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Volume 11 Number 2 Volume 11, Spring 1965, Number 2 Article 3

The Natural Law Philosophy of Lon L. Fuller The Natural Law Philosophy of Lon L. Fuller

Charles L. Palms, C.S.P.

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THE NATURAL LAWPHILOSOPHY OFLON L. FULLER

CHARLES L. PALMS, C.S.P.*t

M UCH OF THE NEW EMPHASIS on natural law can be traced to thefailure of positivism, the prevailing legal philosophy, to give

meaningful answers to the problems of life in society; also to the feargenerated by the dreadful experiences of "lawless law" enacted bytotalitarian dictatorships like Adolph Hitler's.

One contemporary legal philosopher who has been vitally aware ofthe failure of legal positivism and who was articulately urging a returnto the natural law even before the full tragedy of Hitler had run itscourse, is the present Carter Professor of General Jurisprudence at theHarvard Law School, Lon Luvois Fuller.

Professor Fuller was born at Hereford, Texas, in 1902. He receivedhis Bachelor of Arts degree from Stanford University in 1924. Afteracquiring his Doctor of Laws degree from Stanford in 1926, ProfessorFuller taught at the University of Oregon Law School (1926-1928), theUniversity of Illinois College of Law (1928-1931) and Duke UniversityLaw School (1931-1939). Since 1940, Professor Fuller has been asso-

* B.S.S., Georgetown University; LL.B., Harvard Law School; M.A., St. Paul'sCollege; Associate Editor, THE CATHOLIC WORLD.

t Just as the law is divided into substance and procedure, so the natural lawphilosophy of Lon L. Fuller conveniently divides itself into a substantive aspectand a procedural one. Fuller's natural law philosophy is not complete unlessit is presented under both aspects. Under the substantive rubric, Fuller probesthe meaning of law as it relates to the proper ends to be sought through legalrules. In dealing with the procedural aspect, Fuller studies the necessary pre-conditions for good law, such as promulgation, clarity, proper administrationand enforcement, etc.

It is difficult for the student of legal theory to find a systematic presentationof Professor Fuller's legal philosophy. Much of Fuller's legal writing is to befound in occasional law review articles and book reviews. Until the presentarticle was written, no comprehensive presentation of Fuller's natural law ap-roach to the substantive aspect of law existed. Professor Fuller himself has recentlyprovided us with an organized presentation of the procedural aspect, which heterms the "internal morality of law" (The Morality of Law, New Haven: YaleUniversity Press, 1964). The present article, combined with Fuller's recent book,makes it possible for the student of legal theory to examine the natural lawthinking of one of America's foremost legal philosophers.

IWard, The 'Natural Law' Rebound, 21 REV. OF POLITICS 119-20 (1959).

FULLER

ciated with the Harvard Law School. Heis also on the Editorial Board of theNatural Law Forum. Father Leo R. Ward,C.S.C., Professor of Philosophy at the Uni-versity of Notre Dame, has referred to oneof Professor Fuller's books as "one of thesimplest and most modest and yet mostdeceptively powerful affirmations of natu-ral law in our time..... .

The present study of Fuller's naturallaw philosophy consists of two basic parts:the first presents Fuller's critical expositionof the inadequacies of legal positivism;the second sets forth Fuller's own naturallaw views.

Critique of Legal PositivismIn 1939 Professor Fuller wrote, in re-

viewing Hall's Readings in Jurisprudence:

Often what an author "stands for" is muchless important than how he got to wherehe is standing; the negative side of a man'swork, his critique of opposing views, isoften-perhaps usually-more importantthan his affirmations. 4

The next year Professor Fuller presentedthe negative side of his own work, alucid critique of the influence of positivisttheories on American law.5 Tracing thehistory of positivist theories from Englishphilosopher Thomas Hobbes through theso-called American Legal Realists and theVienna School of Hans Kelsen, Fuller ar-gues that legal positivism is intellectuallyunsound and that its teachings have dis-astrous practical results for society.

English Positivism

Legal positivism developed in England

2 FULLER, THE LAW IN QUEST OF ITSELF (1940)." Ward, supra note 1, at 116.4 Fuller, Book Review, 87 U. PA. L. REV. 625-26(1939).S FULLER, op. cit. supra note 2.

as a result of the law's quest for an exclu-sive hegemony of its own where it couldbe free from the complications of ethicsand philosophy., Hobbes believed that theprime objective of law was to achievepeace and order in society. Ethics and phi-losophy complicated things by supplyingreasons for ignoring or disobeying the law.Because the interests of men tended toconflict, and because resort to reason wasunable to bring about the requisite peaceand order in society, sovereign authorityhad to be the dominant influence in so-ciety. This authority resided in the king orprotector, and the rules of the sovereignfor settling disputes were the law. Accord-ing to Hobbes' theory, the law was su-preme and men had to blindly obey re-gardless of personal belief.'.

Hobbes, however, did not entirely aban-don reason. Ideally, the sovereign was tofollow it and enact reasonable legislation.But if the sovereign were unreasonable,and enacted an unjust law, the reasonableman would be expected to obey the lawin the interests of peace and order." Thus,public order would replace justice as theultimate criterion of law.

About a century later, John Austinagreed with Hobbes that the starting pointfor law could not be that which is rightor just. This would be "cut-throat science"leading to social upheaval.0 It was the sov-ereign that gave coherence to the legal sys-tem and offered a clear-cut definition oflaw. Therefore, Austin defined law as thecommand of the state. In Austin's opinion,however, Hobbes had oversimplified the

6 Id. at 16-17.7 Id. at 19-25, 86-87.3 Ibid.. Fuller, American Lggal Philosophy at Mid-Century, 6 J. LEGAL ED. 457, 459-60 (1954).

nature of the sovereign. Austin wanted toidentify the sovereign precisely. Once hehad located the sovereign, he felt that hewould have the essence of law and therebypinpoint the unifying force in law.

Austin found it difficult to locate thesovereign, however, because the system ofchecks and balances had complicated thestructure of the state. How to explain lawlaid down by judges independent of theking? To Hobbes, the judge was the agentof the sovereign, and the ruler adopted thejudge's decision as his own. Austin couldnot accept this answer; it was more meta-phor than actual fact. Austin, therefore,redefined the sovereign as that person orgroup of persons which society was in thehabit of obeying. Thus, Austin rested thefoundations of the legal order on habit orcustom.1 0

Professor Fuller notes that instead ofsolving the theoretical problems raised byHobbes' analysis of the law, Austin's de-velopment raises more embarrassing ques-tions. Suppose, the bulk of society ceasesto render obedience to law - what hap-pens to the sovereign? Suppose certaincommands of the sovereign are occasion-ally ignored - is the ignored commandstill law? Suppose the sovereign issues con-tradictory commands - which one is thelaw? Suppose the sovereign declares thathis power is legally limited, for example,by a two-thirds vote of the populace -isthe real sovereign power in the people?Finally, the most difficult question of all- suppose there -are gaps in the law?Doesn't every gap represent a possiblepoint of entry for ethics and philosophy,the very complication that Hobbes andAustin were trying to eliminate from the

- Ibid. FuLI.ER, Op. cit. supra note 2, at 26-31.

11 CATHOLIC LAWYER, SPRING 1965

law?11 One answer to this last question isthat there really are no gaps in the lawof the sovereign. What the sovereign hasnot forbidden he implicitly permits. Thisanswer is typical of the fantasy that Aus-tin's theory had led him into.

Professor Fuller points out that in de-fining the law in terms of its source (thesovereign) the positivists had one advan-tage. They could point to a statute or acommand and say, "This is law." Whatthe sovereign does is clear; it makes posi-tivism possible. But a question that re-mained unresolved in the theories ofHobbes and Austin was the precise identityof the sovereign. Fuller asks:

Is it (the sovereign) a real thing, a datumof nature existing apart from men's think-ing? Or is it merely a way of viewing theworld of possible legal phenomena? Is itan actuality, or a metaphor?12

Austin's writings were tinged with am-biguity on this point, 3 and anxious toclear up the problem, Austin's philosophi-cal heirs diverged along two lines: the"realists," and the "pure law" theorists.14

In America and Europe a school oflegal "realists," enamoured with the sci-entific method, abandoned the metaphori-cal sovereign of Hobbes and the ephemeralcustom of Austin, and rested the basis oflaw on a more concrete datum of nature.They sought law in external reality just asthe physicist seeks physical laws in the lab-oratory experiment. They wanted a laweasily identified and purified of ethics andmorality.15

In Vienna, another school developed.

