PRINCIPLES OF LEGALITY: QUALITIES OF LAW

LON FULLER, ST. THOMAS AQUINAS,

ST. ISIDORE OF SEVILLE

ROBERT HENLE

Lon Fuller, in the second chapter of his book, The Morality of

Law,1 develops eight "principles of legality" which he says constitutes
the "inner morality of law." Most reviewers were favorably impressed
by these principles and Fuller's very insightful discussion of them.2
They generally agreed that this was the most important part of his

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book and some said it made a significant contribution to the literature
of jurisprudence.3 However, all of the reviewers found difficulty in
calling these principles a "morality of law."4
We can get some understanding of how Fuller considers these
principles by reflecting on his comparison with the art of carpentry.5
The carpenter follows rules and carries out procedures which are
dictated by the nature of the materials and instruments with which
he deals. A carpenter has an obligation to follow these guides and
so they can be called a morality that makes carpentry possible.
Furthermore, this art of carpentry is incompatible with shoddy work
and also neutral with regard to the ultimate purpose of construction.
Thus, he can use the art to build a school, a residence, a library, a
prison, and so on.
Fuller also applies to these principles the theory of the two moralities
which he describes in his first chapter.6 In that chapter Fuller
distinguishes between a morality of duty or obligation and a morality
of aspiration.7 The morality of duty includes all those basic rules
which are necessary to have a viable society: Do not steal, Do not
murder, Keep your promises. This morality lies at the bottom of an
imaginary scale8 of morality; as we go up the scale we reach an

1. Lon Fuller, The Morality of Law (1964).

2. Ibid, pp. 243-44.
3. For a favorable review see James B. Brady, 43 Tex. L. Rev. (1964), pp.
258-59.
4. For a highly critical review see Richard Wasserman, 19 Rutgers L. Rev.
(1965), pp. 581-86.
5. The Morality of Law, p . 96.
6. Ibid., pp. 4-6.
7. Ibid., pp. 41-44.
8. Ibid., pp. 9-13.

47
48 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
indeterminate point at which the morality of aspiration appears. In
this morality the human person reaches for excellence and the highest
development of which human nature is capable. This is an area of
freedom, for no law can order people to be heroes or saints or
brilliant scientists.
Now the primary purpose of this paper is not to analyze or defend
Fuller's principles. The primary purpose is to do an analytical
comparison between Fuller's principles and parallels in St. Thomas
Aquinas and St. Isidore of Seville. However, the discussion may

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indeed throw new light on Fuller's internal morality of the law.
Towards the end of The Morality of Law, Fuller makes this
observation:
in the reorientation that seems to be taking place, one hopes that
there will develop a little more tolerance for, and interest in, the
great tradition embodied in the literature of natural law. One will
find in this literature much foolishness and much that is unac-
ceptable to modern intellectual tastes; one will also find in it
practical wisdom applied to problems that may broadly be called
those of social architecture. St. Thomas Aquinas stands for many
as a kind of symbol of all that is dogmatic and theological in the
tradition of natural law. Yet as one writer has recently pointed
out, Aquinas in some measure recognized and dealt with all eight
of the principles of legality discussed in my second chapter. I
know of no writer in the positivist vein who has concerned himself
in more than a perfunctory way with the general problem of
achieving and maintaining legality.9
This text gave rise to the question to be investigated in this study*
Does St. Thomas actually deal with Fuller's eight principles of,,
legality as Fuller himself suggests in this text? If so, can we find the
appropriate discussions in St. Thomas and match them with the eight
principles? The agreements and the disagreements (if any) we find
may be interesting and enlightening.
By the time Fuller wrote The Morality of Law he was quite familiar
with St. Thomas Aquinas' Treatise on Law10 as his intelligent references
to the Treatise indicate. We might assume, therefore, that Fuller, in
the above text, is thinking of discussions in St. Thomas' Treatise.."
If so, can we find the appropriate discussions in St. Thomas' Treatise
and pair them with the eight principles?

