1

1. A discussion on Fuller's internal morality of law and his arguments

Professor Lon L. Fuller is a well-known legal philosopher who wrote THE MORALITY OF LAW. In his most influential work he specifically discussed the concept of “the inner morality of law’. The book is about an entertaining story of King Rex, who wants to rule but failed to do so, because he failed to consider the ‘eight principle of legality’ which he argues are the necessary features of the ‘inner morality’ which he identifies as:

1. There must be laws, it means that it is not enough to just someone or somebody handing out rulings; there must be law in existence.

2. These laws must be publicized; laws cannot be kept as secret.3. These laws must prospective, not retroactive.4. These must be understandable that all the reader will be comprehended. It must

be clear and concise.5. These laws must not contradict each other.6. These laws must not require the impossible.7. These laws must not change too rapidly.8. These laws must be the laws that are enforced. The actual administration of the

law must be consistent with the laws themselves.

Fuller sets out a powerful and distinctive argument for law’s moral significance, contesting that there is no real conceptual distinction between law and morality by reason that the law is, in its fullest sense, a moral commitment. He stresses that discussion of morality is simply inescapable if we want to completely understand the concept, including the main objectives, of law. Fuller defines the law as a particular way of achieving social order by ‘subjecting human conduct to the governance of rules.’ He believed that these rules and norms which are built into our legal procedures are intrinsically purposive, and thus, value-laden and containing a procedural inner morality.1

It is to be noted that Fuller’s eight directives say nothing about the content of the laws of a legal system, other than that the laws must not require the impossible. It may be consistent with his theory that a legal system has laws protecting slavery, human sacrifice, the denial of property rights to minorities, etc., so long as these laws exist, are publicized, are understandable, are not impossible to obey, are stable, and are the laws that actually are enforced. These eight considerations are not only criterial, in the sense that some level of compliance is necessary to make law but also strategic in the sense

1 Glasgow University Law Society: The ‘Inner Morality of Law’: An Analysis of Lon L. Fuller’s Theory. October 29, 2014.Retrieved from http://www.gulawreview.org/entries/legal-theory/the-%E2%80%98inner-morality-of-law%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theory

2

that level of compliance to achiever whatever governmental purpose a legislator might have in mind.

2. Dworkin's criticisms on Fuller's internal morality of law

Dworkin, as positivism's most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin, a theory of how cases ought to be decided and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.2

Dworkin, criticized the work of Fuller specifically on his book THE MORALITY OF LAW because of the latter’s being a positivist theorist. On the first part, he discussed why Fuller failed to established a novel claim about law and morality. According to him Fuller fails to demonstrate why the value of the internal morality of law is anything than that of efficacy as the value accrues to the lawgiver’s pursuit of ends by virtue of complying with the principles of the internal morality of law. On the second part, he examine certain contentions which he believe underlie the claim and which, properly articulated, are in fact considerable importance and ethical philosophy.

Dworkin also rejected the two interpretations of Fuller’s use of “morality” each very different from the position set out in his text.

1. It is conceivable that Fuller, in using the phrase “internal morality”, means merely to repeat his strategic claims in different language, i.e., that he uses the phrase simple to mea “conducive to the purposes of the enterprise at hand whatever they might be. 3

2. Having made the four arguments for a connection between “internal” and “substantive” or “external” morality, Fuller said that he attempted to show that internal morality of law does indeed deserve to be called a “morality”. This might suggest that he understand the ‘morality’ of internal morality to be solely derivative, to consist entirely in the fact that there is a connection between it and the substantive moral value of the law embodies it. According to Dworkin this must also be rejected because throughout his book Fuller’s language suggests that his eight canons have moral quality and not merely a derivative or reflective morality. Moreover, the connection which Fuller in fact shows between his

2"Legal Positivism (Stanford Encyclopedia of Philosophy)" .Plato.stanford.edu. 2003-01-03.Retrieved 2013-02-14.3 Shuman: Legal Positivism 88-93 (1963)

3

“internal” and external moralities would not justify the claim of any derivative morality in the former, for his argument would then be like the argument that the rules of grammar possess moral quality simply because it is generally easier and safer to tell the truth than to lie.

3. Hart's separation of law and morals

According to H.L.A Hart legal positivism somehow involves a “separation of law and morals” in his seperability thesis. He analyzed the philosophies of famous legal philosophers such as Austin, Holmes and Austin with that he conclude that we must recognize something obscured in legal positivists: that there is a “point of intersection between law and morals” or what is and what is ought to be are somehow indissolubly fused or inseparable.

There are many necessary conceptual connections between law and morality, some of them conceptually significant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. According to Hart, there is also an immorality that law makes possible. Law’s in nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

4. Arguments for and against the moral obligation to obey the law (include Rawls) and your own opinion if there is a moral obligation to obey the law.

Almost all the participants believe that people on the Western world have the obligation to obey the law. For, John Simmon’s one has the obligation to obey the law does not mean that one must necessary to obey the law. A large number of contemporary writers take the position that there is no moral obligation to obey the law. M.B.E Smith claimed that such obligation cannot be derived from more moral basic obligation such as those of ‘fair play’ and ‘consent’. Donald Regan, an exponent type of act-utilitarianism, he does not deny that law frequently is promulgated with the idea of generating moral obligations nor does he deny that on many occasions laws do in fact create moral obligations. Regan’s point is merely that one’s recognition of a legal obligation to behave in some particular manner does not entail that one has a moral obligation to behave in that manner.

George Christie sets three examples in analyzing the arguments. In first example, Positional Duties he said that Simmon’s exampledoes not support his

4

assertion that legal duties, do not impose any kind of moral obligations, but, if anything, lends support to the contrary assertion. Second, Moral Obligations and the Receipt of Open Benefits he said that perhaps, no moral obligations to political society- such as a moral obligation to obey its laws- arise out of considerations of fair play or gratitude, but the arguments provided by Simmons do not convincingly make the case. In the third and last example, Fussy Regulations he conclude that insofar as the argument that there is no moral obligation to obey the law proceeds by appealing to our intuitions concerning certain paradigmatic cases, it is unconvincing. It is time to turn to arguments that should be rest on principles and not on intuition.

According to John Rawl the moral obligation to obey the law "is a special case of the prima facie duty of fair play”. The general question of the obligation to obey the law is settled for Rawls by a series of tests including those that would look at the justice of the constitution, the depth of the injustice the law enacted, whether those enacting it wish the injustice to result and whether we can realistically hope to repeal the law. This already looks towards questions concerned with civil disobedience but these questions aren't here taken further.

In my own opinion, in our complex society we have this moral obligation to obey the law to achieve the peaceful co-existence with other humans. Our government will act as a central authority that has the sole responsibility for this goal of peaceful co-existence. If we won’t follow the rules promulgated by our central government we might come back to our old barbaric method when there is no civilization, during those time, in which people fight to save their lives, a survival of the fittest. We, as a citizens have also that moral obligation within ourselves to elect leaders that we think has enough qualifications to fulfill this moral obligation of peaceful society where in people can live in harmony.