale of Rex in The Morality of Law. This, at least, is what seems suggested in how he begins his analysis by noting that he and his critics appear to share the view that the declaration that law exists is contingent, in some important sense, on that putative law conforming to ‘certain standards that will enable it to function meaningfully in men’s lives’, with the standards in view being those he enumerates through his model of the internal morality of law.34 But his desire to respond to Hart on the matter of purpose sees Fuller instead turn to the wider question of the value associated with observance of the internal morality of law. Here he is again simply following Hart’s lead. That is, as will be recalled from chapter four, Hart’s review of The Morality of Law does not engage in any significant way with Fuller’s claim that the existence of law is contingent on observance of the principles of the internal morality of law; his attention, rather, is directed primarily to Fuller’s claim that these principles are moral in character. What we see in the ‘Reply’, therefore, is Fuller bringing these elements together to suggest that what divides him and his critics is the question of ‘to what end is law being so defined that it cannot exist without some minimum respect for the principles of legality’.35 The result is that the existence question joins his response to Hart on the purpose point to become an analysis of why efficacy is an inadequate explanation of the value of the principles of the internal morality of law.

C ‘Do the Principles of Legality Constitute an “Internal Morality of Law”?’