9. Ibid., pp. 241-42.

10. St. Thomas Aquinas, Summa theologiae, I-II, q. 90-97.
11. Although Fuller seems to know the Treatise quite well, he seems unaware
of some of the very important texts to be found in St. Thomas' treatment of Justice
(Summa theologiae, II-II, q. 57-62) and injustice (ibid., q. 63-79).
ROBERT HENLE 49
A preliminary search of St. Thomas' Treatise reveals another
interesting text which, as a matter of fact, forces us to go farther
back than St. Thomas for the embryonic prototype of the eight
principles. In the Treatise, Question 95, Article 3 is entitled, "Whether
Isidore's Description of the Qualities of Written Law is Appropriate."
This article deals with two texts from the Etymologies12 of St. Isidore
of Seville (c.a. 560-636). Isidore's Etymologies is a sort of combination
dictionary and encyclopedia with emphasis on the derivation of
words. It covers a surprisingly wide range of subjects: geology,

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agriculture, astronomy, law, and so on. It was well-known in the
early Middle Ages and, since the Latin West had very few
comprehensive works of this sort, the Etymologies was highly regarded
and widely used.
It is in a section of this work with the oddly combined title of
"Concerning Laws and Periods of Time" 13 that I find the two texts
which seem to constitute a primitive version of Fuller's more
sophisticated presentations of the principles of legality. I here present
the reader with the relevant Isidorean texts in their original brevity
and simplicity:
What Qualities Should Law Have?
Law will be honourable, fair, possible, according to nature and
the custom of the country, befitting place and time, necessary,
serviceable, also clearly stated lest some point through obscurity
should be harmfully caught at, composed for no private gain but
for the common benefit.14
How Do Laws Differ from Customs?
Law will be what is founded on reason provided that it is
consistent with religion, agrees with good discipline, and furthers
our welfare.15
These texts indeed fall far short of the mature and developed
presentation given by Fuller. But the idea is very similar and there
is an overlap of ideas. Isidore's texts might, as I have said, be
regarded as a sort of primitive or embryonic version of the principles
of law.
Now one reason for beginning with Isidore is that St. Thomas
explicitly repeats and approves Isidore's listing. St. Isidore was not
a careful analytical thinker. His listing is somewhat haphazard; his

12. There is no English translation of Isidore's Etymologiae. I am using the

bilingual (Latin and Spanish) edition: San Isidoro de Sevilla (1982).
13. Etymologiae, V (De Legibus et Temporibus).
14. Ibid., V, 21.
15. Ibid., V, 3.
50 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)

terms imprecise and open to charges of redundancy which St. Thomas

recognizes in his objections. In dealing with Isidore's text, therefore,
St. Thomas gives each term a special meaning thus removing the
redundancy, and organizes the list under three heads thus giving
formal order to Isidore's purely material listing.
I quote here the entire text in which St. Thomas achieved this in
order to prepare for the detailed comparison of St. Thomas and Lon
Fuller which follows:
whatever is for a purpose must needs be adapted to that purpose,

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thus, to take Aristotle's example, the shape of a saw is such as
to fit it for cutting. Again, whatever is right and measured should
be configured to what rules and measures it. Human law meets
both requirements, for, first, it is something ordered to a purpose,
and, second, is a sort of rule and measure itself ruled and measured
by a higher, This last, as we have seen, is twofold, namely divine
law and natural law.
The purpose of human law is to be useful to men, as also the
Jurist teaches. That is why Isidore starts off by naming three
conditions, namely that it be consistent with religion as corre-
sponding with divine law, that it agrees with good discipline as
corresponding to natural law, and that it furthers our welfare as
corresponding to human usefulness.
The other conditions he afterwards enumerates all come back
to these three. For when he speaks of law being "honourable" he
refers to its "accord with religion," and when he goes on to add
that it is "fair, possible, according to nature and the custom of
the country, and befitting place and time" he is implying its
"accord with good discipline." For human discipline has three
requirements. First, the reasonable order of things indicated by
the word "fair." Second, the feasibility of its being acted on, for >
"good discipline" should have regard for what each can do, taking
into account his natural ability—for the same tasks are not to be
imposed on those who have grown up and those who have not—
as well as his social condition—for a man cannot live as a solitary
in society and not comply with the behaviour of others: this is
indicated by the world "possible." Thirdly, Isidore mentions "be-
fitting place and time" to indicate that the circumstances should
be right and proper. Finally his remaining condition refers to law
as advantageous for human well-being; "necessary" for evil to be
put away, "useful" for good to gained, "clearly stated" so that
any harm arising from the law itself may be guarded against. And
because, as we have said, law is ordained to the common good,
he brings in this requirement at the close of his description.16
Isidore raised the question, "What qualities should positive law
have?" and offered a first brief answer.