11 FULLER, Op. cit. supra note 2, at 33-38.

1 Id. at 45.,Id. at 46.

14 Id. at 46-47.1 Id. at 46-47, 53.

FULLER

Hans Kelsen saw the futility of foundinglaw either in the sovereign or custom orother datum of nature. Kelsen believed inan ideal of pure law - purified of moralitywhich he called "wish law."' 6 Realizing,however, that this pure law could not be

founded in a datum of nature, he was boldenough to base his pure law on a simplemethodological assumption. 7

A merican Positivism

Professor Fuller, concerned principallywith legal positivism as it has affected theAmerican scene, concentrates his critiqueof legal positivism primarily on the Amer-ican legal realists. The more prominentmembers of this school include John Gray,Oliver Wendell Holmes, Joseph W. Bing-ham, Walter Wheeler Cook, Karl N.Llewellyn, Jerome Frank, W. UnderhillMoore and Edwin W. Patterson.

John Chipman Gray, in his Nature andSources of Law, abandoning Austin's cri-teria of custom, reverted to Hobbes' sover-eign, utilizing however, a more scientificapproach. He held that the sovereign wasnot a "determinate" group of persons buta shifting and anonymous body. The statewas an artificial unity; the real unifyingprinciple in the practice of an attorney wasthe judge, a flesh and blood reality. Herewas a concentration of power in a definitehuman being. The law was, therefore, de-fined as "the rules laid down by thecourts."' 6

Professor Fuller points out that Grayhas not yet answered all the questions.What about the "inconsiderate" sovereign- two judges at odds with each other whohand down contrary opinions? And sup-

1 Id. at 5.17 Id. at 47.1,1 Id. at 49.

pose that when a number of judges aresitting in judgment on a case that the"majority" lays down a decision. A major-ity is a corporate entity, and the flesh andblood reality that the "realists" had foundin the judge-made rule is lost. Gray endedup with the same problem that Austinnever solved - trying to identify the sov-ereign.' 9

Oliver Wendell Holmes had reservationsof his own about Gray's definition of lawas "the rules laid down by the court." Hesaw that what judges say is different fromwhat judges do. Holmes suggested that thedefinition of law should be the rules actedon by courts. This tendency of the realistsin the direction of increasing realism wastaken up by Bingham, Cook, Llewellynand Frank. Agreeing with Holmes, theydefined law in terms of the patterns ofjudicial behavior. Law was a generaliza-tion of the way judges act. Just as the be-havior of atoms was the concern of thephysicist, so the behavior of judges was theconcern of the lawyer. 2 Why, asks Profes-sor Fuller, stop at the behavior patterns ofjudges? What about the behavior of com-missioners, the sheriff and the sanitaryinspector? These officials make rules thataffect us- ones that they talk about andthen act on. Wouldn't every state officialhave to be included within the realist

schema?21

Professor Underhill Moore took the be-havioristic approach one step further. Heheld that law was determined by "institu-tional patterns of behavior.'" 2

2 BankingLaw, for example, would be determined

19 Ibid.201d. at 51-53.21 Id. at 53.22 Fuller, American Legal Realism, 82 U. PA. L.

REV. 429, 453 (1934).

in part by the observed behavior patternsof bank tellers. Professor Fuller objects toMoore's behavioristic approach. He pointsout that behavior is often the expression ofunderlying mental attitudes, and that ananalysis of these attitudes of mind involvesmore than the mere rationalization of be-havior.2 3 Moreover, regularities of behaviordo not always provide the norm of the pat-tern. Often it is the unusual case that pro-vides the norm because in such a case, themental attitude behind the pattern isshown. It is not the behavior itself, but thepurpose behind the behavior that is im-portant to the lawyer and judge. For judgesto simply search out and catalogue thehabits of bank tellers is to make the bankteller the judge instead of the man sittingon the bench.2 4

Finally, Professor Fuller asks, even ifbehavior patterns are the basis of law, howare judges to know these behavior patternsin deciding cases? Can these patterns beobserved and recorded?25 Is there someway that judges' attitudes and ideas aremoulded by a cultural matrix whose pat-terns are engraved by frequency? Howdoes a judge get to know all the patternsof activity of bank tellers?26 Fuller suggeststhat the realists' insistence on law as a be-havior pattern is reliance on an evengreater phantom than Austin's sovereign. 27

Kelsenianism

Hans Kelsen reacted against absurditiesimplicit in the theories of the legal realistsand their Austinian forebears. He believedin the positivist ideal- purifying the law

3 Id. at 455.'4 Id. at 457-58.

FULLER, op. cit. supra note 2, at 57._0 Fuller, supra note 22, at 459.

- FULLER, op. cit. supra note 2, at 59.


of the complications of ethics and moralityand of every non-legal influence. He couldnot accept, however, the realist approachto this ideal. The realists were trying toseparate the law that is (the "pure law"datum of nature) from the law that oughtto be (ethics and morality). Yet realismyielded no useful test of this law that is.Ultimately, every kind of behavior patternwas law. There was no standard behaviorthat was not law, i.e., mis-behavior. Be-sides, the study of behavior was not prop-erly legal study at all. 28

Going back to Austin, Kelsen saw thatthe English jurist was begging the wholequestion by assuming that the sovereignwas the essence of law. Kelsen asked, ifthe sovereign defines what is law, how dowe define and describe this sovereign ex-cept by a prior legal order that the sover-eign admittedly does not enact? 29

Isn't the very sovereign who defines alaw, brought into existence and delimitedby some pre-existing procedural law whichplaces the law-making power in the handsof the sovereign in the first place? Lawthen becomes law in virtue of rules thatare not "law.."30

Kelsen pushed his search for "pure law"to its logical conclusions. He saw that thesearch for the sovereign begun by Austinand continued by the realists ended in ab-surdity. Yet Kelsen believed that Austin'ssovereign served a good purpose. The sov-ereign prevented ethics and morality fromcomplicating the law. Thus, Kelsen re-tained the purpose for which the sovereignexisted and rejected the search for the sov-ereign in any flesh and blood reality.

Kelsen, therefore, carefully analyzed the

28 Id. at 66-69.29 Id. at 81.30 Fuller, supra note 9, at 460-61.

FULLER

purpose that the sovereign served, adoptedthe minimum of assumptions necessary toaccomplish this purpose and set these as-sumptions down in a sort of charter. Hislaw was not, therefore, founded in anyflesh and blood reality like the sovereign orjudicial behavior, but rather upon a fiction- a methodological premise. Kelsen whit-tled his starting point down to a minimumof metaphor. He made an honest fictionout of positivismA1

Instead of the sovereign of Austin orjudicial behavior patterns of the realists,Kelsen substituted the idea of the "basicnorm." Professor Fuller points out thatKelsen's theory of the "basic norm" admitsthat one must accept at least one pre-exist-ing rule governing the law-making processbefore the law-making process itself canget started. The basic norm, being ex-pressed in the singular, reduces this in-dispensable starting point to an ideal butfictitious minimum.3

2

Professor Fuller concludes that thoughrealism and Kelsenianism commence in op-posite directions, they terminate with muchin common. Both reject the unreal sover-eign of Austin. Both see that as soon asthe law tries to become "scientific" theroad forks sharply, one branch leading tothe realm of pure fact (the realists), theother leading to the realm of pure assump-tion (Kelsenianism). Each takes a differ-ent branch and is determined to follow itlogically and uncompromisingly. Eachreaps the results of its own limitation ofmethod .

3

Separation of "Is" and "Ought"

Professor Fuller is not interested in mak-

31 FULLER, op. cit. supra note 2, at 69-75.'1 Fuller, supra note 9, at 461.33 FULLER, op. cit. supra note 2, at 76.

ing a critique of legal positivism for criti-cism's sake. His critique of positivism ismore a by-product of his unrelenting questfor the underlying assumption of the lawand legal theories. He has called his questa rationalistic one. In pushing reason as faras he can, Fuller sees the purpose of legalphilosophy as a quest for those principlesthat make possible the successful liv-ing together of men.34 He sees the basic

task of the lawyer as a search for truth andjustice'--finding ways by which people canlive and work together successfully.-" Thetask of the lawyer goes on in a dynamicsocial order, and law must be able to re-spond to ever changing situations." Theideal is a just social order, and the lawmust always struggle to approach this ideal.

Professor Fuller sees the quest of thepositivist as stopping precariously short ofthe goal of law. Positivism does not seek topromote ethical or moral or social goalsfor society. A positivist is fearful of ethicsand morality which he believes confuse anddistort the law. Positivism claims to havediscovered the raw datum of law-thebasic fact of law beyond which ethical re-search is useless2 8

The first principle of positivism is this:law can be discovered, sought out, exam-ined and defined3 1 It is not the expressionof the non-existent ideal of justice. In anygiven rule of conduct there is a basic dis-tinction between what is in fact the law, andwhat that law ought to be. Therefore, the

31 Fuller, On Teaching Law, 3 STAN. L. REV. 35,46 (1950).35 Fuller, Objectives of Legal Education, 2 REC-ORD OF N.Y.C.B.A. 120, 121 (1947).36 FULLER, THE PROBLEMS OF JURISPRUDENCE

694 (1949).13 FULLER, op. cit. supra note 2, at 121.

