BOOK REVIEW
THE MORALITY OF LAW
By Lon L. Fuller
New Haven and London: Yale University Press, 1964.
Pp. viii, 202…. $5.00.
This little volume is an expanded version of lectures given at the
Yale Law School by Professor Fuller in 1963. Professor Fuller is
Carter Professor of Jurisprudence at Harvard, and one of the leading
exponents of non-Thomist natural law. Among his previous contribu-
tions to the field has been The Problems of Jurisprudence, a selec-
tion of readings supplemented by his own comments, which includes
some imaginary cases, ingeniously contrived by him, illustrating
widely divergent judicial approaches to the solution of legal problems.
More recently, he has been stimulated to expound his views as a kind
of reaction to the new analytical positivism of the linguistic legal
philosopher, H. L. A. Hart. Thus, the famous “Hart-Fuller Debate”
in 1958 ‘ comprised Hart’s statement of his own position on the rela-
tion between law and morality, and Fuller’s rebuttal thereof.
The present volume seems to be, at least in part, a similar effort to
counter some of the views expressed by Hart in his book, The Concept
of laW.2 In this sense, The Morality of Law may be considered a kind
of continuation of the Hart-Fuller debate, shifted to slightly different
ground. However, the reader who seeks in this book the long-awaited
systematic exposition of Professor Fuller’s philosophical views will be
disappointed. This is not to say that the book is not of great interest,
for in fact there are numerous sections of quite penetrating thought.
It is merely that the discursive, chatty lecture method of exposition
used in the book lends itself to digression, and sometimes the thread of
the argument appears difficult to follow, especially as the four chap-
ters into which the book is divided are really separate essays, and the
connection between them is at times tenuous. But the style is always
stimulating, the book is eminently readable, and the chief pleasure to
1 H. L. A. Hart, Positivism and the Separation of Law and Morals (1958) 71
Harv. L. Rev. 593; Lon L. Fuller: Positivism and Fidelity to Law. A Reply to
Professor Hart, (1958) 71 Harv. L. Rev. 630.
2 Oxford University Press, 1961.
No. 4]
BOOK REVIEW
be derived from it, as in the case of almost any significant work, is the
joy of following the workings of an intelligent mind.
In his first chapter, which is not concerned with the law at all,
Fuller defines his ethical philosophy in terms of a dichotomy between
the morality of duty (“Thou shalt”) and of aspiration. He perceives
a spectrum of morality, with duties at the bottom, aspirations at the
top, and an invisible pointer marking the shifting, fuzzy boundary
between them. Fuller introduces here his analogy between morality
and economics, which recurs later in the book and which appears to be
conditioned by his own political and economic theories.
Chapter II is a statement of Professor Fuller’s views on the inter-
nal or structural morality of law, without which it cannot exist. He
points out several ways in which a legal system may founder: failure
to publicize its rules, abusive use of retroactive legislation, failure to
make rules intelligible, enactment of contradictory rules, rules impos-
sible of performance, rules changed so frequently that action in
accordance with them cannot be oriented, and failure of rules as for-
mulated to correspond to their enforcement and interpretation.
To Professor Fuller, an entire legal system may cease to deserve
to be characterized as such if it fails too extensively in any of these
particulars. He observes that there can be no rational ground for
asserting that a man can have an obligation to obey a rule that does
not yet exist, or is kept secret from him, or cannot be understood, or
is contradicted by another rule, or demands the impossible, or changes
every minute. It is on grounds such as these that Fuller would appa-
rently have liked to see the post-war German courts handle the
so-called “informer” cases, by saying that the law under which
they acted was not law, rather than by reference to another, higher
law. The interesting thing about all this is, of course, that if this is
what Fuller means by natural law, then he and Hart would seem to
have little to quarrel about. Hart’s major focus is naturally analytical
and not concerned with value as such; but he is very much aware that
a legal system has certain minimum requirements. If Professor Fuller
were a linguistic positivist, he could have incorporated his several
criteria into his definition of what a legal system is, and much of
the acrimony of the discussion might evaporate.