16. Summa theologiae, I-II, q. 95, a. 3, c.

ROBERT HENLE 51
Of course, St. Thomas' treatment of matters relative to Fuller's
principles is not limited to this brief article. The article simply
subsumes Isidore's effort to list the qualities of positive law into his
own system. He is thus able to quote Isidore fifteen times in other
parts of the Treatise.
I will now examine each principle and its counterpart in St. Thomas
in some detail. First I list the principles.17
(1) The Generality of Laws
(2) Promulgation

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(3) Retroactive Laws
(4) The Clarity of Laws
(5) Contradiction in the Laws
(6) Laws Requiring the Impossible
(7) Constancy of the Law Through Time
(8) Congruence Between Official Action and Declared Rule

I. GENERALITY OF LAWS
18
Fuller says that the argument for generality is very simple. To
have a system of laws there must be rules, and rules are general
directives for action. He also calls the desideratum of general rules
a "truism." [The rest of his discussion has to do with the failure of
some administrative agencies to make or act on established general
rules.] Fuller is clearly right in insisting that this desideratum of
generality is obvious, but St. Thomas elaborates the matter from
several points of view.
St. Thomas begins his discussion of law with the empirical
observation that laws bind men to do or not to do certain things,
then offers the following philosophical interpretation: Law is a "rule
and measure of human acts."19 "Human acts" are acts placed with
knowledge, deliberation, and freedom, that is, imputable acts which
correspond to Fuller's "human conduct."20 It is clear that St. Thomas
understands "rule" in the same way as Fuller, namely as a general
direction for a specific type of action (human acts or human conduct).

17. The Morality of Law, Table of Contents, pp. ix-x.

18. Ibid, pp. 46-49.
19. Summa theologiae, MI, q. 90, a. 1, c.
20. The Morality of Law, p. 162. "I have repeatedly observed that legal morality
can be said to be neutral over a wide range of ethical issues. It cannot be neutral
in its view of man himself. To embark on the enterprise of subjecting human
conduct to the governance of rules involves of necessity a commitment to the view
that man is, or can become, a responsible agent, capable of understanding and
following rules, and answerable for his defaults."
52 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
St. Thomas thus affirms Fuller's characterization of this desideratum
as obvious.
However, it may be recalled that Fuller draws this principle from
the first disastrous effort of Rex II to reform his legal system by
proceeding on a case-by-case basis.21 On this point St. Thomas
develops what Fuller calls a surprisingly elaborate argument for
general laws:22
as the Philosopher says (Rhet.i.I), it is better that all things be
regulated by law, than left to be decided by judges: and this for

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three reasons. First, because it is easier to find a few wise men
competent to frame right laws, than to find the many who would
be necessary to judge aright of each single case.—Secondly, because
those who make laws consider long beforehand what laws to make;
whereas judgment on each single case has to be pronounced as
soon as it arises: and it is easier for man to see what is right, by
taking many instances into consideration, than by considering one
solitary fact.—Thirdly, because lawgivers judge in the abstract and
of future events; whereas those who sit in judgment judge of
things present, towards which they are affected by love, hatred,
or some kind of cupidity; wherefore their judgment is perverted.
Since then the animated justice of the judge is not found in every
man, and since it can be deflected, it was necessary, whenever
possible, for the law to determine how to judge, and for very few
matters to be left to the decision of men.23
St. Thomas, of course, knew that many things must be left to the
decision of judges24 though he stressed that they must judge by the
written laws and the evidence presented them in due Court procedure.25
In addition, St. Thomas devotes an entire Article26 to the question
whether laws should be framed in general or in particular. In this
Article he makes a connection between generality and an essential
element of law, namely, the essential ordination to the Common
Good. Hence he concludes this Article thus:
now the common good comprises many things. Wherefore laws
should take account of many things, as to persons, as to matters