:18 Id. at 109.: 9 Fuller, supra note 4, at 627.

task of the legal philosopher is to give theprinciples for making this distinction, andthe task of the lawyer is to find out whatthe law actually is.4

°

Austin's positivism meant something set(positus) by the human will of the sover-eign;4' therefore, the law that is was foundin the expressed will of the sovereign. Therealists, as stated previously, ultimately lo-cated the law that is in the behavior pat-terns of judges. Others who fall into thegeneral classification of positivists eitherhold that the law that is can be found insome observable phenomena, or hold withKelsen, that the law that is is not found inthe observable, but is located in a meth-odological premise.

Professor Fuller's argument with posi-tivism goes much deeper than occasionalobjections to the particular theories of Aus-tin, Kelsen and the legal realists. Fuller at-tacks positivism at its very core. He takesthe basic premise of the positivists-thestriving for a complete separation of the isand the ought in law-and shows first thatit cannot be justified in terms of reality.He thereafter points out in example afterexample how this attempted separationleads to disastrous consequences in prac-tice.

The thesis that has dominated ProfessorFuller's writing over the years is the in-separability of is and ought in the law. In1940 he wrote: "In the field of purposivehuman activity, which includes.., the law,value and being are not two differentthings, but two aspects of an integral re-ality. '4 2 Sixteen years after the above waswritten, Professor Fuller was still makingthe same point:40 FULLER, op. cit. supra note 2, at 4-6, 55-56,

60-61.41 Fuller, supra note 4, at 627.42 FULLER, op. cit. supra note 2, at 11.

II .CATIOLIc LAWYER, SPRING 1965

The problem I have in mind is that whicharises when we attempt to reconcile the nowgenerally accepted dichotomy of fact andvalue with a purposive interpretation ofhuman behavior. For it is my thesis thatwhen we accept the full consequences thatflow from a view which treats human ac-tion as goal-directed, the relation betweenfact and value assumes an aspect entirelydifferent from that implied in the alleged"truism" that from what is nothing what-ever follows as to what ought to be .43

Professor Fuller always brings his thesisdown to the concrete test of its soundness.In simple examples he shows that what thelaw is cannot be separated from what it isfor, and what it is for cannot be separatedfrom what it ought to be.

A judge, for example, cannot properlyinterpret a law without considering its pur-pose. Positivists have tried to argue thatwords have a core of meaning and that thiscore is enough for the judge to work with.Fuller poses the case of a statute which ex-cludes "vehicles" from parks, and thenasks if such a law would exclude a truckused in World War II mounted on a pede-stal as a memorial.44

One cannot interpret a word in a statutewithout knowing the aim of the statute.Suppose a statute reads: "All improve-ments must be promptly reported to. .. ."Notice how the meaning of "improve-ments" changes when you fill in "to thehead nurse," or "to the town planningauthority." The word "improvements" hasno extra-legal standard that helps interpre-tation here. We know what the rule is onlyin the light of what the rule ought to be.45

43 Fuller, Human Purpose and Natural Law, 3NATURAL L. F. 64, 68 (1958).44 Fuller, Positivism and Fidelity to Law-A Re-ply to Professor Hart, 71 HARV. L. REV. 630,661-63 (1958).I' Id. at 664-66.

FULLER

In another example, Professor Fullersupposes that an engineer, awkward inEnglish, drafts instructions for the assemblyof a machine. A professor of English anda mechanic both read and follow the in-structions. The professor applies the wordsof the instructions in their literal sense andgets into trouble. The mechanic hardlynotices the literal meaning and looks towhat the engineer was trying to say. He as-sembles the machine easily. The professorwas refraining from "value judgments" andkept the distinction between is and ought.But Fuller asks, who penetrated most trulyto the empirical fact of these instructions,the professor of English or the mechanic?"

Positivism makes the rigid distinction be-tween is and ought in order to promoteclear thinking in law. But Fuller asks ifclarity in legal discussions is really ad-vanced by this sharp distinction. The draw-ing of distinctions is not an activity thatcan be an end in itself. Fuller facetiouslysupposes that one might write a long trea-tise on the sharp distinction between pieand cake "disposing definitively of all thehard borderline cases, like Boston creampie and upside-down cake. .. ." Nor is itan answer to say that the distinction be-tween is and ought involves the distinctionbetween law and morality, that these con-cepts are important, and therefore must bedistinguished. Is it important to distinguishpie and cake because they deal with theimportant subject of human nutriment? Thequestion is, whether drawing the sharp lineis important. Does making this distinctionreally dispel confusion? Does it reallyhelp?

48

a1 Fuller, supra note 9, at 469.47 FULLER, op. cit. supra note 2, at 86.4S Id. at 85-89.

When Professor Fuller rejects the posi-tivist attempt to exclude ought from thelaw by making an absolute distinction be-tween is and ought, he does not deny thatthere is some legitimate distinction betweenfact and value, and that it can be useful.Fuller's point is that the absolute distinc-tion cannot be made the basic premise ofany legal philosophy because it is not inaccord with basic reality in which the isand the ought are both present. One can-not confine one's study to the is in the lawand exclude the ought. Both are part ofan integral reality. The distinction betweenis and ought may be useful for analyti-cal purposes, but it cannot be assumed as astarting point."' In other words, the analy-sis of law must begin with experience, notself-imposed abstraction. One cannot sepa-rate the inseparable; and the positivist at-tempt to make such a separation leads tounfortunate results.

The attempt to eliminate the ought fromthe law has tremendous implications in thelife work of the judge, the lawyer, the pro-fessor and student of law and the legalscholar. 50

The judge: Shall he be faithful to exist-ing law, or assume a more creative role?Suppose he has impulses toward reform?Can he improve a tradition while transmit-ting it?' Not as a positivist.

The lawyer preparing a brief: Shall heargue the letter or the spirit of the law?Shall he argue the rights of his client or therightness of the case? 52 Positivism dismissesthe argument of "rightness."

4' Id. at 7-12; Fuller, supra note 22, at 451-52.

5 FULLER, op. cit. supra note 2, at 2-4.

Id. at 12; Fuller, supra note 44, at 646-47.FULLER, THE LAW IN QUEST OF ITSELF 12

(1940).

The professor: How shall he teach? Willhe ignore the ethical foundations of the law-the law that ought to be?53 He will as apositivist.

The student: Shall he seek the profes-sor who expounds "the existing law," orthe one who delves into the "shifting ethi-cal background of the law?" '54 A positivistseeks the law that is.

The scholar: Shall his legal writing statethe law or his ideas of what the law oughtto be?55 Ought is outside the realm of posi-tivism.

Positivism, in taking creativity (ought-ness) out of law, tends to reduce law to apure science., Thus, positivism fails togive a profitable and satisfying direction tothe creative application of human energiesin the law. It defeats the very function oflegal philosophy-to decide how the law-yer may best spend his professional life.57

Ideally, the administration of a legisla-tive or decisional rule is a process by whichthe rule is enabled, through the constantpurposive reinterpretation of judges invarying factual situations, to become moreand more what it ought to be. Positivism,in excluding purpose or oughtness, delib-erately takes the striving for perfection outof the law. The law, instead of growing andreproducing itself anew in each fresh fac-tual situation, remains sterile.58

Positivism is scientific. It seeks to extractthe law that is, leaving to politics or someother discipline the law that ought to be.In failing to say anything significant aboutthe content and purpose of law, positivismloses its capacity to say anything at all

53 Id. at 13-14.54 Id. at 15.5a Id. at 14, 38-39.56d. at 91.57 Id. at 2.58 Id. at 88-89, 99.


about specific rules of law or specific prob-lems of legislation or decision. Positivism,in becoming a pure science, ends up byconfining itself to terminological disputes. 59

Professor Fuller cites some examples asevidence of the sterility and formalism ofpositivism. (1) The notes on recent casespublished in the various law reviews in thenation and written by law students reflecta good cross section of the working philos-ophy of our law schools. Usually thesenotes deal with cases that touch the law ata vital spot-where it is growing. Insteadof trying to see if the law is growing in theright direction, the analyst usually objectsto the fact that the law is growing. Oftenthe dissatisfied analyst will write that thedecision was based on "extra-legal consid-erations" which are not discussed by thestudent authors. Obviously the law thatought to be is not legally relevant to thesestudents." (2) The modern preference forlegislation as a means of legal reform indi-cates that lawyers and judges do not suffi-ciently recognize the purposive and crea-tive element in the law.61 (3) In Britain,the law has become so formalized thatcommercial cases seek arbitration ratherthan judicial adjudication. Arbitrators arewilling to take into account the changingneeds of commerce and the ordinary stand-ards of commercial fairness. The judiciallaw that is refuses to bend to needs thatdemand a law that ought to be.6 2 (4) Inthis country where our written Constitutionis authoritatively interpreted by a SupremeCourt, lawyers unfortunately think moreabout what the Supreme Court will do, i.e.,

,, Id. at 91.611 ld. at 128.

