In this study of the jurisprudence of American legal philosopher Lon Fuller, Kristen Rundle challenges the widespread assumption, at least among legal positivists, that Fuller lost his battle with H. L. A. Hart over what Fuller characterized as the inherent morality of law. Fuller's defence of the claim that the formal precepts of the rule of law amount to a genuine “morality of law” is set in the larger context of his work as a whole. Rundle's thesis is that Fuller can be understood as having identified a significant moral dimension, internal to the concept of law, even if further elucidation is needed to establish its specific character. Hart failed to perceive the importance of Fuller's insight or to grapple with its implications; legal positivists have under-estimated the strength of the case they have to meet. The project of “reclaiming Fuller” involves redressing the balance of an argument skewed by preoccupation with the connection, if any, between a rule's status as law and the morality of its substantive ends.
Before turning to the Hart–Fuller debate, which began with the famous exchange in the 1958 Harvard Law Review, Rundle examines Fuller's work on “eunomics”, or the theory of “good order and workable social arrangements”. Fuller's interest in legal form and its implications for the integrity of legal process is exemplified by his studies of adjudication, legislation, custom, contract, mediation and managerial direction—varieties of regulation whose specific forms have an intrinsic value beyond the merely instrumental. Reclaiming Fuller involves grasping Fuller's own ambitions for reclamation: “to reclaim the wisdom of resources long neglected by the field [of jurisprudence] that he thought might fruitfully illuminate a range of neglected questions, especially those relating to the institutional design of law and legal processes” (p. 48).
The author makes use of Fuller's archive—his working notes and papers held at the Harvard Law School Library—to shed light on his contribution to jurisprudence; and this adds a limited but interesting biographical dimension to the discussion. (The phrase “forms liberate” comes from a working note found among Fuller's papers.) Particularly interesting is Fuller's increasingly despondent reaction to criticism of his best known book, The Morality of Law, and his apparent sense of injustice at Hart's treatment of it. We learn that Fuller was distressed by Hart's somewhat selective quotation from the book in his review. Fuller's private correspondence reveals his frustration that Hart had mentioned the “pride of the craftsman” as the basis of the internal morality of law, omitting any reference to the “sense of trusteeship” that was part of Fuller's own formulation. Fuller feared that he was thereby represented as having conceded the purely instrumental character of his “internal morality”, obscuring his insistence on the inherent moral quality of law. Rundle observes that the attribution to Fuller of an instrumental viewpoint—efficacy as opposed to morality—has been “remarkably resilient”, distorting subsequent perceptions of the debate. She wishes to recover the idea of trusteeship, emphasizing the dual nature of law as grounded in considerations of both efficacy and morality.
Rundle is right to stress the centrality of legal form to Fuller's jurisprudence: we understand his numerous references to morality and purpose most clearly when we grasp the connection between legal form and the moral value of legality. The formal features of law—those aspects of formal and procedural justice that constitute the inner morality of law—are crucial to any clarification of our concept of law. They point to the special value of law over other means of governance, such as “managerial direction”, and thereby help to identify the distinctive concept of law itself. But what is that special value? The central theme of Rundle's book is the connection between law and agency: rule by law acknowledges the agency of its subjects in a manner unique to that mode of governance. Law's formal attributes do not only impose responsibilities on the law-giver; they “also rely upon a particular conception of the legal subject as someone who must possess the necessary responsible agency to be able to interact with general rules, and the conditions through which they are communicated, in the first place” (pp. 9–10).
It is far from clear, however, that this general idea of agency can do the work Rundle supposes. Even managerial direction, which may include the giving of instructions about how to execute particular tasks, relies on a notion of agency in the sense that the recipient must be capable of understanding what is required and of choosing to comply rather than disobey. The special emphasis Fuller gives, in the “Reply to Critics”, to the principles of generality and faithful adherence by government to its own declared rules points to a fundamental contrast between functions. Whereas managerial direction is designed to accomplish tasks set by a superior, law is “basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another, the role of government being that of standing as a guardian of the integrity of this system” (The Morality of Law, p. 210). Fuller seems here to identify the rule of law with the maintenance of a system of private law, underpinning the health of civil society.
Rundle's reading of Fuller expands the basic idea of agency, or responsibility, far beyond anything simply implicit in the various formal precepts of legal morality: “Fuller's legal subject … is not just an individual possessed of choices, or a planner with regard only to her own interests, but, akin to the Greek conception of the citizen, is envisaged as an active participant in the legal order” (pp. 99–100). The existence of law, on this account, depends on the continuing disposition of the individual citizen to acknowledge its entitlement to obedience. The necessary “bond of reciprocity” between lawgiver and subject may be ruptured: “The agent who animates Fuller's conception of the legal subject … is someone not just capable of following the rules laid down for her by a lawgiver, but someone capable of voluntarily and actively conveying the level of support towards the legal order that is necessary for it to exist.”