21. Ibid., p. 34.

22. Ibid., p. 98. "Concerning the need for general rules (as contrasted with a
case-by-case decision of controversies) [Aquinas] develops a surprisingly elaborate
demonstration, including an argument that wise men being always in short supply
it is a matter of economic prudence to spread their talents by putting them to work
to draft general rules which lesser men can then apply."
23. Summa theologiae, I-II, q. 95, a. 1, reply 2.
24. Ibid, reply 3.
25. Ibid., II-II, q. 90. a. 1, c.
26. Ibid., I-II, q. 96, a. 1.
ROBERT HENLE 53
and as to times. Because the community of the state is composed
of many persons; and its good is procured by many actions.27
He finds support for this position in Isidore: "That law should be
framed, not for any private benefit, but for the common good of
all the citizens."28 A further support is found in Roman jurisprudence:
"The jurist says that laws should be made to suit the majority of
instances; and they are not framed according to what may possibly
happen in an individual case." 29 Thomas insists that:
A principle of direction should be applicable to many. . . . For if

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there were as many rules of measures as there are things measured
or ruled, they would cease to be of use, since their use consists
in being applicable to many things. Hence law would be of no
use, if it did not extend further than to one single act.30
St. Thomas' reference to the diversities of which law must take
account recalls H.L.A. Hart's assertion that a law must be general
in two ways, with reference to a general class of persons to which
it applies and with reference to a general class of acts ordered or
prphibited.31 St. Thomas himself adverts (at least indirectly) to this
dual generality when he lays down the principles according to which
laws should be classified (per se, i.e. because of the laws' intrinsic
nature rather than per accidens, as by the author's name, e.g. the
Lex Julia [cf. The Wagner Act]).32
Thus St. Thomas points out that different laws apply to different
groups of people in accordance with their different functions in
society; thus there are special laws for soldiers, merchants, priests,
and so on. He also point out that civil laws are divided according
to the general class of acts which they forbid or order. Thus, there
is a law against adultery, a law that imposes just buying and selling,
and so on. In this discussion St. Thomas again makes use of a text
from Isidore.33 I conclude that:
(1) St. Thomas did indeed deal at some length with Fuller's first
desideratum, the generality of laws.
(2) Isidore at least implicitly recognized the generality of laws.
(3) Both Fuller and St. Thomas agree that the generality of laws
is a requirement not merely for good laws but for the existence

27. Ibid., c.
28. Etymologiae, V, 21.
29. Panduct. Justin, lib. 1, tit. iii, art. 2, De Legibus, etc.
30. Summa theologiae, I-II, q. 96, a. 1, reply 2.
31. H.L.A. Hart, The Concept of Law (1961), p. 21.
32. Summa theologiae I-II, q. 95, a. 4, c.
33. Etymologiae, V, pp. 4ff.
54 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
of laws—it belongs to the essence of law. Thus an act of Congress
determining the requirements for admission to the Marine Corps
would be a law, but an act of Congress conferring the Congres-
sional Medal of Honor on Marine Joseph Spiegle, though an
official act, would not be a law.
(4) The desideratum of generality belongs entirely to the morality
of obligation. The act is either general or it is not. There is here
no room for aspiration to an additional perfection of generality.