I; Id. at 130.62 Fuller, supra note 44, at 637-38.

FULLER

the "legality" of a problem or doubtful pro-cedure, instead of seeking to articulate therestraints that must be accepted to insureorderly, fair and decent government. 63

Not only has legal thinking been stifled,but fact analysis as well. Is and ought aremixed in with facts as well as with law.As a result of positivist concentration onthe is element in factual analysis, there hasbeen an emphasis on those facts which canbe statistically or graphically presented. YetFuller points out, some of the most signifi-cant facts involve intangible realities, suchas moral facts, lying not in behavior pat-terns, but in attitudes and conceptions ofrightness.'-

Professor Fuller points out that we areliving in an era of great basic changes inour social structure. Positivism, by con-centrating on what the law is, tends tofreeze the law and the legal framework.Human relations continue to develop andtake on new forms, but the law which ex-cludes oughtness fails to respond to thepressing needs of the times." Fuller de-scribes positivism's most dangerous qualityas "the inhibitive effect it inevitably hasupon the development of a spontaneous or-dering of human relations. ... "66

Along with its inhibitive effect is thefact that positivism encourages a blindobedience to law. The law is not followedbecause of its reasonableness or its capac-ity to effect a happy compromise amongconflicting human desires. The law is fol-lowed because it is the law. Hitler's Ger-many was an extreme of this aspect of posi-tivism.

63Fuller, American Legal Philosophy at Mid-

Century, 6 J. LEGAL ED. 457, 464 (1954).". FULLER, op. cit. supra note 52, at 64-65.6 I ld. at 110-14.6 6 Id. at 110.

The inherited conception of law thatruled unchallenged, among German legalscholars, for decades taught that "law islaw." This view was helpless when con-fronted with lawlessness in statutory form.No matter how unjust the statute, as long asit was enacted into legal form-as long asit was a sovereign command and an ac-complished fact of the power of the state-it had to be treated as law. Thus, posi-tivism paved the way for Hitler.67

Professor Fuller sees examples of thesame dangerous type of thinking in ourcountry. There was an article in the BostonHerald apropos of the investigatorymethods of a certain senator. The writersaid that he had heard all of the debateover the senator's methods and had con-sulted three lawyers-one opposed to thesenator, one in favor and one indifferent.The writer asked the three lawyers if thesenator had done anything illegal, and theanswer was, no. Fuller concludes: "That tome is an extremely dangerous state of pub-lic opinion where law is simply taken asthe authority determining what should bedone and should not be done, and itsmoral roots are ignored." 6

Professor Fuller worries that many un-dergraduates today are receiving from the"behavioral sciences" an indoctrination inthe notion that the whole social process isa scramble for "power." He is disturbedabout the deep roots this teaching seemsto strike in many students who glibly re-ject as "naive" any view that seems to con-tradict it.69

67 Fuller, supra note 63, at 483-84, 465-66; Fuller,supra note 44, at 659.(8 FULLER, ON THE TEACHING OF LAW IN THE

LIBERAL ARTS CURRICULUM 86 (Berman ed.1956).69 Id. at 42.

Keeping duly enacted law distinct frompersonal opinion and individual moral con-viction-a basic tenet of positivism-is oneof the most worthy goals of civilization. Butin a review of Buckland's Some Reflec-tions on Jurispurdence, Professor Fullerwarns of the danger of pretending that thisgoal has been achieved when it hasn't. Itis doubly dangerous, he adds, to supposethat this goal is, under all circumstances,and in all relationships the most importantobjective man can strive for.7 0

Why Positivism Succeeds

Noting that the harmful inhibitive effectsof positivism have been felt in Americanlegal thinking for nearly a century, 71 Pro-fessor Fuller indicates that some of the rea-sons for its success are its worthy aims, itsreal contributions to legal thinking and itsalliance with the "scientific method." Posi-tivism's worthy purposes include: the pres-ervation of order in society by clearly de-fining what -is law and by encouraging fidel-ity to law;7" the placing of law-making notin the hands of the judiciary but in thelegislature; and, the facilitation of scientificunderstanding of law and government. 73

This latter goal, the scientific understand-ing of law, includes the separation of lawfrom morality. The positivist fear of moral-ity in the law stems not only from the pos-sibility of anarchy when law can bebranded and repudiated by citizens as im-moral-but even more important-fromthe possibility of an over-purposive inter-pretation of law that would fasten on so-

70 Fuller, Book Review, 59 HARv. L. REV. 826,828 (1946).71 FULLER, op. cit. supra note 52, at 61.72 FULLER, op. cit. supra note 36, at 113; Fuller,supra note 44, at 632.73 FULLER, op. cit. supra note 36, at 113.


ciety some all-embracing orthodoxy.74

These positivist goals appeal to, and haveenlisted support from, many a non-positiv-ist legal thinker.

Besides sympathizing with the purposesand goals of the positivists, Professor Fulleracknowledges that positivism has made itscontributions to American legal thinking:

One seldom encounters a law review articletoday [1934] of the type so common tenyears ago [1924], in which the writer startswith an inquiry into the "nature" of somelegal concept and ends by deducing all sortsof important consequences from the sup-posed inner nature of the concept,-withoutmore than a passing reference to the prac-tical effects of his conclusions, and thenwith an air of condescension, as if to com-pliment the facts for showing good judge-ment in conforming to his theories.7- 5

Fuller acknowledges that Kelsen did thelaw a favor in purging it of such imagin-ings as "the sovereign. '

"6 Also, there was

Professor Cook's war on "verbal trifling"or "unconscious metaphysics"77 and Pro-fessor Llewellyn's crusade against conceptswhich he attacked as the shadowy figmentsof our minds, wholly unworthy of thesimple faith the conceptualist placed inthem.7 s Positivists by their emphasis on theconcrete - on the raw datum of law -represented a healthy reaction to over-conceptualism in legal thinking.

Still another important reason for legalpositivism's century of success has been itsalliance with the scientific method. 79 "Thereligion of modern man is science, and he

74 Fuller, supra note 63, at 463; Fuller, supra note44, at 671.75 Fuller, American Legal Realism, 82 U. PA. L.REV. 429, 443 (1934).76 FULLER, op. cit. supra note 52, at 72-73.77 Id. at 63.78 Fuller, supra note 75, at 443.79 FULLER, op. cit. supra note 52, at 117.

FULLER

prefers whenever possible to couch histhoughts in the language of piety, that is,in words that sound scientific.' 8

This holy alliance with science hasgiven positivism the appearance of modern-ity and sophistication. Because of the be-

lief that scientific thinking alone was in-tellectually respectable, postivism alonehad "brave things to say. '81 And Holmes,who had such great influence on Americanlegal thinking,8 2 was one of this holy alli-ance's8 3 most revered prophets.

While Professor Fuller sympathizes withmany of the things that positivism hastried to do, he insists that the goals ofpositivism will never be achieved, becausethe positivist tries to separate the insepar-able: is and ought; fact and value. And in

attempting the impossible - to eliminateoughtness and value from law-posi-tivism is strangling legal development andendangering the future of society by failingto give needed legal structure to the vastsocial changes of the time. By eliminatingpurpose and morality from the law, posi-tivism leaves untouched the difficult issuesof the day where real dangers lie.8 4 Pro-

fessor Fuller believes that the answers tothe pressing problems of the day, and a

80 Fuller, Freedon-A Suggested Analysis, 68

HARV. L. REV. 1305, 1307 (1955).81 FULLER, op. cit. supra note 52, at 104.82 Id. at 117.83 Professor Fuller has no patience with the scien-

tific method as applied to law. He points out thatthe proper method for solving a problem dependsto a large degree on the kind of problem to besolved. Just because a method works in the natu-ral sciences, there is no guarantee that it will workalso in the social sciences or in the law. SeeFULLER, op. cit. supra note 52, at 118-19; Fuller,supra note 80, at 1307-09; Fuller, supra note 63,at 475-76.84 Fuller, supra note 44, at 661-63; Fuller, supranote 63, at 466-67.

real understanding of law, lie in a returnto the true fundamental basis of law andorder:

For I believe that law is not a datum, butan achievement that needs ever to be re-newed, and that it cannot be renewed un-less we understand the springs from whichits strength derives. 85

What these "springs" are is the contentof Professor Fuller's own natural law view.

Fuller's Natural Law View

Professor Fuller's initial (1940) sweep-ing critique of positivism was delivered as a

series of three lectures, later bound in asmall volume and published under the titleof The Law in Quest of Itself."' Within thenext year over twenty reviews of this 147-page work had appeared. The reaction

showed that Fuller had touched the lawat a very sensitive spot.

