Week 7 - Fuller's The Morality of Law

Failure at Lawmaking

The Eight Ways to Fail Rex's story shows eight ways that lawmaking can fail: having no rules, keeping rules secret, making rules retroactive, unclear rules, contradictory rules, impossible rules, constantly changing rules, and officials not following the announced rules. Retroactive laws are especially harmful because they cannot guide action and also threaten the reliability of all other rules.

Total Failure Means There Is No Legal System A complete failure on any one of the eight points does not just create bad law, it creates something that is not really a legal system at all. Government and citizens have a two-way relationship, so when government breaks its promise to apply the rules it announced, the citizen's duty to obey has nothing left to rest on.

Partial Breakdown, as in Nazi Germany Things get harder when legality decays without failing completely, as in Hitler's Germany, where key laws were unpublished, retroactive laws were common, and special courts ignored the rules. Citizens then had to decide for themselves whether obeying what remained of the law still made sense.

Loyalty to Rulers Is Not Loyalty to Law There is no simple test for when citizens must stay faithful to law, just as there is no simple test for when revolution is justified. Respecting whoever is in power is different from respecting law, since Rex's subjects stayed loyal to him even though he never made any law.

Aiming for Excellence in Legality Each of the eight failures has a matching ideal, and these ideals start as basic minimums and become harder to achieve the higher one aims. A perfect world where all eight are fully met is not a useful goal, but it still gives eight standards for judging how good a legal system is.

Inner Morality aligns with Duty toward Aspiration

The Law's Demands Are Positive, Not Just Restrictions Most everyday moral duties simply tell us what not to do, such as do not kill or deceive, and these are fairly easy to define. The law's inner morality instead requires positive effort, such as making laws known, clear, and actually followed.

Mostly an Aspiration, Not a Duty Because these demands call for achievement, it is very hard to say exactly when someone has failed them, such as how clear a law must be. The law's inner morality therefore works mostly as an ideal that appeals to lawmakers' sense of responsibility and their pride in good work.

Publication Is the Exception The requirement to make laws known is unusual because it can easily be turned into a formal rule, such as a constitution requiring publication before a law takes effect. A fixed rule like this tells lawmakers where to publish and tells citizens where to look.

Retroactivity Cannot Simply Be Banned It might seem easy to ban retroactive laws completely, but such a flat ban would actually hurt legality. The rule that laws should govern the future and not the past turns out to raise some of the hardest problems.

Courts and Constitutions Can Only Prevent Disaster For every requirement other than publication, constitutions and courts can at most protect us from total failure. They cannot force lawmakers to reach real excellence.

Weighing Costs and Benefits As we move from duty toward aspiration, weighing costs against benefits becomes a bigger part of moral decisions. This kind of balancing is out of place at the level of basic duty, but it is essential at the higher levels.

Stability Versus Needed Change Inner morality favors stable laws, but changing circumstances or values may require the substance of the law to change, sometimes often. Lawmakers must steer a middle course between too much change and none at all.

Eight Ideals Balancing and Clashing

The Eight Ideals Can Conflict With Each Other The eight ideals can also clash, for example keeping laws stable versus keeping them possible to obey during rapid inflation. In such cases a compromise that partly sacrifices both ideals may be needed.

The Polish Example A former Polish Minister of Justice told Fuller that early communist efforts to write laws simple enough for workers and peasants damaged the system's overall coherence. Simpler laws made court decisions less predictable, so a more balanced approach became necessary.

Generality Ideal #1

Generality, or There Must Be Rules The first requirement is simply that there must be rules. Some federal agencies, such as the Civil Aeronautics Board and Federal Communications Commission, hoped to build rules case by case like Rex and largely failed, because their tasks did not suit case-by-case decision-making

Generality Is Not the Same as Fairness The complaint about these agencies is not unfair rules but no real rules at all, which differs from the separate fairness idea that laws should not target named individuals. A system of rules can even govern one person, as when an employer gives an employee general guidelines and faces all of Rex's possible failures.

Rules Limit the Rule-Maker Too An employer who builds a working set of rules must invest effort, and that success also limits his own freedom. If he regularly ignores his own rules, the system may quietly fall apart.

Some Generality Is Always Present Total failure to generalize is rare, because even one command like telling a dog to "shake hands" involves some general understanding. Still, many legal systems suffer badly from a lack of general principles.

Legal Theory Has Neglected Generality Legal scholars have handled generality poorly, and Austin's attempt to separate general from particular commands misled later writers. His main mistake was mixing up what makes a legal system work with the separate question of what to call "a law".

What the Generality Requirement Means For Fuller, generality just means that governing conduct by rules requires having rules. It does not mean every official act, such as a court order against one person, must itself be a general rule.

