Katrina P.

Tabu JD 4103 Philosophy of Law

I.

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

arguments:
Lon L. Fullers revolutionary legal philosophy identifies and explores what he
describes as the inner morality of law. In his leading work, The Morality of
Law (1964), Fuller sets out a powerful and distinctive argument for laws
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.
In The Morality of Law, Lon L. Fuller argues that law is subject to an internal
morality consisting of eight principles: (1) Rules must be expressed in
general terms; (2) Rules must be publicly promulgated; (3) Rules must be
(for the most part) prospective in effect; (4) Rules must be expressed in
understandable terms; (5) Rules must be consistent with one another; (6)
Rules must not require conduct beyond the powers of the affected parties;
(7) Rules must not be changed so frequently that the subject cannot rely on
them; and (8) Rules must be administered in a manner consistent with their
wording.
On Fuller's view, no system of rules that fails minimally to satisfy these
principles of legality can achieve law's essential purpose of achieving social
order through the use of rules that guide behavior. A system of rules that
fails to satisfy (2) or (4), for example, cannot guide behavior because people
will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are "internal" to law in the sense that they
are built into the existence conditions for law: "A total failure in any one of
these eight directions does not simply result in a bad system of law; it results
in something that is not properly called a legal system at all" (Fuller 1964, p.
39).
These internal principles constitute morality, according to Fuller, because law
necessarily has positive moral value in two respects: (1) law conduces to a
state of social order and (2) does so by respecting human autonomy because
rules guide behavior. Since no system of rules can achieve these morally
valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller's view, that they constitute a morality. Since

Katrina P. Tabu JD 4103 Philosophy of Law

these moral principles are built into the existence conditions for law, they are
internal and hence represent a conceptual connection between law and
morality that is inconsistent with the separability thesis.
Fuller also believes that ultimately the law has a moral end: reciprocity.
Therefore the means of achieving this end (the 8 principles of legality) have
a moral value in themselves and will only work for morally good practices.
The practice of poisoning someone cannot be justified as being morally valid,
and so the means of doing so have no moral value. Therefore, Fullers theory
cannot be applied in order to justify immoral means.
All in all, despite the substantial controversy which it has famously provoked,
Fullers position on the affinity between law and morality is a powerful,
original and thought-provoking one. Fullers functional test for determining
the validity of law cannot be dismissed. He puts forwards a solid theory
which firmly defends the notion that there is a definite and inescapable link
between the concepts of law and morality. The eight principles of legality
provide order, coherence and clarity to a system of law, which clearly has an
inherent relationship with morality and justness as it helps to bring about the
key purpose of the law: reciprocity.
II.

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

Dwrokin criticized the following arguments made by Fuller: (1) violation of

the canons is generally a moral wrong, just as breaking promises is generally
a moral wrong; hence the canons, like rules about promise-keeping, state
moral principles; (2) law cannot be established and maintained, as the
history of Rex shows, without at least a minimal observance of these canons;
(3) therefore law cannot be established and maintained without a minimal
observance of moral principles, without a minimum of moral behavior in the
sense in which promise-keeping, as such, is moral behavior."
Dworkin claims that there are two errors in those arguments. The first lies in
concluding from real and imagined cases of official wrongdoing that the
canons themselves express moral principles. It is morally wrong for an official
to harm a citizen groundlessly, to insult him unfairly, or to accuse him
unjustly. Those occasions of defying the canons. Dworkin believes that when
a violation of the canons is immoral, it is because it offends such moral
duties. Further, Dworkin added that the law involves such acts are occasions
of moral wrongdoing, but they are so because they have these consequences
and not because the canons are themselves moral standards. Thus, when
failure to meet the canons does not involve such consequences, it has no
moral flavor at all. A legislature adopts a statute with an overlooked