II. PROMULGATION

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Fuller's second desideratum is promulgation.34 St. Thomas explicitly
dealt with this as a separate question, advancing the obvious but
classical argument for the necessity of promulgation.
It has been already noted that law is laid on subjects to serve as
a rule and measure. This means that it has to be brought to bear
on them. Hence to have binding force, which is an essential
property of a law, it has to be applied to the people it is meant
to direct. This application comes about when their attention is
drawn to it by the fact of promulgation. 35Hence this is required
for a measure to possess the force of law.
Fuller and St. Thomas both agree that a law is a rule directive of
human conduct (human acts) and that these acts are performed
through deliberation, knowledge, and freedom. Obviously such acts
cannot be guided by rules unknown to the performers of such acts.
Thus the general need for promulgation is easily established.
We must distinguish, however, the official act of promulgation
from the general publication of the law and its content to the general
public, or, at least, to those directly affected by the legislation. For
an official promulgation, the act must be proclaimed in such a way
that people recognize it as the law and understand its contents. Fuller
says36 that this official promulgation readily lends itself to
"formalization," that is, to the establishment of a definite rule
specifying the mode of official promulgation. This contrasts with,
for example, the desideratum of clarity for which no specific measure
of minimum clarity can be specified. Thus, in all societies, the official
act of promulgation is determined and specified by custom, a
constitutional provision, or some other legislative action. In ancient
Rome laws were promulgated by being posted in the Forum. In
Medieval Europe laws were proclaimed by the Town Crier. In most

34. The Morality of Law, pp. 43-44; 49-51.

35. Summa theologiae, H I , q. 90, a. 4, c.
36. The Morality of Law, p. 43.
ROBERT HENLE 55
modern states promulgation requires publication in an official journal.
Now St. Thomas does not explicitly distinguish this official act of
promulgation, although he indicates an awareness of it. Thus in
answer to the second objection in Article 4 he says,
Those who are not present when a law is promulgated are bound
to observe the law in so far as the law is notified, or can be,
notified to them by others.37
He hereby clearly distinguishes between a place and time of
promulgation (official promulgation) and the "publication" of the

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law to the general citizenry. In the Sed Contra of the same article
St. Thomas quotes from the Decretals: "Laws are established when
they are promulgated,"38 a text which obviously refers to the official
act of promulgation. It is clear that for both Fuller and St. Thomas,
the act of official promulgation is an essential requirement for the
existence of law. For this reason it is explicitly included in St.
Thomas' definition of law:
from the four foregoing discussions the following definition can
' be gathered. Law is nought else than an ordinance of reason for
the common good made by the authority who has care of the
community and promulgated.39
At first sight, promulgation seems like an extrinsic addition to the
definition. The reason for its separate mention is that it can be
viewed in two different ways. It may be viewed actively, so that
promulgat//jg is part of the making of the law and so falls in the
category of efficient causality and pertains to "him who has the care
of the community." Promulgation can also be viewed as an enduring
quality of the law made. It thus belongs to the formal cause of law
which can be expanded as "a promulgated dictate of right practical
reason."
Now, although the official promulgation of the law " . . . lets the
subject—or a lawyer representing his interests—know where to go to
find our what the law is," 40 the problem of general publication of
the laws to the general citizenry remains. It is obviously impossible
to make all laws known to all citizens. This is especially true in

37. Summa theologiae, I-II, q. 90, a. 4, reply 2.

38. Decretem, I, IV, Appendix to 3.
39. Summa theologiae, I-II, q. 90, a. 4, c. ad finem. For a complete analysis
of this definition see R. J. Henle, "A Comment on Edward J. Damich's "The
Essence of Law According to Thomas Aquinas'," 33 Am. J. Juris. (1988), pp. 161-
66.
40. The Morality of Law, p. 44.
56 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
modern states with the enormous expansion of statutes and regulations
and wherein the complexity of any single statute may be beyond the
capacity of the ordinary citizen to understand. Fuller points out41
that part of this problem is solved for the ordinary citizen by the
fact that the moral code coincides with many of the basic provisions
of law. Thus everyone knows that murder, robbery, assault, rape,
fraud, and so on, are prohibited. Moreover, in modern societies
there are many ways in which laws, especially those relevant to a
definite segment of the population (e.g., to doctors, insurance

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companies, hospitals, and so on), are communicated. Laws relative
to the practice of medicine are, for example, generally notified to
doctors by various medical organizations and publications. On the
other hand, when the United States radically changed its income tax
laws, the Internal Revenue Service took extraordinary steps to make
all taxpaying citizens aware of the changes.
St. Thomas does not discuss at length the problem of general
publication of laws, but in objections 2 and 3 of Article 4, he
recognizes the problem of extending the knowledge of law to those
not present at the official promulgation. He says that such people
can find out what the law is from the "durability of writing" and
by being informed by "others."42
I conclude that:
(1) St. Thomas does indeed deal directly and substantively with
Fuller's desideratum of promulgation.
(2) St. Thomas and Fuller agree in this matter.
(3) The official act of promulgation belongs to the essence of law ,,
and falls under the morality of obligation. Official promulgation
l
admits of no degrees of perfection.
(4) The general publication of laws to the citizenry remains a
perennial problem and can be said to belong to the morality of
aspiration in which perfection is never reached.