In Rundle's account, the relevant conceptual links between law and morality consist in the “ethos of the lawgiver's role and the distinctively moral burdens which that role carries”, and in the “moral value that accrues to the legal subject, as a consequence of law's presupposed acceptance of and respect for her as a responsible agent” (p. 101). But it is very hard to see how, as the author suggests, these moral dimensions “simply come with the territory of law itself, as an enterprise of governance conducted through the issuance and administration of general rules, irrespective of the specific ends, moral or immoral as they may be, that might be pursued through those rules”. To the contrary, they come with the territory only if we have in mind, as it seems Fuller had in mind, the role of private law as a means of impartial arbitration of disputes between persons, who are permitted or encouraged to pursue their own individual ends as citizens of a free republic. It is in that context that Fuller's resistance to the antithesis between efficacy and morality makes most sense.
There is, then, a larger gap to be filled between Fuller's ideas about form and agency to make sense of his endeavour that Rundle appreciates; and it follows that the contrast she draws between Fuller and Dworkin, favourable to Fuller, may also need reappraisal. Rundle is no doubt to right to observe that Dworkin neglects the special importance of legal form, apparently ignoring or misunderstanding the moral significance of the formal precepts of the rule of law. And her contrast and comparison is fair and nuanced: similarities and overlaps are identified as well as differences. Rundle is also right to question Dworkin's apparently dismissive designation of Fuller's jurisprudence as “sociological”, overlooking Fuller's contribution to elucidation of the aspirational and doctrinal concepts of law (as Dworkin maps out the jurisprudential terrain).
If, however, contrary to Rundle's analysis, Fuller cannot ground the morality of law in a distinctive form alone, she cannot plausibly maintain that Fuller's account of law is in some sense prior to, or more fundamental than, Dworkin's. Nor is it true that Dworkin's account of law is, like Hart's, “top-down” in the sense that “the legal subject gains her status, as an equal to fellow citizens, if law meets the conditions of integrity” (p. 182). On the contrary, law that fails the conditions of integrity is not law at all on Dworkin's conception: it is at most “pre-interpretive” law, awaiting construction as moral principle dictates. Nor, strictly speaking, do we “come to know the legal subject within Dworkin's jurisprudence” mainly through “the vision of the judge, discharging his role morality as a judge”. Here Rundle overlooks Dworkin's protestantism: each citizen is finally his own judge of what the law, correctly interpreted, actually requires. For both theorists, the status of the individual citizen is the product of a certain attitude to law, one that invokes liberal political values of equality and freedom.
An attractive route to profitable reconstruction of Fuller's work would displace the general notion of agency by the idea of freedom as independence (compare Nigel Simmonds, Law as a Moral Idea (Oxford, 2007)). When the various precepts of the internal morality of law are honoured, the citizen enjoys an immunity from domination: he is secure from arbitrary official interference, asserted beyond the strict confines of the terms of ascertainable general rules. (A similar value may be thought to underpin private law, precluding domination of some people by others, whether powerful individuals or groups.) The value of freedom, in that republican sense of non-domination, is what explains Fuller's intuition (mentioned by Rundle) that slavery is inconsistent with law: the slave, however well treated by his master, lacks the independence of the mere will of other persons that law provides.
Rundle rightly questions the coherence of Joseph Raz's conception of law, in which the rule of law is alleged to be compatible with the institution of slavery. She highlights the various tensions within Raz's account of the rule of law, which is declared on the one hand to uphold human dignity by treating the subject as an autonomous agent capable of planning her future, but on the other to constitute law a neutral instrument for good or ill, compatible with slavery. These tensions are heightened, as Rundle explains, by Raz's arguments about the authority of law, where the “normal justification thesis introduces the figure of a robust agent who is capable of assessing the extent to which her own reasons for action will be better realized” if she follows an authority's directions (p. 156). While it is valuable to underline these tensions or contradictions, however, the replacement of agency or autonomy with freedom as independence would serve to show more precisely where legal positivism founders.
There is much of interest in this book for any legal philosopher. It is good to see the various elements of Fuller's work brought together as a larger interconnected project; and the interweaving of published and unpublished material is a useful aid to deeper appreciation and understanding. If Rundle has not succeeded in reconstructing Fuller's work in a way that truly fulfils its ambitions, she has at least helped to reinforce its proper place at the heart of twenty-first century jurisprudence.