Professor Fuller's critics, most of whomwere sympathetic, made three generalpoints: (1) Fuller's critique was too nega-tive; (2) Fuller's own natural law positionwas too vague; (3) the term "natural law"was an unhappy choice of terminology.In his subsequent writings, however, Pro-fessor Fuller has met the challenge of hiscritics by clarifying his natural law views.

Professor Fuller's interest in the naturallaw stems from his encounter with thedominant legal philosophy of the presentgeneration - legal positivism. As we haveseen, although Fuller has many funda-mental disagreements with legal positivismon the practical level, his basic quarrelwith positivism is at a speculative level-

85 Fuller, supra note 63, at 467.

8f; These three lectures were sponsored by theJulius Rosenthal Foundation For General Lawand delivered at the Law School of NorthwesternUniversity at Chicago, April 1940.

the impossibility of a complete separationof is and ought in the law.

When Fuller came upon a legal philos-ophy that desired to purge the law ofoughtness and purpose- something thatto his mind partook of the very nature oflaw-he was forced to speak out. Andhe spoke out even though at the time(1940) he was not very clear himself onwhat he meant by law as it involved pur-pose -which he called natural law:

Natural law, on the other hand, is the viewwhich denies the possibility of a rigid sepa-ration of the is and the ought, and whichtolerates a confusion of them in legal dis-cussion. There are, of course, many "sys-tems" of natural law. Men have drawntheir criteria of justice and of right lawfrom many sources: from the nature ofthings, from the nature of man, from thenature of God. But what unites the variousschools of natural law, and justifies bring-ing them under a common rubric, is thefact that in all of them a certain coales-cence of the is and the ought will befound.87

This original insight- the inseparabil-ity of is and ought in the law - has alwaysbeen at the basis of Professor Fuller's natu-ral law view. The subsequent developmentof Professor Fuller's natural law view hasbeen an examination of the oughtness inlaw -its discovery by reason, its standardin nature, and its working out in practice.

Reason and Natural Law

Professor Fuller's original plea for natu-ral law seemed to be nothing more precisethan a plea for the natural creative role ofreason in discovering the law that oughtto be - discovering the basic principles ofjustice underlying the relations of men, andapplying these principles to human rela-

87 FULLER, op. cit. supra note 52, at 5-6.


tions.18 Just how reason would do this -discover the "just" law or the "right" lawfor promoting effective and satisfactory lifein common - Professor Fuller illustratesby a simple example.

We are asked to imagine a shipwreck.The survivors are cast off on an isolatedcorner of the earth. All have a convenientcase of amnesia that has wiped out the mem-ory of previous social existence. When dis-putes arise a judge is selected. This judge,says Fuller, would soon realize:

That it was his responsibility to see thathis decisions were right-right for thegroup, right in the light of the group's pur-poses and the things that its memberssought to achieve through common effort.Such a judge would find himself driven in-to an attempt to discover the natural prin-ciples underlying group life, so that hisdecisions might conform to them. Hewould properly feel that he, no less thanthe engineers and carpenters and cooks inthe company, was faced with the task ofmastering a segment of reality and of dis-covering and utilizing its regularities forthe benefit of the group.8 9

Fuller states that if you take this desert-island judge and put him down in a societythat is already a real and going concern,essentially only one new factor has beenintroduced into the judging process - theforce of established institutions has nowbecome one of the realities that the judgemust respect in making his decisions. 90

Fuller's faith in human reason's abilityto solve the problems of successful groupliving, does not mean that he has unlimitedconfidence in human reason. He disclaimsany "code of nature" that can solve all

88 Id. at 3, 104.89 FULLER, REASON AND FIAT IN CASE LAW 4-7

(1943).90' Id. at 10.

FULLER

cases. 91 He severely criticizes the "ex-tremists" of the natural law school whomaintain all law is the product of reason,and that there is no place for arbitrary fiatin the law. Sometimes the law must bearbitrary.

Fuller adds we can never have a lawwithout both reason and fiat. The necessityof fiat in the law is itself a reality that rea-son must take into account." But at thesame time law can never be stated solelyin terms of fiat, i.e., in terms of power re-lations without reference to its rationalbasis (ethics) .93 Indeed without a rationalbasis, there is no legitimate authority.

Another area where Fuller recognizes

the limits of reason relates to the pursuitof "justice" itself:

It seems impossible to give an adequatedefinition of justice; the quest for justice isin this sense an "irrational" one. Yet thisdoes not prevent the lawyer from recog-nizing clear cases of injustice. 9

4

The lawyer who cannot define justiceis compared to the doctor who cannot de-fine health, but who can recognize disease.Fuller holds that the lawyer who gives uphis quest for justice in the name of a nar-row rationalism is no more justified thanthe doctor who gives up healing the sickbecause he cannot define health withEuclidean exactness. Justice is one of thoseimperfectly rationalized elements which weare intellectually and morally bound to rec-ognize in the law.95

But even though reason has its limita-tions, it must be pushed as far as it will

9' Fuller, supra note 43; Fuller, A Rejoinder to

Professor Nagel, 3 NATURAL L. F. 83, 84 (1958).92 FULLER, op. cit. supra note 89, at 11.93 Id. at 29.9 4 FULLER, MY PHILOSOPHY OF LAW 120 (1941).95 Ibid.

go in discovering the basic principles thatunderlie the successful living together ofmen9 -even if this means entering the"forbidden territory of metaphysics andethics."

9 7

Justice and Reason

Professor Fuller has put in tentativeform a general exposition of his own ra-tional quest for the principles of a justsocial order.99 He points out that the basictask of the lawyer is to find ways by whichpeople can live and work together success-fully. But men cannot live and work to-gether without some organizing principlesthat will resolve conflicts and promote co-operative action. There are four ways bywhich men may achieve the necessaryorder. These are:

1) joint discovery and recognition ofthe common need;

2) the establishment of some rule-mak-ing power;

3) the solution of disputes by adjudica-tion; and,

4) negotiation and agreement amongthe interested parties.

Corresponding to these four ways ofachieving order are four principles oforder:

1) the principle of the common need;

2) the principle of legitimated power;

3) the principle of adjudication; and,

4) the principle of contract.19

96 FULLER, op. cit. supra note 52, at 109; FULLER,

THE PROBLEMS OF JURISPRUDENCE 104 (1949);Fuller, supra note 91.9' Fuller, On Teaching Law, 3 STAN. L. REV. 35,47 (1950).98 FULLER, op. cit. supra note 96, at 693.99 Id. at 694.

The principle of the common need is asine qua non and the most basic of thefour principles. A just or right ordering ofsociety can be attained only by a discoveryand recognition of the common need. Theother three principles are intelligible anddefensible only as necessary supplementsto the principle of the common need, andas devices or procedures for realizing thecommon need. It would be ideal if thecommon need could be achieved withoutresort to adjudication or the use of power,but such a spontaneous corporate spiritis not found in human society. Thus, thethree lesser principles must serve the prin-ciple of the common need in order to ap-proach that order by which men can bestlive and work together.

The three lesser principles are neverends in themselves; they can only be un-derstood as indirect means of achieving re-sults that are likely to approximate thecommon need. Each of the lesser threeprinciples is a kind of pis aller (lastresort), a principle that must be resortedto only if the common need cannot beotherwise attained-either because of anirreconcilable conflict between individualand social values, or because the commonneed is not properly perceived and under-stood.100

What is the common need? ProfessorFuller equates the common need with thelaw of nature. To achieve the commonneed is to approach a just or right orderingof society. It is a search for the most effec-tive and least disruptive pattern of orderthat will satisfy men's desires and interests,reconciling individual interests with socialvalues. When the members of society actin accordance with the perceived common

100 Id. at 695-737.


need, their actions are dictated by the ne-cessities of the situation and their sharedunderstanding of what those necessitiesdemand of each of them. 101

How is the common need to be achievedin practice? There must be an intensestudy of the factual situation to which thepattern of order is to relate. The commonneed is that pattern of order that is rightfor the situation-that reaches the resultmost consonant with the interests and de-sires of the generality of men. 1

12 If com-

missioned to draft a comprehensive statutefor the regulation of automobile traffic, thelegislator primarily would seek

a set of rules that would keep people fromrunning into one another, which would, atthe same time, not slow traffic unduly orcreate impossible burdens of administra-tion for traffic officers and traffic courts.In other words, the sources of his lawwould lie in the necessities inherent in theproblem with which he had to deal. Givena situation, and given certain generallyfelt and accepted human desires about thatsituation, his task would be to work outa way of effectuating those desires withinthe compulsions of the situation to whichthey relate.1

13

Some have criticized the principle of thecommon need because it is nebulous. Pro-fessor Fuller admits that the common needis not a mathematical calculation or a pat-ent medicine guaranteed to cure. Rather itis the application of a principle of justordering to a particular concrete situationinvolving the use of discretion.114 Whenthe critics argue that no one can point to

101 Id. at 694-98, 706, 736.102 Fuller, The Place and Uses of Jurisprudence inthe Law School Curriculum, I J. LEGAL ED. 457,499 (1949).10 Ibid.'o4 FULLER, op. cit. supra note 96, at 695-97;FULLER, op. cit. supra note 89, at 25-27.