Promulgation Ideal #2

Promulgation, or Making Laws Known Publishing laws is an old problem, but how far to go depends on balancing costs and benefits. It would be foolish to try to teach every citizen the full meaning of every law that might apply to them.

Shared Morals Reduce the Need How much education is needed depends on how far the law strays from common ideas of right and wrong. Since the common law mostly reflected widely held views, its being hard to look up mattered less.

What Counts as Law to Be Published Agencies often think they must publish the rules they apply but not their internal procedures. Lawyers know internal procedures often decide outcomes, which may explain why courts in Switzerland and Mexico must deliberate in public.

Why Publication Still Matters Even if only a few people read the laws, they deserve access, others follow their example, and publication allows public criticism and keeps officials in check. Most modern laws apply to specific jobs or businesses anyway, so no one expects the average citizen to read them all.

Limiting Retroactive Laws Ideal #3

A Purely Retroactive System Makes No Sense On its own, a retroactive law is a monstrosity, because you cannot guide today's conduct with rules made tomorrow. Retroactive laws can only be judged sensibly within a system that mostly looks forward.

Retroactive Laws as a Repair Tool Within such a system, retroactive laws can sometimes help legality by fixing things that went wrong. For example, if missing stamps made many marriages invalid without anyone knowing, a later law validating them repairs earlier failures of publicity and possibility of obedience.

“Curative" Laws Can Be Abused This does not mean retroactive laws are always fine when they fix "technical" problems. Hitler killed nearly a hundred people in the Roehm Purge and then passed a retroactive law calling the murders lawful executions.

Judges and Retroactivity A second side of retroactivity is that it is partly built into judging. A rule-based system does not strictly require courts, since in a small, friendly society disputes may be rare or settled informally.

Law Is Not Just for Settling Fights People often assume law exists only because humans are quarrelsome, so a society of angels would need none. But angels who needed deliberately made rules would need law too, and a King Rex could still bungle the job. Rex could still give angels particular orders that conflicted with his general rules. That could leave the general rules with no real power to guide.

Courts Must Decide, Even When Making New Law In a complex society courts are essential, because no law is so well written that disputes over its meaning never arise. When a judge resolves a genuinely unclear rule he is in effect making retroactive law, but refusing to decide would undermine the whole system

Overruling Precedents If a court overrules a precedent retroactively, it hurts the person who relied on it, but if it overrules only for the future, the person who challenged the bad rule gets nothing for the effort. That leaves private parties little reason to challenge bad precedents, although groups like unions with long-term interests may still do so.

Unclear Criminal Statutes in Particular Cases Courts treat settling an unclear criminal statute like a civil dispute, even though an acquittal leaves nothing unresolved. Fuller proposes that a defendant should not be convicted when the statute, as applied to his situation, was too unclear to give fair warning.

What Makes a Law Retroactive? The hardest question is deciding when a law actually counts as retroactive, and the clearest case is a law that criminalizes an act that was legal when it was done. Such laws are condemned mainly because criminal law is the area most directly aimed at guiding conduct.

Taxing Past Gains A 1963 tax on gains from 1960 may be very unfair, but it is not strictly retroactive. The only thing it requires, paying the tax, happens in the future.

The Law Cannot Be Frozen All kinds of laws shape people's plans about careers, marriage, family, and estates. If every reliance were protected against change, the entire body of law would be frozen forever.

Government as Party to a "Contract" The debate shows how hard it is to define retroactivity, and courts often ask whether the state effectively promised citizens to keep a rule such as a tax exemption. This idea of a deal between state and citizen can extend to all eight principles and echoes the old belief that broken government promises can justify revolution.

Obvious Abuses Are Easy to Spot Despite the hard cases, blatant abuses are easy to recognize, and they occur even outside dictatorships. A 1938 federal gun law tried to act retroactively by presuming that convicted criminals received their guns after the law took effect, and the Supreme Court struck it down

Clarity Ideal #4

The Clarity of Laws Clarity is one of the most essential parts of legality, but treating law as just a chain of command wrongly suggests only judges and police, and not legislatures, can violate legality. Unclear laws can make legality impossible, and being at the top of the chain makes the legislature's duty to be clear greater, not smaller.

Flexible Standards Can Be Clear Valuing clarity does not mean rejecting standards like "good faith" or "due care," which borrow common-sense judgments from everyday life. As Aristotle said, we cannot be more exact than the subject allows.

False Clarity and Delegation False precision can do more harm than honest vagueness, but lawmakers cannot always safely leave unclear goals to courts or agencies to work out. "Fairness" works in commercial law because merchants share practices, but not every conflict can be handled that way, so Hayek's blanket condemnation of vague standards needs refining.

