Anti-Positivism - Fuller's Theory of 'Procedural Morality'

Clarity. Intelligibility. Promulgation, these are a few of Fuller's favourite things!
Clarity. Intelligibility. Promulgation, these are a few of Fuller's favourite things!

Fuller suggests procedural morality, not substantive morality.

  • Lon Fuller was unhappy with Hart's 'separability thesis' which states that there is no necessary connection between law and morality.
  • He argued that there is such a connection, but that the necessary morality is procedural (also referred to as internal) and not substantive.
  • This is to say that what is always present in law is the morality of how the law is implemented (its procedural element), as opposed to the morality of what the law actually is (its substance).
  • Fuller argued that if his 8 procedural requirements of law are not met then there is no legal system at all. Therefore, he claimed, every legal system has this aspect of morality because without it there would be no basis to call it a legal system at all.
  • The main criticism of Fuller's theory is that whether something is done well or not has no bearing on whether that something is moral or immoral. In order to successfully burgle one must also follow procedural requirements, but that does not mean every burglary has an element of morality. Fuller provides no counter-argument to this objection.

Fuller's (Eight) Ten Commandments of Procedural Law.
Fuller's (Eight) Ten Commandments of Procedural Law.

Fuller's 8 Moral Virtues of Proper Legal Procedure - 'The Internal Morality of Law'

  1. General Rules - It operates through general, predictable norms and not on a case-by-case basis.
  2. Known - Its norms are promulgated to the people whose conduct is to be authoritatively assessed by reference to them.
  3. Prospective - Its norms are prospective rather than retrospective - rules only apply to events that happened after those rules come into force, never before.
  4. Clear - The authoritative formulations of its norms are understandable at the very least by people with juristic experience, rather than being opaquely unintelligible to all.
  5. Non-Contradictory - Its norms are logically consistent with one another, and the obligations imposed by those norms can be jointly fulfilled.
  6. Realistic - Its norms do not require things that are starkly beyond the capabilities of the peoples who are subject to them.
  7. Stable - The contents of its norms, instead of being transformed sweepingly and very frequently, remain mostly unchanged for periods of time long enough to induce familiarity, and
  8. Consistent with the Texts in Practice - Its norms are generally effectuated in accordance with what they prescribe, so that the formulations of the norms (the laws on the books) are congruent with the ways in which they are implemented (the laws in practice).

Failing to accommodate these proper legal procedures is fatal to the legal system:

"A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all' (Fuller, Morality of Law, p39).

Hart's Reply to Fuller

  • Hart responds to Fuller by suggesting that there are all sorts of activities with a clear purpose.
  • Each of these have a code or criteria that must be followed in order to see success.
  • All that these codes speak to is how efficiently something is being done, and there is no question of morality in efficiency since the act that is being done efficiently can just as well be evil as it can be good.
  • Hart gives the example of poisoning. There are many aspects one must think of in order to be a 'good' poisoner but good here means efficient or successful, not morally good.
  • One must make sure the poison he uses is lethal but will not cause the intended victim to vomit, one must also avoid poisons which are too colourful, oddly shaped or large as that would attract attention.
  • It appears therefore that these procedural aspects have no connection with morality as they simply define how efficient the act will be, and efficiency can help good or evil - it depends on the act.

Jeremy Waldron's Recent Contribution to the Debate

  • Waldron suggests that Hart was not fully correct in his response to Fuller.
  • This is because Fuller's principles are orientated towards liberty, in the sense that a ruler who tries to keep his laws clear and realistic is more likely to make better laws in the future because of it. That is, because he is making 'respectful room' in his decisions for his citizens, he is likely to have more respect for them in the future:

"[Hart's] poisoning analogy assumes that the principles are orientated to efficiency only for the purposes of the ruler or the poisoner; but the principles of legality... have the purpose not of advancing the ruler's own aims but in making room in the ruler's calculations - respectful room - for the purposes of the individuals who live under his power." (Hart and the Principles of Legality, p76 in Kramer et al The Legacy of HLA Hart (Oxford 2008)).

  • This is a weak argument, however, since a ruler may just as well say that he is already doing enough for his citizens in respecting these principles, and conclude that he can worsen (or omit to better) the content of the laws that affect them because of this. It all depends on the type of ruler at hand.
  • Lastly, this argument proceeds from the position that Fuller's very theory is exerting pressure on rulers to abide by his procedural virtues, forcing or influencing them to consider the best way to be a lawmaker and give a minimal amount of respect to its citizens. This is clearly not the case, Fuller provides no reason to a ruler for why he should give citizens minimal respect, nor encourage them to do more after that.

Lon Luvois Fuller (1902-1978)
Lon Luvois Fuller (1902-1978)

Fuller's Response to Hart

  • Fuller responds to Hart by simply explaining that he cannot shake the feeling that coherence and goodness have a closer link than coherence and evil, but sadly there is no actual for his saying so:

"... Professor Hart seems to assume that evil aims may have as much coherence and inner logic as good ones. I, for one, refuse to accept that assumption... I Shall have to rest on the assertion of a belief that may seem naive, namely, that coherence and goodness have more affinity than coherence and evil." Lon Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart' 1958 71 Harvard Law Review 630-72

  • Unfortunately, many evil regimes - such as that of Nazi Germany - saw a great degree of procedural efficiency (especially clarity) in their legal systems. To say that because of this those regimes were to any extent moral seems to skew the very meaning of the word, and the affinity between coherence and good does not seem any stronger than it is to evil.
  • After all, it is possible that if the vile laws of Nazi Germany were so poorly written so that no one understood them, and then so poorly promulgated so nobody knew of them, the legal system would have been more morally good (or less morally corrupt) as then at least it did not cause as much wrongdoing than if it were efficient in those respects.

Overall, despite being an interesting idea, it does not seem that procedural morality can be called morality at all, and that this theory does not provide much of an attack on the separability thesis that morality is not a necessary component of law.
Overall, despite being an interesting idea, it does not seem that procedural morality can be called morality at all, and that this theory does not provide much of an attack on the separability thesis that morality is not a necessary component of law.

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