III. RETROACTIVE LAWS 43

Under this rubric Fuller does three somewhat different things. First
he very clearly states the basic flaw in retroactive laws. Secondly, he
deals with the use of retroactive laws to remedy previous failures in
the legal system. And thirdly, he discusses the problems of retroactivity
in court decisions.

41. Ibid., pp. 50-51.

42. Summa theologiae, I-II, q. 90, a. a4, reply 2 and 3.
43. The Morality of Law, pp. 51-62.
ROBERT HENLE 57
A. RETROACTIVE LAWS PROPERLY SO-CALLED

Fuller states very clearly the basic flaw in retroactive laws properly
so-called:
Taken by itself, and in abstraction from its possible function in a
system of laws that are largely prospective, a retroactive law is
truly a monstrosity. Law has to do with the governance of human
conduct by rules. To speak of governing or directing conduct
today by rules that will be enacted tomorrow is to talk in blank
prose. To ask how we should appraise an imaginary legal system

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consisting exclusively of laws that are retroactive, and retroactive
only, is like asking how much air pressure there is in a perfect
vacuum.
If, therefore, we are to appraise retroactive laws intelligently,
we must place them in the context of a system of rules that are
generally prospective. Curiously, in this context situations can arise
in which granting retroactive effect to legal rules not only becomes
tolerable but may actually be essential to advance the cause of
legality.44
Further, he points out that such laws are particularly heinous in
criminal law. He reasserts the absurdity of such laws: "It is the
retroactive criminal statute that calls most directly to mind the brutal
absurdity of commanding a man today to do something yesterday." 45
Now, while neither Isidore nor St. Thomas explicitly refers to
"retroactive" laws, both view law as essentially prospective, necessarily
ordering what is possible and necessarily just. We can confidently
conclude that Isidore and St. Thomas would have condemned
retroactive laws as absurd, unjust, and not really laws at all. This
might be regarded as a very strong penumbra argument.

B. CURATIVE RETROACTIVITY46

Fuller points out that in legal systems that are largely prospective,
situations occur where it is necessary to rectify past errors in legality.
In such cases retroactive action is obviously justified. Although Fuller
calls such retroaction "laws," they are official, authoritative acts,
and to call them laws seems to me to lead to confusion of thought.
Now, neither Isidore nor St. Thomas refers to such curative actions,
though St. Thomas must have been aware of the parallel case in
Canon Law of the "sanatio in radice" ("healing at the source").

44. Ibid., p. 53.

45. Ibid., p. 59.
46. Ibid., pp. 53-54.
58 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
C. RETROACTIVE JUDICIAL DECISIONS47

Fuller has an excellent discussion of the possible retroactive effect

of the decisions of judges. For the purpose of this study it is not
necessary to review this discussion in detail, since neither Isidore nor
St. Thomas discuss the matter. However, St. Thomas' insistence on
the duty of judges to act justly48 (even to the extent of quashing
unjust laws)49 supplies a basis for Fuller's discussion. The basic issue
seems to be to insure that the courts will deal justly with the citizens
affected by reversals in accepted judicial principles.

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I conclude that:
(1) Although neither Isidore nor St. Thomas explicitly deals with
legal retroactivity, their principles can easily be extended to support
and agree with Fuller's treatment of this desideratum.
(2) While retroactive laws properly so-called lie entirely outside of
morality, the use of retroactivity can be seen as beginning at the
bottom of Fuller's moral scale and moving up into the morality
of aspiration. Perfection here seems unattainable.