An Unwritten Chapter of Jurisprudence Legal theory still needs to study when regulation can safely be left to courts with a fair hope that clear standards will emerge. A "wait and see" approach is not good enough for such basic questions.

Limiting Contradictions Ideal #5

Contradictions in the Laws Avoiding contradictions takes care, and it can be hard even to tell when one exists. Formal logic is little help, as shown by a law requiring new license plates on January 1 while another makes it a crime to work that day.

Contradiction Is About Purpose, Not Logic Ordering someone to do something and then punishing him for it makes no sense, but it does not break any rule of logic. It is pointless only if our goal is to guide a person's conduct with rules.

Reconciling Conflicting Rules Courts try to reconcile conflicting provisions, sometimes in odd ways. Old church courts handled a usurious (high rate on loan) promise made under oath by enforcing it and then immediately making the lender return what he got.

Letting the Citizen Choose A court facing the license-plate conflict could decide that one provision overrides the other. A better answer lets the owner install the plates on either the first or the second without breaking the law, since the statute's confusing direction is not his fault.

Conflicts Between Different Statutes When a newer statute conflicts with an older one, the usual rule is that the newer one wins. Reading the two together might sometimes be better, but courts would struggle to know where to stop, and doing so could create retroactivity problems.

Better Words for "Contradiction" Terms like "incompatible," "repugnant," or "inconvenient" fit better, because conflicting laws fight each other without necessarily cancelling each other out. Fuller's main lesson is that careless drafting that leaves statutes clashing harms legality, and no simple rule can undo the damage.

Context Determines Conflict Whether two rules conflict depends on outside context, since "cross the river but don't get wet" stopped being contradictory once bridges and boats existed. That context includes the full legal, moral, political, economic, and social setting, not just technology.

Avoiding Impossible Rules Ideal #5

Laws Requiring the Impossible It might seem no lawmaker would demand the impossible, but such laws can show subjects that anything may be demanded of them. Because the point is to guide practical effort, impossibility is treated separately from the other principles, even though they all relate to whether a law can be obeyed.

The Teacher Analogy A good teacher may ask more than students can deliver in order to stretch them, and lawmakers can be misled into acting the same way. Unlike a teacher, an official whose subjects fall short must either do injustice or quietly look the other way.

Requiring Fault or Intent for Liability Some argue that liability is fair only if the person intended harm or was careless, since otherwise the law demands the impossible. Taken to an extreme, this principle can end up demanding the impossible of lawmakers instead.

The Problem of Proving Fault An objective "reasonable person" standard may ask more than some people can meet, while judging each person's own limits risks losing objectivity and inviting bias. The law has to take a middle path, adjusting the standard for obvious limitations in fixed, formal ways.

The Problem of Proving Intent Intent is a private fact that must be inferred, and laws requiring proof that someone knowingly broke the law are very hard to apply. Juries may end up asking whether the defendant looks like "their kind," so the cure may be worse than the disease.

Liability Without Fault That Causes No Problem Some no-fault liability fits easily with legality, such as making a mentally ill thief return a stolen purse even though he cannot be blamed. Similarly, a creditor who innocently receives an overpayment must give it back.

Correcting Unjust Enrichment A large body of law corrects unfair gains caused by mistakes or lack of understanding, partly under "quasi contract". Labeling some of these cases as torts has confused the analysis, because wrongdoing is often irrelevant to them.

Rules That Repair Mistakes Nobody studies these rules to guide their conduct during a mistake, which might seem to challenge the view of law as guiding behavior. Like curative retroactive laws, these rules make sense only as a support for a larger system of rules meant to guide conduct.

Strict Liability for Dangerous Activities The law also imposes strict liability for some activities, such as blasting, even when no intent or carelessness is shown. In such cases people "act at their peril".

Strict Liability as a Kind of Tax This is justified because risky businesses should bear their real social costs, and otherwise they have less reason to use safer methods. Like a sales tax, strict liability adds a surcharge to an activity, and legality only requires that the covered activity be defined clearly

Strict Liability Cannot Cover Everything Despite talk of a trend toward strict liability, fault and intent will not disappear, because liability for all activities would destroy any sensible idea of cause. Examples like a poet's sad poem leading to a suicide show how impossible it would be to assign blame.

Hard Versus Impossible There is no sharp line between very hard and impossible. A rule that asks too much may be unfair without defeating the purpose of law, and in this middle zone the law's inner and outer moralities meet.

Jefferson and Compelled Belief What we consider impossible depends on beliefs about human nature that change over time. Jefferson opposed laws compelling religious belief because belief cannot be forced, which Fuller suggests may show deeper respect for truth and human abilities.