Katrina P. Tabu JD 4103 Philosophy of Law

inconsistency so fundamental as to make the statute an empty form, leaving

the law as it was before. Failure to produce a law is not in itself a moral fault
(the statute, without the negating inconsistency, might have been wholly
beneficent, but it also might have been wicked). Indeed, the more serious is
the flaw in the procedure, the more clearly the attempt at legislation will be
seen to have failed, and the less chance there is that any particular social
consequences will follow. If the inconsistency mars the law, but does not
destroy it, the resulting confusion will be greater; but even so the mistake
need not involve morality any more than any other legislative error.
Dworkin states that the second error in the argument is that if we shall
accept Fuller's canons as expressing moral principles in the sense that a
clear-cut violation is as such a morally wrong act, lawmaking requires some
minimal- compliance with these canons, it does not follow that lawmaking
requires compliance with moral principles. One can, of course, comply with a
principle for good or bad reasons. People who keep promises because of fear
of the person promised rather than respect for the promise-keeping principle
are still complying with that principle. But not every act which in some literal
sense falls under a principle is a case of observing it. Correctly answering a
spelling quiz is not (observing the moral requirement of) telling the truth.
Making a contract at bridge is not (complying with moral standards of)
promise-keeping. Sending a carefully worded ransom note to a kidnap
victim's parents is not (adhering to a moral code of) giving fair warning.
For Dworkin, the concept of a conventional morality serves the function of
qualifying moral standards for all these uses, by placing them beside more
traditional law in the background of public standards against which the
community conducts its affairs. Lastly, Dworkin emphasized that if we
abandon the concept we buy relief from its perplexities, but at the cost of
having to explain and justify without it the uses of morality in law.
Dworkin started by critiquing Hart, but then moved to develop own theory.
So must first understand
Dworkins criticism on Hart:
Dworkin takes issue with Harts insistence that law develops entirely in
reference to rule of
recognition, and by way of Rigss v Palmer (if we understand the rule of
testaments to be the principle that acts of legislature (in this case
regarding wills) tells us that law develops in relation to legal principles which
are different from rules in 3 ways:
1. Rules apply in all or nothing fashion, if rule applies, must decide that way.
Principles guide decisions but dont give conclusive reason.

Katrina P. Tabu JD 4103 Philosophy of Law

2. Valid rules cannot conflict and conflict must be remedied, valid principles
can conflict.
3. Because can conflict, principles have dimension of weight that rules do not
have.
III.

Hart's separation of law and morals

Legal positivism for H.L. Hart generally means that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done so. Hart stated that law and
morality are very close, though not necessarily related. He is deeply
sympathetic to what he calls "the core of good sense of natural law" and
believes that law should continually be subject to moral scrutiny.
For Hart, impartiality in rule application is a moral standard which is
necessary in a legal system. Thus, any judge applying a particular legal
rule is expected to do so uninfluenced by, to use Hart's words, "prejudice,
interest, or caprice."
Hart does believe that law and morality have a very close relationship.
Individuals often use moral language in explaining the justification for
obeying the law. And public officials use moral language to explain and
justify why they legislate, enforce, and adjudicate the law.
Hart refuses to take the final step and find that morality is a necessary
condition of legal validity. Hart asserted that it is more important for a
philosopher to offer an accurate description of a legal system than to
prescribe a method of invalidating laws on moral grounds. Hart believes
that there must be a strong correlation between a philosophical analysis
of law and the way law actually operates in the real world.
Hart emphasizes that law is morally relevant; it is not morally conclusive.
Laws exist because they meet legal structural standards necessary for a
particular social rule to be called a law. Once enacted the law is still
subject to moral scrutiny. If a law is immoral, a question arises as to
whether the law ought or ought not to be obeyed.
Hart's legal position and his critical morality are consistent with each
other. Hart, the legal positivist, develops a model of law which he believes
is both philosophically defensible and in accord with the way law is
practiced in the real world. Hart implores both judicial officials and
ordinary citizens to require that the legal system meet an acceptable
standard of morality in both its content and application. Hart strongly
believes that the law should be constantly subjected to moral scrutiny by
society. If certain laws do not meet such a standard or, in a more extreme
case, the legal system itself does not meet an acceptable moral standard,
an appropriate course of conduct must be determined. For Hart, this is

Katrina P. Tabu JD 4103 Philosophy of Law

when hard choices must be made. Of course, morality should affect legal
validity. Tragically, there are occasions when it does not. Only a simple
person would claim there are simple answers. Hart knows this, and in this
respect develops a theory of law based on sound moral principles.
IV.

