Fuller’s Procedural Constraints: A Poor Test of Legal Validity

260669707 PHIL348 TA: Mathieu Baril October 6, 2017 Fuller’s Procedural Constraints: A Poor Test of Legal Validity In his work The Morality of Law, Lon L. Fuller argues that all purported legal rules must meet eight procedural conditions in order to function as genuine laws and impose an obligation of obedience on members of a society. In this essay, I begin by examining Fuller’s philosophy of law, contrasting it with positivism and natural law theory, before denouncing his conception of a proper legal system as inaccurate. I first demonstrate that legal systems may comply with all eight of Fuller’s precepts yet promote practices far too unjust and oppressive to deserve the legal obedience his theory demands. I then show that Fuller’s theory fails to explain the mutability of law, or why legislative measures are nullified and replaced in accordance with shifting moral attitudes. Because Fuller’s philosophy allows for grossly immoral measures to be legitimized and cannot explain legislative reform on account of moral principles, his theory provides an inaccurate account of what constitutes a proper legal system.

Revealed through a tale of King Rex who fails to make law, Fuller identifies eight procedural constraints which together compose his definition of law and legal morality. These constraints state that laws must be general rules, published, not retroactive, comprehensible, not contradictory, demanding only of what is possible, constant over time, and observed by courts. A total noncompliance with any one of these constraints results not simply in a bad system of law to Fuller, but “something that is not properly called a legal system at all” (39). The satisfaction of these eight conditions therefore determines the legitimacy of a legal system as well as what

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Fuller terms the “internal morality” of law. Fuller’s notion that a law is moral when complying with the correct legal framework poses a direct challenge to a theory held by his rival, H.L.A Hart. As a positivist, Hart writes in his work The Concept of Law that no necessary connection exists between law and morality, and that fidelity to the law is a purely amoral practice. Fuller rejects this positivist doctrine, known as the separation thesis, with his belief that, unless a law complies with his restraints and is internally moral, it cannot be valid. Furthermore, Fuller holds that fidelity to law includes a moral component: “Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist or is kept secret from him…” (39). The obligation to obey law is therefore a reciprocative act on Fuller’s account. Because citizens recognize that rules possess an order that is internally moral, they in return feel morally obliged to obey them. While contesting Hart’s separation thesis, Fuller is not a natural law theorist. Natural law theorists judge the content of a law according to objective moral precepts, whereas Fuller contends that the morality of a law resides in its legal framework.

Fuller’s account therefore views the satisfaction of eight procedural constraints as a requisite for both legitimacy and morality.

By demonstrating that Fuller’s theory allows for unjust and oppressive practices to be regarded as law, I argue that his conception of legal validity is misconstrued. Slavery was a legal system that targeted and disadvantaged a specific group of individuals. The slave codes included an inundation of oppressive measures, some restricting slaves from access to a fair trial, the right to self-defense, and even the freedom to learn how to read or write. While one of Fuller’s procedural constraints includes the requirement that laws be in the form of general rules, slaves were regarded as chattel at the time of slavery. Since slaves were not regarded as citizens and !2

only citizens’ rights are protected under the aegis of the Constitution, the practice of slavery could be viewed at the time as nondiscriminatory, or a general rule. Under Fuller’s account of procedural morality, slavery could therefore be understood as a valid legal system despite the fact that the slave codes violate basic principles of justice. Another example of an oppressive law that nonetheless satisfies Fuller’s eight conditions includes Section 375 of the Indian Penal Code, which considers forced sex in marriages a crime only when the wife is below the age of fifteen. This law corresponds with the legal framework Fuller requires, yet commits Fuller to accepting marital rape as a legally valid practice along with slavery. His theory also implies that, since these measures are internally moral, citizens possess a reciprocative moral obligation to comply with them. I argue that Fuller offers an inaccurate account of legal validity if grossly unjust measures such as rape and slavery can be rendered both legitimate and deserving of moral fidelity purely on the basis of their framework.

By evaluating the procedural structure rather than the substance of law, Fuller’s definition of legitimacy also fails to explain the mutable and evolutionary nature of legal systems and must therefore be deemed an inaccurate theory of law. Generations ago, a parent could physically abuse a child as an act of discipline without breaking the law. Legal measures passed to prevent parental abuse can be explained only in virtue of a new moral attitude regarding the appropriate treatment of children. Child labor legislation demonstrates in a similar fashion how laws adapt over time to meet new considerations on what constitutes justice and morality. Furthermore, when a new animal-testing regulation declares it unlawful to practice vivisection on primates, the law adapts to a new moral perspective regarding the just treatment of animals. Because Fuller views legal validity as resting in the framework not the content of a law, his theory provides no !3

explanation for why procedurally moral laws such as the ones aforementioned are nullified and replaced. Fuller’s philosophy therefore fails to account for the nature of legal systems, specifically how legislature adapts to new moral sentiments.

A proper and moral legal system to Fuller is one with laws satisfying all eight of his necessary procedural conditions. While not a natural law theorist, Fuller argues against Hart’s separation thesis with his position that properly formulated laws possess an internal morality, which then imposes an obligation of obedience. By demonstrating that Fuller’s theory demands obedience to unjust practices, such as slavery and marital rape, I argue that Fuller’s legal framework cannot serve as a standard for what constitutes valid law. I then show that Fuller’s jurisprudence provides an inaccurate account of how legal systems actually function, since laws satisfying Fuller’s conditions may be nullified and replaced on account of moral considerations.

Overall, Fuller’s theory of law and internal morality serves as a poor test of legal validity.

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