FULLER

any particular rule of law or of the socialorder that is unambiguously demanded bythe common need, Fuller replies:

Because the common interest does not tellus everything, there is no reason to con-clude that it tells us nothing. Those who re-ject the principle of the common need be-cause it does not dot all the i's or cross allthe t's should recall the saying of an an-cient Chinese philosopher, Mencius: Whena cobbler undertakes to make a pair ofshoes without knowing the measure of thefeet, he does not end by making a bushelbasket.1

0 5

Human Nature: The Standard

At this point we may ask: what keepsProfessor Fuller's natural law (commonneed) from being something purely rela-tive? Fuller has stated that the natural lawis derived from the "compulsions of thesituation."10 What is to prevent his naturallaw from being what men want rather thanwhat ought to be? The positivists have crit-icized the natural law for failing to tran-scend "personal predilections."'0 7 Can Pro-fessor Fuller's explanation of natural lawescape this criticism?

Professor Fuller does not agree withthose who hold that the object of law issimply to resolve conflicts. 108 He insists ona right ordering of society and looks forright solutions to problems. 1 9 The rightand just solution makes good law.1"0

105 FULLER, op. cit. supra note 96, at 696.506 Fuller, supra note 102, at 499.107 FULLER, THE LAW IN QUEST OF ITSELF 5

(1940).108 Fuller, supra note 91, at 103-04.109 FULLER, Op. cit. supra note 96, at 695; Fuller,supra note 102, at 499; Fuller, supra note 97, at45.110 Fuller, Positivism and Fidelity to Law-A Re-ply to Professor Hart, 71 HARV. L. REV. 630, 644(1958).

But the right and just solution is notpurely subjective. There is an objectivemoral goodness. There are good and badlaws just as there are good and bad pur-poses of law. Arguing on the basis of theintrinsic appeal of law, Fuller denies thatevil aims of the law have as much coher-ence and inner logic as good aims. Pro-fessor Fuller also has an answer for theethical skeptics. In his review of A Dialecticof Morals: Towards the Foundations ofPolitical Philosophy, he distinguishes hisown answer from that of Professor Mnr-timer Adler.

Adler refutes ethical skepticism by be-ginning with a minimal good. Thus, Adlerargues that if the unhampered pursuit ofpleasure were man's only goal, at least onestandard of preference would have validity,namely, that as between two pleasures, thegreater should be preferred.

Professor Fuller begins his refutation ofethical skepticism with the maximal bad.He asks us to imagine a society in whichall ordinarily accepted values are reversed-a society in which treason, murder, andrape are officially encouraged; in whichbreach of contract is rewarded and its ob-servance punished; a society where assist-ing one's neighbor is regarded as a heinouscrime. No sane person would hesitate tocall such a society "bad." It would be badby every conceivable standard, whether itbe the dignity of man, the maximization ofhappiness, the fullest realization of humancapacities."'

When Professor Fuller seeks a rightsolution derived from the "compulsions ofthe situation," he sees the most fundamen-tal element in this human "situation" as

-' Fuller, Book Review, 9 U. CH. L. REV. 759,760 (1942).

the only standard of rightness-humannature. What is right for the "situation"depends upon what is right for man.

To say "man" is, necessarily, to say"purpose" or "oughtness," since man is by

nature a self-directing, purpose-achievingcreature. And what is right for man (theright purpose) must be in conformity withman's nature:

A purpose is, as it were, a segment of aman. The whole man, taken in the round,is an enormously complicated set of in-terrelated and interacting purposes. Thissystem of purposes constitutes his nature,and it is to this nature that natural lawlooks in seeking a standard for passingethical judgements. That is good which ad-vances man's nature; that is bad whichkeeps him from realizing it. 1 12

Natural law philosophy is not confinedin its application to the study of law. Everyscience that has something to say abouthuman activity is involved in natural-lawthinking. Fuller illustrates:

Take, for example, psychoanalysis. Thistheory originated in a context of thoughtthat certainly seems remote from the phil-osophy of natural law. Yet it assumes thatthe purpose-forming system called a manmay be in need of being "straightened out,"and at the same time contains within it-self the sign posts that will direct thestraightening-out process. This is the es-sence of the natural law position. If thepsychoanalyst does not do somethingroughly equivalent to helping his patientrealize his "true nature" then his wholeprofession loses intelligible meaning.' 13

Professor Fuller also holds that there arenatural laws of social order. This is so be-cause society is made up of men, and the

112Fuller, American Legal Philosophy at Mid-

Century, 6 J. LEGAL ED. 457, 472 (1954).11 Id. at 473.


right ordering of men living together mustrespect human nature just as much as theindividual acts of a man must respect hisnature. Social arrangements are thereforenot infinitely pliable. There are certain endsof society, certain patterns of order-whether agreed upon by a majority orimposed by a dictator- that will fail toachieve a successful ordering of society ifhuman nature is not respected. 114

Professor Fuller points out that businessadministration, economics, and politicalscience do not operate on the premise ofthe infinite pliability of ends. A factorymanagement does not simply dream up anideal pattern of production. Managementis concerned with the natural laws under-lying the production of goods. Many fac-tors are taken into consideration: individ-ual and social psychology, the constructionand operation of the human body, etc. Ful-ler notes that economic theory today holdsto the view that the forms through whicheconomic objectives can be achieved arelimited in number, and that for certain

objectives, certain forms must be employed.Fuller sees political science as being con-cerned with the effects that flow from theadoption of different forms of politicalorder.115

In law and sociology, Professor Fullersays we should find the same line of in-quiry. But he notes that we do not becauseof the influence of empirical science, whichtreats man not as a self-directing phenom-enon, but as determined (thus determinableto any conceivable order or social arrange-ment). Fuller insists that the sociologist andlegal philosopher must treat man underboth aspects-as determined and as mak-

114 Id. at 473-74.115 Id. at 474-75.

FULLER

ing choices. In making choices, man's na-ture must be respected, and therefore there

are limits of the possible forms of socialarrangement. The sociologist and lawyershould discover and utilize the natural lawsof social order-natural in the sense thatthey represent compulsions necessarily con-tained in certain ways of organizing men'srelations with one another.116

Professor Fuller points out that the Rus-sians who tried to impose a pure Marxianpattern on society failed when it came tolaw. Pashukanis theorized that all law was

capitalist, finding its rationale in exchangeand in the market essential to capitalism.Fuller says it is interesting to compare thepure Marxian theory of the now dis-credited and liquidated Pashukanis with theunblushing "bourgeois" elements that ap-pear in the later theories of Vyshinsky.1 7

Problems Raised

Even though Professor Fuller insists thathuman nature is the standard for measur-ing human purposive activity, there are stillmany questions to be answered:

1) Has the natural law the right to sit

in judgment over positive law, and counsela disregard of any enactment of the positivelaw that violates natural law?

In principle, Fuller answers yes. Heholds that when a statute is sufficiently evilit ceases to be law."" Admittedly, when itis suggested that this imperious attitudetoward positive law be adopted, there isground for real concern. However, if the

116 Id. at 475-76.

117 Fuller, Pashukania and Vyshinsky: A Study inthe Development of Marxian Legal Theory, 47MICH. L. REV. 1,157, 1165 (1949).118 Fuller, supra note 110, at 655; Fuller, supranote 91, at 91.

matter be examined candidly, it will befound that there is no one who cannotimagine himself, even as a judge, beingfaced by a law so infamous that he wouldfeel bound to disobey it. For most of us,says Fuller, such a situation could onlyarise in the event of some great dislocationin the ordinary processes of government,such as might be occasioned by a dictator-ship or an occupation by enemy forces.,,"In the Hitler regime, for example, the mostserious deteriorations in legal morality tookplace precisely in those areas of the lawwhere the purposes of the law were most re-pulsive to human nature. In other words,where one would have been most temptedto say, " 'This is so evil it cannot be a law,'one could usually have said instead, 'Thisthing is the product of a system so oblivi-ous to the morality of law that it is not en-titled to be called a law.' "120

Thus it is only by way of exception thatthe natural law would be invoked to over-rule positive law. As a general rule, thenatural law demands obedience to positive

law-even though the particular positivelaw in question is not "good" law in allrespects. Indeed, the very obligation of

obeying positive law derives from the na-tural law, as this obligation cannot comefrom positive law itself.121

2) Is there a "higher law" that sits injudgment over the natural law?

