F

Fuller, Lon Luvois A Pragmatic Definition of Law

Kenneth Winston In assessing Fuller’s exchanges with Hart (e.g.,

Harvard University, Cambridge, MA, USA Fuller 1958), many scholars observe that, while
Fuller had the more compelling view of law, Hart
displayed greater clarity and rigor in argument. In
particular, Fuller was faulted for conflating
Introduction
descriptive and evaluative elements (the is and
the ought) in his account of law. Yet Fuller’s
The most renowned legal theorist in the United
views on this issue are widely misunderstood,
States in the middle decades of the twentieth cen-
because they are judged in terms of conventional
tury, Lon Fuller taught contract law and jurispru-
theories of meaning and not placed in the Prag-
dence at the Harvard Law School from 1939 until
matist frame that guides his analysis. Of central
his retirement in 1972. He secured his place in
importance for Fuller is the practical nature of
legal philosophy in the 1930s with three articles
intellect. The human mind does not simply mirror
on legal fictions and probing critiques of legal
an external reality, any more than human obser-
realism. His work on the reliance interest, the
vation passively registers fixed properties of inde-
doctrine of consideration, and other aspects of
pendently existing objects. Knowers are active
contract law established him as one of the most
participants in the world – selective, goal-
innovative and influential theorists in the field by
directed, valuing. And objects of knowledge con-
mid-century. His hypothetical Case of the
nect in definite (if sometimes inchoate) ways to
Speluncean Explorers, an elegant portrayal of
human sentiments, purposes, and capacities.
rival judicial philosophies, is a classic of the
Given the practical nature of intellect, defini-
legal literature. And his published exchanges
tions of social phenomena are not compelled by
with the Oxford philosopher H. L. A. Hart, in
the way the world is. Indeed, the very idea of a
the 1950s and 1960s, set the terms of debate in
true or correct definition is misguided. No defini-
jurisprudence for several generations of students.
tion gives the essential nature of an object; rather,
In this brief entry, I will focus on four
there are diverse definitions, adopted by different
connected issues in jurisprudence that preoccu-
authors concerned about different parts or aspects
pied Fuller for much of his career: definitions of
of the phenomenon. This is especially so for social
law, the internal morality of law, freedom as law’s
categories like law, since their manifestation is
ideal, and forms of legal order.
historically contingent and variable. Law as cus-
tom and law as legislation are (or have been)
# Springer Science+Business Media B.V., part of Springer Nature 2018
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
https://doi.org/10.1007/978-94-007-6730-0_201-2
2 Fuller, Lon Luvois
realities, and any definition that excluded one or
the other would be arbitrary.
How then do we choose? What role does def-
inition play in inquiry? Like the Pragmatists,
Fuller regards ideas as anticipatory and action
guiding; they always mean something that does
not yet exist, an ideal presence absent in fact
(in William James’s phrase). To develop a
thought’s meaning is to determine what direction
it gives to human conduct. So, what is at stake in a
definition of law is that it leads us to act one way
rather than another. Accordingly, disagreements
about the meaning of law are not analytic or
conceptual disputes; they are disputes about
what kind of professional one ought to be (Fuller
1966, 2–4). Definitions of law (and conceptions of
legal philosophy) encourage us to ask: “How
would the adoption of one view or the other affect
the way a lawyer, judge, or law teacher spends the
working day?” The preferred thought is one that
awakens our active impulses and leads us to con-
duct ourselves better than we otherwise would
have done. In this way, Fuller captures the inter-
action and mutual dependence of law and a law-
yer’s professional ethos in the creation of legal
order.
Accordingly, a Pragmatic definition embodies
a teleological element combining the real and the
ideal. To have assurance that an ideal is practical,
it must be based on the experience of actual soci-
eties. At the same time, it cannot simply recapit-
ulate what already exists. Rather, it extrapolates
from existing patterns or tendencies and envisions
them as perfected in some way. The model then
offers a critical standpoint from which to assess
the ongoing activity and suggest improvement. Of
course, one must not be so overly impressed by
the ideal as to neglect the fact that the actual only
partly embodies it, and one must not be so overly
impressed by the real that one neglects the active
striving toward an ideal. On one side, law is not
simply reason or justice; on the other, it is not
simply the will of the sovereign or the interest of
a dominant social class. It is a question for inquiry
what the exact mix is at a given historical moment
(Winston 1986 and forthcoming).