Consistency in Law (Not too much change) Ideal #6

Constancy of the Law Over Time The rule against changing laws too often is the hardest to put into a constitution, unlike bans on retroactive laws. Both problems come from lawmakers being inconsistent, as Madison recognized when he complained of fluctuating policy

Allowing Time to Adjust The Supreme Court has recognized that sudden changes cause harm similar to retroactive laws. For example, a deadline for filing suit may be shortened only if people are given reasonable time to adjust.

Congruence between Official Action and Declared Rule

Officials Following the Declared Rules Matching official action to the declared law is the most complex requirement, and it can be undermined by misinterpretation, bribery, prejudice, stupidity, and the drive for power. Fair-procedure protections such as the right to a lawyer, cross-examination, habeas corpus, appeals, and rules on standing help preserve it

Limits of Relying on Courts In the US, courts mainly keep official action in line with the law, which has the benefits of expertise and public visibility. But this depends on people being willing and able to sue, and it has worked poorly against police misconduct, where an ombudsman-type body might help.

High Courts Can Still Fail It might seem a top court cannot be out of step with law it makes itself. But it can still fail by producing unclear, contradictory, constantly changing, or retroactive rulings

Interpretation and Heydon's Case The subtlest part of congruence is interpretation, which should follow principles suited to an official's role, neither whim nor rigid literalism. Heydon's Case (1584) says judges should consider the earlier law, the problem it missed, the remedy chosen, and the reason for that remedy.

A Fifth Point Fuller would add a fifth question: how the people who must follow the law would reasonably understand it. The law should not trap those who cannot know its reasons as fully as judges do.

Statutes Are Usually Incomplete, Not Off-Target Lawmakers do sometimes completely overlook a situation. More often, though, statutes are simply blunt and incomplete rather than aimed at the wrong thing.

Gray's Mistaken View Remembering that a law aims to cure a social problem helps clear up confusion about interpretation, including Gray's claim. Gray said that hard cases arise only when the legislature never thought of the situation, so judges are really legislating.

Intent as a List of Specific Things Gray's view treats legislative intent as aimed at specific objects instead of general ideas. Under that view, applying a "dangerous weapons" law to a weapon the drafter never pictured would be "legislating," not interpreting.

The Unfinished Invention Fuller suggests imagining an inventor who dies leaving a rough sketch and asks his son to finish it. The son would first work out what problem the invention was meant to solve and its underlying principle, and then complete the design.

Being Faithful to the Inventor's Intent We cannot know whether the father had specific plans for finishing it, but the son was faithful by staying within the father's goal and approach. Likewise, a statute's drafter consulted on a hard case would ask the same questions a judge asks about the problem and the remedy.

Whose Intention? We talk about "the legislator's" intent although no such single person exists, and lawmakers and drafters often hold differing views. Just as the son could work from a stranger's design itself, it is better to speak of "the intention of the statute".

Creativity in Judging Is Not Good or Bad by Itself People often assume a faithful judge is passive, so creative judging gets praised or attacked as a power grab. Like the son, a judge must be creative to do the job, and he should be judged by the quality of what he produces.

When Statutes Are Badly Designed One might object that statutes have more complex purposes than a household gadget, but that is exactly where the analogy helps most. If a statute's purpose is too unclear or its remedy fundamentally mismatched to the problem, no skill in drafting or interpreting can rescue it

Finding balance between the ideals

Legality Is a Shared Effort Interpretation is too rich to cover fully, but it shows that maintaining legality is a cooperative task. Legislatures must not assign senseless tasks, interpreters must act in stable and rational ways, and no single actor can secure legality alone.

Legality as a Practical Art, and the Word "Law" Not every legislative act is the kind of "law" these principles address, as with a Massachusetts law naming the chickadee the state bird. Some acts, such as secret military funding, may justifiably be kept secret, but there is no excuse for hiding a law creating a new crime.

Shared Morals Lessen Some Demands When law simply reflects widely shared views of right and wrong, publicity and clarity matter less. Seemingly retroactive laws may also just confirm existing views, as when English courts caught up with commercial practice on certain contracts.

Priorities Vary by Type of Law How strictly the eight principles apply, and which matters most, depends on the area and type of law. Clear warning of duties matters more than knowing the exact penalty, and rules that grant legal powers need especially clear and public statement.

Aristotle's Lesson for Lawgivers Aristotle observed that knowing the effects of medicines is easy, but knowing how, when, and for whom to use them takes a physician. Likewise, the basic principles of legality are easy to state, but applying them in the right balance takes the skill of a true lawgiver.