Professor Fuller makes it clear that hedoes not accept any doctrine of natural lawwhich asserts that the demands of thenatural law can be the subject of an author-itative pronouncement, or the notion thatthere is a "higher law" transcending theconcerns of this life against which human

139 Fuller, supra note 112, at 467-68.120 Fuller, supra note 110, at 661.121 Fuller, supra note 112, at 467-68.

enactments must be measured and declaredinvalid in case of conflict. 12 Fuller declaresthat these exclusions are "at least as an-cient as Aristotle, in whom I find no traceof the elements I reject."' 2

3

An authoritative interpretation of morallaw, for example, the November 7, 1949speech of Pius XII to the Union of Cath-olic Italian Lawyers regarding the duty ofCatholic judges in divorce actions, troublesFuller and raises "grave issues.' '1 24 But Ful-ler can see why the Catholics believe in anauthoritative interpretation of the naturallaw, even though he doesn't share thesesame beliefs himself. Indeed, Fuller paysthe Catholics a compliment for their con-tribution to natural law thinking:

It should be remarked at this point thatit is chiefly in Roman Catholic writingsthat the theory of natural law is consid-ered, not simply as a search for thoseprinciples that will enable men to live to-gether successfully, but as a quest forsomething that can be called "a higherlaw." This identification of natural lawwith a law that is above human laws seemsin fact to be demanded by any doctrinethat asserts the possibility of an authorita-tive pronouncement of the demands ofnatural law. In those areas affected by suchpronouncements as have so far been is-sued, the conflict between Roman Catholicdoctrine and opposing views seems to meto be a conflict between two forms of posi-tivism. Fortunately, over most of the areawith which lawyers are concerned, no suchpronouncements exist. In these areas Ithink those of us who are not adherents ofits faith can be grateful to the CatholicChurch for having kept alive the rationalis-tic tradition in ethics.12 5

3) Even if a "higher law" be excluded,

122 Fuller, supra note 91, at 84.123"bid.12 Fuller, supra note 110, at 638.15Id. at 660.


what about the fear of the positivists thatthe purposive interpretation of law will bepushed too far?

The positivists fear not so much that apurposive interpretation of law will lead toanarchy as that it will lead to the oppositeof anarchy-the imposing on society ofsome all-embracing orthodoxy 126 or "im-moral morality." 127 Fuller shares this fearwith the positivists.121 He sees the possibledanger of imposing conformity which wouldbe a threat to human dignity and freedom.As an example of the kind of developmentin law which he fears, Fuller cites a hypo-thetical statute which forbids golf on Sun-day. Conceivably, such a law might be in-terpreted as a law imposing compulsorychurch attendance and recitation of pray-ers. This type of judicial interpretation isa threat to human dignity because it com-mands something that only has meaningwhen done voluntarily. 129

How is purposive interpretation to bekept within bearable proportions? Fulleranswers that just to say "common sense"is not enough. To give this answer wouldbe an evasion, and would amount to say-ing that although we know the answer, wecannot say what it is. Fuller apologizes forhis own lack of preciseness, but does offera suggestion. Asserting that judges musthave respect for the concept of legal struc-ture, Fuller points out that a statute or arule of common law has, either explicitly,or by virtue of its relation with other rules,something that may be called a structuralintegrity. Structural integrity is what wehave in mind when we speak of the "intentof the statute"-though we know it is men

326 Fuller, supra note 112, at 463.127 Fuller, supra note 110, at 635-36.128 Fuller, supra note 112, at 463.129 Fuller, supra note 110, at 669-7 1.

FULLER

who have intentions and not words onpaper. The judge must limit his creativerole to the confines of the structure of thelaw.1

3 0

4) If the jurist confines himself to "legalstructure," how deeply into human purposecan the legal philosophy go? What, if any-thing, can he say about the ultimate pur-pose or end of man and of the law?

Here we move into the very blueprint ofthe legal structure itself. How are we todraw the basic lines of the legal structure?What is the end of law? For what purposesdo its constraints exist? We have seen thatthe goal of society is the achievement ofpeace and order; that the discovery andimplementation of the common need pro-mote the successful living together of men.But how to achieve the common need? Pro-fessor Fuller has told us that the answerlies in an understanding of human natureand of the human social order. But howfar, how deep, is the law to penetrate thecomplex, purpose-achieving animal we callman? How much can the law understandman and specify his goals? l"1

Professor Fuller believes that the lawshould not try to go too far or ask toomuch. He holds that the law ought to becontent to discover and implement thoseminimum principles which make the lawpossible. 132 Here Professor Fuller makes animportant distinction. He holds that the lawshould not try to discover ultimate pur-poses as such. Rather the law should con-centrate on the procedures or social formsthrough which the ultimate, by collectiveactivity, are determined. Arguing on thetheory that if we do things the right way,

130 Id. at 670.131 Fuller, supra note 97, at 35.132 Fuller, supra note 112, at 463.

we are likely to do the right things, Fullerbelieves that if the procedures and socialforms are sound, the results achievedthrough them will tend to be sound.13 3 Forexample, a constitution drafted for a coun-try emerging from violence and disordershould establish a basic procedural frame-work for future governmental action andsubstantive limitations should be kept at aminimum:

In so far as possible, substantive aimsshould be achieved procedurally, on theprinciple that if men are compelled to actin the right way, they will generally do theright things.13 4

Why does not the law look for ulti-mates? One reason we have already seen:because such a search is really the searchof metaphysics. The law would be askingquestions bigger than itself. But there aresome ultimates that the law must seek.Professor Fuller has given us one such ulti-mate when he asks, what do we mean by a"right" decision. 135 At the same time, Ful-ler warns, human terminal ends are ob-scure, and our reasoning powers sometimesfail us:

I have no intention of attempting to drawhere the line at which the effort to defineends should be permitted to relax. I shouldlike to suggest, however, that this is a mat-ter in which the cultural forces that sur-round us play a more important part thanwe generally realize. How far we shouldpursue ultimates is a question more likelyto be determined by currents of intellect-ual fashion than by deliberate choice. Thepressures of our present intellectual climateare toward truncating the inquiry at theearliest possible point.136

133 Fuller, What the Law Schools Can Contribute

to the Making of Lawyers, 1 J. LEGAL ED. 176,204 (1948).I1 Fuller, supra note 110, at 643.135 Fuller, supra note 97, at 45.1361 d. at 36.

Even though Fuller sees the quest forultimates as a difficult quest, a push intothe unknown and obscure-still he doesnot hold with the positivists that humanends and values cannot be the object ofreasoned demonstration. As a natural lawexponent, Professor Fuller sees the work ofthe natural law involving the selection ofapt means for the realization of a given endby an activity which engages man's reasonand his capacity for accurate analysis andobservation. But Fuller points out that endsand means are not as simple as they firstseem. In actual concrete situations and inactual decisions, means and ends no longerarrange themselves in tandem fashion, butmove in circles of interaction. This com-plex of ends and means can be the objectof reasoned demonstration, but it is impos-sible to assign in advance precise limits tothe role of reason. Fuller therefore urgesthat we push our understanding as far as itwill take us into the obscure area wheremeans and ends interact. He says we mustseek collectively to discover as much agree-ment in this area as the nature of the casepermits.1

37

Because of the complex interaction be-tween ends and means, and because of theobscurity involved in searching out the ulti-mates, Fuller sets the sights of his naturallaw approach more on means than on ends-but his approach includes both. ThusFuller concentrates more on legal processesand social forms. He believes that if thelegal processes are perfected and thor-oughly understood, the goals or ends whichresult from the intelligent employment ofthese processes will be the best goals forman and society. It is not so much a ques-

''7 Fuller, Human Purpose and Natural Law, 3NATURAL L. F. 64, 68, 71-73 (1958).


tion of defining ultimates, as defining theconditions under which the ultimates arerealized."s Fuller calls this practical na-tural law approach "Eunomics."'l

Eunomics

Eunomics is derived from the Greek,and means "good law." Professor Fullerchooses this term:

Because of the confusions invited by theterm "natural law," I believe we need anew name for the field of study, and I sug-gest the term "eunomics," which may bedefined as "the science, theory or study ofgood order and workable arrangements. '

"140

Professor Fuller goes on to describe thelimits of his proposed study:

Eunomics involves no commitment to"ultimate ends." To be sure, it may rejectparticular ends as presenting what MichaelPolanyi calls "unmanageable social tasks."It may, in other words, reveal that thereare ends which seem in the abstract desir-able, but for the attainment of which nosocial form can be devised that will not in-volve an obviously disproportionate cost.But the primary concern of eunomics iswith the means aspect of the means-endrelation, and its contribution to the clari-fication of ends will lie in its analysis of theavailable means for achieving particularends.141

Professor Fuller stresses the means as-pect of the means-end relation. He pointsout that, in concrete decisions, means andends interact, and means have a decidedinfluence on ends. He suggests that thefailure to recognize the significance of thisinteraction was the mistake of the naturallaw school of 150 years ago. But Professor

138 Fuller, supra note 97, at 42; Fuller, supra no'e

137, at 73.I311 Fuller, supra note 112, at 473.140 Id. at 477.141 Id. at 477-78.