The Internal Morality of Law
In this account, there is no illusion that the law at
any given time and place is anything other than
what it is. In fact, Fuller was inclined to dwell on
the way things can go wrong – the pathological
cases – including most famously the parable of the
hapless king Rex who nobly attempts to make
laws for his subjects and fails, in eight ways that
illuminate “the morality that makes law possible”
(Fuller 1969, 33–94). The tenets of this morality,
briefly stated, are: (1) generality: there must be
rules; (2) publicity: the rules must be made avail-
able to those expected to comply with them;
(3) prospectivity: the rules must typically be pro-
mulgated prior to when compliance is expected,
hence not retroactive; (4) clarity: the rules must be
intelligible; (5) non-contradictoriness: the rules
must not require conflicting actions;
(6) conformability: the rules must not require
actions that are impossible to perform; (7) stabil-
ity: the rules must remain relatively constant over
time; (8) congruence: the rules promulgated by
the lawmaker must be the rules actually adminis-
tered and enforced.
Why does violation of these principles consti-
tute moral failure? Given Fuller’s Pragmatist ori-
entation, the critical issue for lawmaking is how it
directs the application of human energies. Build-
ing on John Locke’s proposition that the good
legislator provides intelligent guidance to rational
beings, Fuller describes Rex’s aim – the aim he
failed to achieve – as subjecting human conduct to
the governance of rules. This aim is not chosen at
random. The use of rules is not instrumental to
some other objective that Rex has in mind; it is the
aim itself. Why? The brief answer is that
governing by rules involves recognition of citi-
zens as responsible moral agents, an idea that has
both a descriptive and a normative component.
Descriptively, it alludes to the capacity of citizens
to engage in practical deliberation and accept
responsibility for their actions, which they can
do when the consequences of law-conformity or
law-violation are clear and known ahead of time.
Normatively, it involves acknowledgment by the
lawmaker of the value of enabling citizens to
develop their moral competence and exercise
Fuller, Lon Luvois
moral agency. Thus, respect for the moral agency
of citizens is intimately connected to the prima
facie duties of the internal morality. For a law-
maker to acknowledge and act on these duties, and
thus govern by rules, is to stand in moral relation
to legal subjects.
Importantly, this morality of lawmaking
emerges from the character of the enterprise, not
an external source. It is not derived from a defini-
tion (or concept) but from imagining the activity
itself and what it takes to carry it out successfully.
The activity is carried out by certain officials – in
particular, legislators, but also, secondarily,
judges and lawyers. The lawmaker who labors to
make statutes intelligible, consistent, and prospec-
tive is fulfilling a moral responsibility to citizens
drawn from an understanding of why govern-
ments have statutes at all. Thus, the internal
morality of law consists in just those standards
that must be honored if the right relationship
between lawmaker and citizen is to be maintained,
as components of the institution’s distinctive
mission.
The Ideal of Freedom
Fuller understands that the internal morality of
law is neutral over a wide range of moral issues,
but it is not neutral in its view of human beings.
Rather, it is committed to the proposition that
human beings are, or can become, responsible
moral agents, and ought to be so treated by man-
agers of the legal order. How is this done? Fuller
offers two suggestions.
The first appears in the internal morality, in the
prominence Fuller gives to the requirement of
generality. By this, he has in mind not simply
generality of language, referring to classes of
actions and persons instead of specific individuals
or acts. Beyond that (and more controversially),
laws have the requisite generality when they do
not embody or reflect legislators’ preferences
regarding what is good or worthwhile. Law-
makers aim, rather, to set baselines or guideposts
and promulgate only such laws as allow or enable
citizens to choose their own ends – to pursue their
own good in their own way (to borrow John Stuart
3
Mill’s phrase) – with the sole constraint that each
individual’s freedom to choose ends must be com-
patible with the like freedom of others (Fuller
1969, 162, 207, 210). One could argue that this
is the true idea of the rule of law: Individuals are
governed by rules, not persons, only if the rules
are truly impersonal, not directives from law-
makers to citizens about they must or ought to
do. Thus, there is a special moral quality in
governing by rules if they are general in this
sense. Of course, this is an idealization of law in
a certain direction. By providing baselines – min-
imal conditions for citizens working out a satis-
factory life together – law, in Fuller’s view,
facilitates the release of human energies in mutu-
ally beneficial ways.
