Three Conversations


Three Conversations

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

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

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

It is thus fitting to close this book by exploring what can be learned from the project of reclaiming and resituating Fuller for the kinds of conversations we might now have about the animating themes of his jurisprudence; specifically how that jurisprudence engages with, interrupts, or gives content to the ideas of morality, instrumentalism and legality.

I Morality

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

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

The order of priority here is instructive.3 Fuller’s jurisprudence was always much more squarely concerned with the first and second of these connections between law and morality than with the third. Indeed, any turn that he did make towards the third was inseparable from the claims he advanced about the others. That is, at one level, Fuller was interested to explore the extent to which the moral quality of legal ends seemed to be conditioned, in practice, by the moral dimensions of law’s distinctive form. We see this point expressed not only by reference to the pathological case in his discussion of Nazi law,4 but also in his reply to Cohen and Dworkin, where he speaks of how it is reasonable to suppose that the ‘built-in’ respect for human dignity, inherent to the principles of the internal morality of law, ‘will tend to carry over into the substantive ends of law’.5 At another level, attaching to his thinking about how the moral foundations of a legal order lie in the acceptance conveyed by the legal subject toward that order, Fuller’s working notes for Anatomy of the Law also speak of how this acceptance ‘may be destroyed if there is no integrity in the manner of its internal construction and administration’ or ‘if the ends sought by the legal system are sufficiently odious to the population as a whole’.6

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

As we move forward with Fuller, therefore, we might think about some of the reclaimed ways of conversing about the connections between law and morality that I have sketched at different points in the foregoing chapters. For instance, and to recall the analysis I undertook in chapter six, those who defend the position of exclusive positivism and its commitment to the idea that moral criteria do not figure in the determination of what law is might consider whether the apparently robust conception of the legal subject as an agent that is implicit in Raz’s positivist account of authority complicates that commitment in any way; or, to gesture to an argument I have made elsewhere, conversations about the connections between law and morality carried primarily through a conversation about the connections between the form of law and human agency might further explore the instances of apparent correspondence between legal substance that seeks to oppress or to destroy the subject’s agency and debasement to the formal features of law.7 Indeed, in that vein, fresh conversations might still be developed out of Fuller’s intuition that, as a matter of conceptual coherence, it is not possible to accept the idea that the institution of slavery is compatible with the institution of law.8

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

II Instrumentalism

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

One of my aims in this book has thus been to dissolve the unhelpful polarity of this ‘morality versus efficacy’ conversation, or at least as it applies to a proper reading of Fuller’s jurisprudence. But this does not mean that all that is to be said about Fuller’s sense of when and how it is appropriate to adopt an instrumental understanding of law has been said. It is fruitful to explore this question further, not least because it is increasingly the case that any theoretical conversation about law, whether commenced in the name of analytic legal philosophy, or in service of the agenda of legal pragmatism, the economic analysis of law, or some other project, seems to commence from the uncontested assumption that law’s basic nature is that of an instrument. Can anything further be taken from a reclaimed Fuller to assist those who seek to unsettle, or at least to add nuance, to this increasingly colonised theoretical space?

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

For positivists, these conditions are undoubtedly accepted as practically important, but their consideration as a subject of jurisprudential inquiry is consistently regarded as external, rather than internal, to conversations we might have about the basic truths of the nature of law. Fuller identified this tendency very clearly in Hart’s positivism, where ‘the problem of achieving and maintaining legality’ seemed worthy of ‘no more than casual and passing consideration’.10 He might equally have identified it in Raz’s concern to show that whatever can be said about the nature of law’s authority is still compatible with the sources thesis and its associated commitment to a conception of law as an instrument.11 Seeking, like Raz, to defend the core commitments of legal positivism but while developing the project in different directions than did Hart, Scott Shapiro’s recent work equally assumes the basic truth of law’s status as an instrument in its suggestion that it might be fruitful to turn our jurisprudential attention to the task of compiling a ‘user manual’ to guide our understanding as well as our use of that instrument.12

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