FULLER

Fuller is careful to point out that eunomicsis not unmindful of ends:

In attempting to define a branch of socialstudy that might be called eunomics, Istated that an acceptance of this subject asworthy of pursuit implies no commitmentto "ultimate ends." I was careful not tosay that eunomics is indifferent to ends. Inview of the interaction of means and endsany sharp distinction between a science ofmeans and an ethics of ends is impossible.In leaving the problem of "ultimates" un-resolved I mean merely to acknowledgethat after a careful study of the interactionof means and ends with respect to a partic-ular problem, men may still ,differ as towhat ought to be done and that eunomicscannot promise to resolve all such dif-ferences.

14 2

While eunomics stresses the means as-pect of the means-end relation, it must notconcentrate too heavily on the means as-pect. To concentrate on means to the ex-clusion of ends (as is often found in eco-nomics and sociology) leads to a situationin which the various social disciplines (law,sociology, economics) talk past each otherand no effective communication takes placeat all. This is another reason why Fullerinsists that eunomics consider ends andmeans in interaction. 14

3 Eunomics alsohelps solve the problems of a pluralisticsociety. To immediately begin arguingabout ultimates cuts off discussion. Fullerurges a reasoned analysis of the processesor means as a way of airing and under-standing ends and goals.

Where does human nature fit into euno-mics? Fuller admits that in stating the casefor eunomics he had tried to keep it dis-tinct from the question whether the natureof man can furnish a meaningful standard

142 Id. at 480.143 Ibid.

of ethical judgments. He has done this inorder to get those who reject the naturallaw to accept eunomics and be party to thediscussion of the problems that beset soci-ety in our day. But no matter how emphaticthe rejection of the natural law and humannature as a standard, Fuller points out thatif certain constants and "social regularities"persist through a change in suggested socialforms and procedures, these constants mustreflect some stability in the nature of manhimself. It is at this point that eunomicsreaches common ground with the naturallaw theory.1

44

What is the relation between the prin-ciples of the common need 4 and eu-nomics? Although Professor Fuller doesnot relate the two, it seems clear thateunomics exists precisely in order toachieve the common need-a just orderingof society. The primary focus of eunomicsis upon the procedures or subsidiary prin-ciples (adjudication, legitimate authority,and contract) through which the commonneed is attained.

The working out of eunomics and theattainment of the common need in practicerequires that men get together, collaborate,discuss, and reflect; that men try to under-stand what the common need is, what thebest social forms and processes are, andwhat effect these means have on socialgoals.

Just as in the affairs of daily life, we allknow from personal experience that inmoments of crisis, consultation with afriend will often help us to understand per-sonal problems; so in the larger issues oflaw and ethics, men may, by pooling theirintelligent resources, come to understand

144 Fuller, supra note 112, at 481.1A5 See page 108 supra.

better what their true purposes are. Pro-fessor Fuller calls this way of solving theproblems of law and ethics, the collabora-tive articulation of shared purposes.146 Inother words, what ought to be done is im-proved by discussion and reflection. Thiscollaboration of men and ideas not onlyhelps toward the choosing of a bettermeans, but can clarify the end as well.14

1

It is the collaborative articulation of sharedpurposes that has produced the traditionalcase by case development of the Englishand American common law. This is theway the common law has worked itselfpure through the centuries and kept pacewith the changes in the social order. 148

Continued collaboration is our hope forthe future. Professor Fuller points out thatour republic was conceived in the spirit ofnatural law. We enacted constitutionalguarantees of free speech on the theorythat through discussion men find truth, andthat truth, when found, should regulate ourlives and institutions.' 9 Fuller insists socialchange can only take place peacefully in anatural law climate-where ideas can com-pete with each other for men's acceptanceand the successful ordering of society. Inthe long run, ideas compete with eachother successfully not because they areespoused by a majority or can be forcedon society by an effective power in society;rather ideas compete successfully only tothe extent of their reasonableness and con-sequent acceptance by society.2 ° With the

146 Fuller, supra note 137, at 73-74.1.17 Fuller, supra note 110, at 668.1,48 Fuller, supra note 137, at 74; Fuller, A Re-joinder to Professor Nagel, 3 NATURAL L. F. 83,96, 98 (1958).149 FULLER, THE PROBLEMS OF JURISPRUDENCE

724 (1949).150 FULLER, op. cit. supra note 107, at 110-14,121-23.


philosophy of positivism, which excludespurpose from the law and which thereforestifles development in the law, we tend tolive on today with the successful ideas ofsocial order of the past. 151 We cannot goon for long with a sterile positivism. Weneed new solutions for the pressing prob-lems of our own day. So men must get to-gether and seek to understand the facts ofour modern industrial society. By the col-laborative articulation of shared purposes,men must discover the ideas and patternsof order that spring from the nature of manand society and that provide the only an-swer to the challenge of our times.112

ConclusionProfessor Fuller does not associate him-

self with any particular school of naturallaw. But Professor H. Gill Reuschlein, Deanof the University of Villanova Law School,who has studied some seventy differentAmerican writers in jurisprudence, classi-fies Fuller with the "Integrative Jurisprud-ence School"-with Benjamin Cardozo,Roscoe Pound, Huntington Cairns, MorrisR. Cohen, Jerome Hall, and Edmond N.Cahn.'" Professor Fuller is pleased withthis classification."' (Reuschlein classifiesMortimer J. Adler, Robert Hutchins, andHarold R. McKinnon as "Neo-Scholas-tics."),",

Neither Scholastic nor Thomist, Profes-sor Fuller is interested in and critical ofThomistic legal analysis. He finds that when

151 Fuller, supra note 137, at 75-76.152 Id. at 74-76; FULLER, op. cit. supra note 107,at 126-27.153 REUSCHLEIN, JURISPRUDENCE-ITs AMERICANPROPHETS 404-05 (1951).1.4 Fuller, Book Review, 12 LA. L. REV. 531, 532

(1952)..55 REUSCHLEIN, op. cit. supra note 153.

FULLER

Thomists set themselves against legal posi-tivism, the writings are largely polemic andeven vituperative in character, usually end-ing up in an attack on Holmes.156

Professor Fuller is not satisfied with anegative Thomism. He wants to know whatThomism is for, not what it is against:

What does the neo-Thomist philosophysay about such questions as the interpre-tation of statutes, the proper role of thejudiciary, or the methods of reconcilingfreedom and control in our complex mod-ern society? I find no coherent answer toquestions of this sort in the published pro-fessions of this philosophy.1 57

Fuller urges the Thomist to go back toSt. Thomas for coherent answers:

Though there are some startling things inSt. Thomas on such subjects as monstersand angels, I personally have found himfull of useful wisdom on matters of lawand government. But curiously most ofthe neo-Thomist writings in the legal fieldare almost destitute of reference to St.Thomas himself, who taught, as I readhim, that positive law is a human thing in-tended to promote happiness of humanbeings., 8s

At least one writer in the Thomist tra-dition concurs with Professor Fuller in crit-icizing neo-Thomists for failing to givenatural law coherence to pressing questionsin our complex modern society. Father LeoR. Ward, C.S.C., writes:

As is clear to all and as some persons havenoted, Roman Catholics with their Aristo-telian-Thomist background -itself gene-rally not profoundly studied and renewedin this regard -were almost the only per-sons affirming natural law in the UnitedStates, and their statements, quite possiblytrue statements, were a bit lifeless, and had

-6 Fuller, supra note 154, at 534.15T Ibid.158 Id. at 534-35.

gone sterile. This was because they werestudied out of relation to reality and itsperpetual problems, and thus had cometo be as if meaningless. There are notableexceptions, such as the works of Maritainalready mentioned, distinguished work byRommen and those by Lottin, and the workby Robert Russell and that by Peter Stan-lis; but the usual textbook treatment ofnatural law had become incredible becauseof missing the existential situation whichnatural law doctrine is presumably de-signed to meet.' 59

When we come to value Professor Ful-

ler's contribution to natural law thinking,

it would seem that it is to be found pre-

cisely in those areas where he and Father

Ward are most critical of neo-Thomists-

in giving the natural law relevance to the

existential situation.

The Thomist tends to begin his natural

law approach in the upper reaches of im-

mutable principle-principles of good and

evil, the sacredness of human life, the in-

violability of the human person. But the

Thomist has been found wanting when it

comes to the hard reasoning needed to pull

the principle down to the level of the

existential.

We find Professor Fuller, on the other

hand, beginning his natural law approach

on the concrete level. After a mastery of

the existential, he asks, "What is good for

man and good for society as measured by

the standard of human nature?" Fuller has

thought problems through on the lower

level -principles for interpreting statutes,

the proper role of the judiciary in a de-

mocracy, the methods of reconciling free-

dom and control in our complex society.

(Continued on page 137)

1."gWard, The Natural Law Rebound, 21 REV.OF POLITICS 117 (1959).

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