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.
Robert Adams has written with exceptional clarity and insight about the
concept of moral obligation, arguing that a theory according to which
moral obligation is constituted by divine commandsis the best theory on
the subject for theists . There is reason, however, to hope for a theory of
moral obligation that could be accepted by theists and non-theists alike.
One common way to think of moral obligation is by analogy to legal
obligation, and to think of both on the model of commands. We have a
legal obligation to do something if we are required to do it by law, where
law in turn must be issued by an appropriately authoritative person or
group a sovereign perhaps, or a duly elected legislature. If moral
obligations are to be understood as commandments, however, there is a
question about who is doing the commanding. The two most obvious
candidates God and society are both deeply problematic.
When thinking and talking about what others in our society should do, our
failure to distinguish the two strands of our use of moral obligation has
two other unfortunate effects. First, we are apt too readily to move from a
conviction that people have decisive moral reasons to act in certain ways
to a willingness to blame them for failing to act as we think they should.
We are apt, in other words, to be overly moralistic and judgmental.
Second, by allowing ourselves to move directly from judgments about
what individuals have decisive moral reason to do to judgments about
what it would be appropriate to blame them for not doing, we may locate
the source of our moral dissatisfaction in the wrong place, and thus fail to
see what we ourselves have moral reason to do.
Specifically, we may fail to see the situation as one that calls not for
private moral judgment but for public moral action. If we believe that
people have decisive moral reason to act in ways that society nonetheless
does not demand of them, it may be that what is needed is that we work
toward bringing it about that society does demand it. By writing editorials,
campaigning for social change, raising public awareness, we can raise the

Katrina P. Tabu JD 4103 Philosophy of Law

moral bar that is, we can help to bring it about that behavior that is
currently not morally obligatory becomes so.
Yet this is not always desirable the category of the morally obligatory is
meant to balance societys interest in enforcing conformity to certain
rules against an interest in protecting people from too many restrictions in
how they choose to live their lives and pursue their goals. The moral bar
may thus be set either too high or too low. Still, by recognizing the
difference between what our moral obligations are and what there is
moral reason to want them to be, we may have a better chance of
evolving.
Yet the moral obligation to obey laws can be attributed to the aim of
promoting social justice. From Rawls A Theory of Justice, he mentioned
that justice does not allow sacrifices imposed on a few to be outweighed
by the larger sum of advantages enjoyed by the many. Injustice is allowed
only to prevent a greater injustice. "A set of principles is required for
choosing among the various social arrangements which determine this
division of advantages and for underwriting an agreement on the proper
distributive shares. A good society is 1) everyone accepts and knows that
others
accept
same
principles
of
justice.
2) the basic social institutions generally satisfy and are generally known
to satisfy these principles. 3) And this public conception of justice is a
fundamental charter of a well ordered human association. Existing
societies are seldom so well ordered, because what is just and unjust itself
is in dispute. But everyone agrees need for a characteristic set of
principles for assigning basic rights and duties. Some measure of
agreement in conceptions of justice is not only prerequisite for viable
human community, like (1) plans of individuals (2) that lead to
achievement of social ends and (3) stable. But all three of these things
need certain agreement of justice.
There lies an assumption that the presumed law-abiding majority is
nothing but a cosy myth, says Londons Times newspaper. Most Britons
admit that they obey only the laws they want, when they want. Research
for the Centre for Crime and Justice Studies at Kings College, London,
reveals that the majority of offenders come from the respectable core of
society. One third of those questioned pay cash to avoid taxation, one
third keep the money if given too much change and one fifth admit
stealing at work. Researchers conclude that this behavior is indicative
of the moral state of societyperhaps much more so than violent and
street crime.

Katrina P. Tabu JD 4103 Philosophy of Law

In my opinion, there is a moral obligation for us to obey the law and

secular authorities enforcing them since it is in line with public order,
public policy and morals.

References and other readings:

Dworkin, Ronald M., Law's Empire (Cambridge: Harvard University
Press, 1986)
Dworkin, Ronald M., Taking Rights Seriously (Cambridge: Harvard
University Press, 1977)
Fuller, Lon L., The Morality of Law, Revised Edition (New Haven: Yale
University Press, 1969)
Fuller, Lon L., "Positivism and Fidelity to Law--A Reply to Professor
Hart," 71 Harvard Law Review 630 (1958)
Hart, H.L.A., The Concept of Law, Second Edition (Oxford: Clarendon
Press, 1994)
Hart, H.L.A., "Positivism and the Separation of Law and Morals,"
71 Harvard Law Review 593 (1958)
Susan Wolf, University of North Carolina , Chapel Hill