The second step in getting the relationship
right is Fuller’s focus on the legislator’s task of
providing mechanisms that enable citizens’
choices to become socially effective. The exercise
of effective agency – freedom, as Fuller under-
stands it – depends crucially on which institutions
exist and how they function. The upshot is that
freedom consists in the availability of the institu-
tional devices by which each citizen’s choices are
brought into meaningful relation with the choices
of other citizens. Underlining this point, it is strik-
ing that the only social mechanism Fuller dis-
cusses at length in his lectures on freedom is
voting – joining with others in this specific form
of decision making (Winston 2001, 316–327). He
does not talk about religious freedom or the right
to privacy; rather, he talks about a mechanism by
which citizens make choices together – in a dem-
ocratic, participatory way. Thus, to be free is to be
enfranchised in this broad sense; it is to be
empowered to participate in collective self-
government. This requires a kind of activist legis-
lature, in the sense that it has a distinct responsi-
bility to facilitate citizen engagement in the
processes of civic life.
The Study of Eunomics
Fuller’s understanding of the special affinity
between law and freedom reveals another respect
in which he departs from other authors, namely, in
4 Fuller, Lon Luvois
his commitment to legal pluralism. Law is not a
unitary phenomenon that takes the same form
wherever it appears. It consists, rather, of the
diverse set of social processes that yield authori-
tative rules or decisions – only a subset of which is
found, at least in a dominant role, in any specific
legal community. The main processes that Fuller
discussed at length are adjudication, mediation,
voting, legislation, contract, and managerial
direction (i.e., administration) (Winston 2001).
Each process has two principal components.
First, it has a characteristic structure that makes
it suitable for reaching a certain kind of outcome
(a decision, an agreement, a rule) and not others.
The idea of this structure serves to guide the
functioning of any actual institution in which the
model is operative. It is thus a limiting conception,
a principle of order for the arrangement of human
affairs within its domain. Second, its constitutive
elements include characteristic moral principles –
for example, impartiality (for adjudication),
equality (for contract), legality (for legislation) –
which specify the distinctive moral duties of offi-
cials, and perhaps others, who act within the
structure. These principles constitute the internal
morality of the process in question. (Thus, each
legal process has its own, distinctive internal
morality.) Like principles of due process, their
moral importance is largely independent of what-
ever connection they may have to desired
outcomes.
Although Fuller never offers a comprehensive
account of the forms of legal order, he coined a
term for the theoretical effort he envisioned:
eunomics, which he defines as “the science or
study of good order and workable arrangements.”
His essays on specific forms are his “exercises in
eunomics” (Winston 2001). Fuller views the
diverse forms dynamically, that is, not just as
determinate configurations of norms or rules but
as reasoned responses to problematic situations
common to human societies. This approach brings
out their moral as well as their purposive aspects.
Since people reflect on what they are doing, they
construct models of possible structures, which
then guide the emergence of specific practices
and provide standpoints for evaluating their suc-
cess. Thus, the models are focal points of human
striving; they embody moral aspirations and
define moral relationships. The central task of
eunomics is to describe these models in detail
and assess the possibilities for their realization.
The contextual factors that enhance or impair the
effectiveness of particular structures determine
whether or not an existing social problem can be
collectively managed, and how. We want to know
where a mechanism works and where it does not
and cannot be made to. Thus, eunomics is a
branch of moral sociology, involving evaluative
judgments about the interplay of means and ends.
It deals with the conditions for the effective pur-
suit of collective aims and ideals, as well as
criteria for assessing their appropriateness – and
for reconstructing them – in light of available
means.
Here, too, Fuller is concerned with what it
means to be a professional. One of his criticisms
of legal realism was that it turns lawyers into
masters of technique without regard to the values
they serve. For realists, law is a neutral means to
ends that originate outside itself. Realism thereby
excludes from the scope of professional responsi-
bility a lawyer’s duty to think about the values at
stake in alternative legal processes. This is con-
trary to what Fuller believes lawyers actually do,
which is to devise frameworks into which citi-
zens’ various interests can be accommodated in
ways that are fair, decent, and workable. Whether
arbitrating a dispute, drawing up a contract, or
drafting a statute, the common thread is problems
of human organization, and the crucial role of
lawyers is to serve (in one of his favorite expres-
sions) as architects of social structure. Such a
responsibility cannot be carried out without a
simultaneous focus on means and ends. Thus,
the lawyer’s job is not simply to think about
what legally can be done but about what ought
to be done, all things considered.
