Positivism III - Fuller

Internal Morality of the Law

Objective/Aim

A system only counts as “law” in a serious sense if it follows certain basic rule-of-law conditions that make rules usable and fair.

Fuller says law should usually be:

1. General (not targeted at one person)

2. Public (not secret)

3. Prospective (not retroactive)

4. Clear

5. Non-contradictory

6. Possible to follow

7. Relatively stable

8. Actually followed by officials (congruence: practice matches the rule)

8 Principles of Legality

Fuller says law should usually be:

1. General (not targeted at one person)

2. Public (not secret)

3. Prospective (not retroactive)

4. Clear

5. Non-contradictory

6. Possible to follow

7. Relatively stable

8. Actually followed by officials (congruence: practice matches the rule)

8

Fuller says law should usually be:

1. General (not targeted at one person)

2. Public (not secret)

3. Prospective (not retroactive)

4. Clear

5. Non-contradictory

6. Possible to follow

7. Relatively stable

8. Actually followed by officials (congruence: practice matches the rule)

8 Principles of Legality

Fuller says law should usually be:

1. General (not targeted at one person)

2. Public (not secret)

3. Prospective (not retroactive)

4. Clear

5. Non-contradictory

6. Possible to follow

7. Relatively stable

8. Actually followed by officials (congruence: practice matches the rule)

Why Principles are called “morality”

Because these principles respect people as agents: they let you know the rules and plan your life. If the government uses secret or retroactive rules, it’s not really governing through law; it’s governing through arbitrariness.

• Respect human dignity

• Enable freedom: clear, stable rules allow meaningful choice 

• Create reciprocity of mutual respect between the state and its citizens 

  • State to provide clear, stable rules 

  • Citizens' duty to follow those rules 

  • Breaches from either side undermine the legal system

Nazi Law Point

Fuller uses Nazi legal examples to show: a regime can be “rule-like,” but if it violates legality (secret law, retroactive punishment, arbitrary enforcement), the system loses legal integrity.

Strengths / Weaknesses

Strength: gives you a clean checklist to criticize unfair legal systems without needing to prove the content is immoral first.
Weakness: a system can follow these 8 principles and still be substantively evil (procedural morality doesn’t guarantee justice).

Law as a Cooperative Effort

• It isn't a set of commands from the state to citizens, but a collaborative project between 

  • Lawmakers who create rules 

  • Citizens who follow rules

  • Judges who apply/enforce the rules

Fidelity to Law

• Hart argues that morality and law are separate, yet asks for fidelity to the law (moral obligation to obey). This is a contradiction as fidelity is a moral principle. 

• Why have a moral obligation to follow the law unless the law itself embodies values worth respecting