Chapter M of the book borrows its title from Hart, and is headed
“The Concept of Law”. Here Fuller defines law as the enterprise of
subjecting human conduct to the governance of rules” (Italics mine).
His critique of a static, analytical approach to law, particularly of
Kelsen’s hierarchical method, is well-reasoned, and he emphatically
rejects power as the foundation of law. His example of a military
system is particularly interesting, in relation to the attempted use of
McGILL LAW JOURNAL
[Vol. 10
the hierarchy of authority as the distinguishing feature of a legal
system. In a subsequent section, Fuller compares law with science,
and shows how in the cases of both law and science, the key questions
must remain unanswered in any philosophy that abstracts from the
nature of the activity: What should the policy of government be
towards science (or law)? How can scientific (legal) research be
most effectively introduced and cultivated in newly emerging nations?
What precisely is the cost society pays directly and indirectly, when
the responsibilities of scientific (legal) morality are ignored or loosely
observed? In his approach to law as an enterprise, Professor Fuller
.seems to come very close to Myres McDougal’s definition of law as a
process of authoritative decision; and in his emphasis on values and
the determination of answers to serious human problems, he is very
much akin to McDougal whose concern, although stated in a complex,
behavioural science jargon, is for values which he (McDougal) epito-
mizes in the phrase human dignity. One reflection that occurs to me
is that the leaders of the contemporary jurisprudential schools may
have much more in common than they themselves realize, although
their vocabularies may vary and their concern and emphasis be in
different sectors. Certainly McDougal could not but agree with Fuller’s
statement (at p. 145) that law must be viewed “as purposeful enter-
prise, dependent for its success on the energy, insight, intelligence,
and conscientiousness of those who conduct it, and fated, because of
this dependence, to fall always somewhat short of a full attainment of
its goals”. As Fuller says, no doubt Hart does prefer to treat law as
“a manifested fact of social authority or power, to be studied for
what it is and does, and not for what it is trying to do or become”,
although Hart himself might use different words to describe his own
views. But it seems to me that Fuller’s criticism of Hart is at times
obscured by a mere difference in emphasis that fails to see the forest
for the trees.
The book’s final chapter attempts to deal with the substantive
morality of law; here Fuller touches on the neutrality of the law’s in-
ternal morality towards substantive aims, legality as a condition of
efficiency, legality and justice, the limits of effective legal action, the
problem of institutional design, and finally, the minimum content of a
substantive natural law. Fuller notes here that Hart, in his Concept
of Law, presents a minimum content of natural law, starting with the
single objective of human survival, from which a comprehensive set
of rules may be derived by purposive implication; and then denies the
validity of this theory. For Fuller, communication between human
beings would be the fundamental principle, rather than mere survival,
and as a necessary condition for survival. Here one senses that Fuller
may be on the brink of some new insight, but unfortunately the book
BOOK REVIEW
No. 4]
closes without relating the objective of communication to linguistic
analysis, the new behavioural science of general semantics, or the use
of symbolic logic in legal theory, all areas of great potential develop-
ment. Fuller’s last paragraphs state the objective of communication as
the central principle of substantive natural law in what might be term-
ed an existentialist direction, perhaps only one step removed from
Martin Buber’s formulation of the I – Thou relationship. On this
note, the last chapter ends.
The book contains an appendix, “The Problem of the Grudge
Informer”, one of Fuller’s imaginary cases or problems, this one based
on a very real situation which existed in Nazi Germany at the end of
the World War II .
The Morality of Law should be read by all those concerned with
the problems of jurisprudence. It will stimulate and provide pleasure,
although it may at times digress to the point of apparent irrelevancy.
It may well leave the reader in a mood of expectation, hoping for the
advent of Fuller’s magnum opus, a definitive exposition of his own
modern philosophy of natural law.
Perry Meyer
of the Bar of Montreal
Associate Professor of Law, McGill University
3 See Puttfarken’s Case, discussed in an article by Gustav Radbruch in the
Siiddeutsche Juristen-Zeitung, Vol. 1, p. 105, August 1946; another German
“informer” case is discussed in (1951) 64 Harv. L.. Rev. 1005.
CASE and COMMENT