This is a very demanding view of the legal
professional. Is Fuller similarly demanding of cit-
izens? Does he expect institutional forms to gen-
erate moral outcomes without presupposing
certain qualities of citizens – civic-minded, well-
informed, self-restrained? Are institutional
arrangements meant to compensate for a lack of
virtue and intelligence? Fuller’s stress is on the
Fuller, Lon Luvois
limits of what law can do. With his special empha-
sis on fostering decency and fairness in human
relationships, Fuller is sufficiently confident in the
good nature of men and women to be optimistic
about their ability to achieve a program of living
together. This meliorism infuses his ideas of law
and democracy, and presupposes that conflicts can
be resolved through discussion and public
accountability. The role of law in these efforts is
more facilitative than directive. Instead of impos-
ing prescriptive rules backed by threats or micro-
managing administrative agencies, legislators
should ensure the availability of guideposts and
mechanisms by which citizens can exercise effec-
tive and responsible choice on their own. Thus,
Fuller is a theorist of private much more than of
public law, emphasizing voluntary forms of coop-
eration that enable citizens to develop the moral
dispositions necessary to becoming productive
members of society, including the capacity to
make effective and responsible decisions and to
practice a democratic way of life.
For this to work well, the affinities between
legal rules and social expectations must be close.
In some places, Fuller pictures law as emergent
out of social practices, the articulate or formalized
expression of pervasive and settled conventions.
Law then does not consist only of discrete and
readily identified official declarations; it is also
continuous with norms and understandings that
are inchoate and evolving. What lies beyond offi-
cial notice at any moment is broader and deeper
than, and gives shape and force to, what is evident
on the surface. This is not to say that legal rules
always do or should reflect existing social norms.
But law is embedded in social practices, and these
practices provide a critical resource for judges and
other interpreters of legal rules – a context of
expectations, social purposes, and principles for
deciding cases where the articulate law is indeter-
minate or pulls in opposite directions. Conversely,
the more decision making departs from everyday
understandings of fair and impartial treatment of
legitimate claims, the more it must rely on coer-
cive threats and hence the less authority it has. In
that state of affairs, positive law undermines
sociality.
5
Conclusion
In recent years, some philosophers have come to
believe, belatedly, that Fuller was right to reject
the dichotomy of is and ought and now embrace
their admixture, at least in certain contexts. They
realize the difficulty that arises when the analytic
distinction between fact and value is turned into a
metaphysical dualism. Hilary Putnam, for exam-
ple, observes that logical empiricism and positiv-
ism led philosophers astray; while not referring
explicitly to Fuller’s work, he has turned for
enlightenment to the writings of John Dewey,
who was one of Fuller’s principal intellectual
guides (Putnam 2002). Other recent writings of
importance include illuminating work on the
social underpinnings of legal order in everyday
human interaction (van der Burg 2014), and the
reform of legal institutions so as to better realize
democratic ideals (Aboulafia and Shook 2012) –
the core of Fuller’s eunomics project. It is heart-
ening to observe that we have entered a period for
rediscovering (Witteveen and van der Burg 1999)
and reclaiming (Rundle 2012) Fuller’s pioneering
work on legal morality – evident in books, sym-
posia, doctoral dissertations, and journal articles
in countries around the world, from North Amer-
ica, to the Netherlands, to China, and elsewhere.
Cross-References
▶ American Legal Realism
▶ Legal Pragmatism
▶ Procedural Natural Law
▶ Types of Legal Theory
References
Aboulafia M, Shook JR (eds) (2012) Contemporary prag-
matism. Rodopi, Amsterdam
van der Burg W (2014) The dynamics of law and morality:
a pluralist account of legal interactionism. Ashgate,
Farnham
Fuller LL (1958) Positivism and fidelity to law – a reply to
professor Hart. Harv Law Rev 71:630–672
Fuller LL (1966) The law in quest of itself. Beacon Press,
Boston. (Northwestern University Press, Evanston,
1940)
6 Fuller, Lon Luvois
Fuller LL (1969) The morality of law, rev edn. Yale Uni-
versity Press, New Haven
Putnam H (2002) The collapse of the fact/value dichotomy.
Harvard University Press, Cambridge, MA
Rundle K (2012) Forms liberate: reclaiming the jurispru-
dence of Lon L Fuller. Hart Publishing, Oxford
Winston K (1986) The ideal element in a definition of law.
Law Philos 5:89–111
Winston K (ed) (2001) The principles of social order:
selected essays of Lon L. Fuller, rev edn. Hart Publish-
ing, Oxford
Winston K (forthcoming) The ideal element in law
revisited. In: Modern German non-positivism: from
Radbruch to Alexy. Mohr Siebeck, Tübingen
Witteveen WJ, van der Burg W (eds) (1999) Rediscovering
Fuller: essays on implicit law and institutional design.
Amsterdam University Press, Amsterdam