IV. THE CLARITY OF LAWS 50

Fuller, Isidore, and St. Thomas all deal with this desideratum
briefly and explicitly. Fuller starts his discussion thus: " T h e
desideratum of clarity represents one of the most essential ingredients
of legality . . . this proposition is scarcely subject to challenge. . . . "
Isidore states: "[Laws should be] clearly expressed lest some
misunderstanding should arise." 51 St. Thomas approves Isidore's
statement and rephrases it in this rather enigmatic way, "[The law
should have] clearness of expression to the need of preventing any
harm coming from the law itself."52
We may relate clarity to promulgating. A law that people cannot
understand can hardly be said to be promulgated. The basic reason
for this desideratum is quite obvious. If law is a rule of human acts
or human conduct, as both Fuller and St. Thomas assert, then a law
that is unintelligible to those regulated by it cannot be a directive
for action and so is no law. Fuller stresses the responsibility this
demand places on the lawgiver as well as the limitations under which

47. Ibid., pp. 55-61.

48. Justice of Judges.
49. Voiding unjust laws.
50. The Morality of Law, pp. 63-65.
51. Etymologiae, V, 21.
52. Summa theologiae, I-II, q. 95, a. 3, c.
ROBERT HENLE 59
the legal draftsman works." St. Thomas acknowledges these limitations
as well " . . . the lawgiver cannot have in view every single case, he
shapes the law according to what happens most frequently by directing
his attention to the common good."54 He is also aware that many
things must be left to the discretion of judges.55
It is obvious that clarity admits of degrees and that there is a
minimum degree which must be reached if there is to be law. But
Fuller points out that it is difficult to "formularize" this minimum.56
When laws of doubtful intelligibility reach the courts, they may be

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voided as constitutionally vague. The courts have no precise standard
by which to judge clarity; this must be done by a practical prudential
judgment.57 Above this minimum there are higher and higher levels
of clarity, though total perfection can never be reached. No lawgiver
can provide for every case and every contingency and, even if one
could, the resulting complexity would defeat the aim of clarity.
I conclude that:
(1) Both Isidore and St. Thomas explicitly recognized clarity as an
essential quality or property of law.
(2) The minimum clarity belongs to the morality of obligation and
is necessary that there be law at all.
(3) As clarity moves up the scale to the morality of aspiration it
places severe demands on the legal craftsman whose best efforts,
however, can never achieve perfection.

V. CONTRADICTION IN LAWS 58

Under this head Fuller is not speaking of a conflict of rights or a

disagreement between laws of a lower and higher level. He is dealing
with contradiction within the same system of laws as well as within
a single law itself. His discussion is insightful and he explores ways
in which courts can handle and resolve contradictions.
St. Thomas distinguishes the jurisdiction of various courts and
authorities,59 but he does not deal with the precise problem envisioned
by Fuller. Likewise, Isidore says nothing directly relevant to the

53. The Morality of Law, p. 63.

54. Summa theologiae, I-II, q. 97, a. 6, c.
55. Ibid., q. 95, a. 1, reply 3.
56. The Morality of Law, p. 43.
57. R.J. Henle, S.J., "On Prudence and Insight," a paper presented to the
Plenary Session of the American Catholic Philosophical Association, Houston,
Texas, April 17, 1982.
58. The Morality of Law, pp. 65-78.
59. Summa theologiae, II-II, q. 60, a. 6; q. 6, a 7, ad. 4, c.
60 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
problem. Yet, we might consider a contradiction within a statute or
even a system of statutes as a special case under the clarity of laws.
Obviously a law containing an intrinsic contradiction cannot serve as
a clear "rule and measure of human acts" since it leaves the citizen
uncertain as to what is required of him. We might relate this problem
to the question of promulgation. When a lawgiver issues a self-
contradictory law he has failed to make his intention clear. This
could be regarded as a failure in the promulgation on which St.
Thomas insists.

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We may consider the case of self-contradictory laws as, in a way,
analogous to the situation in which the lawgiver cannot foresee all
possible cases that might arise relative to his law.
Moreover, judgment should be formed on the individual happen-
ing. But no written law can cover each and every such case, as
Aristotle makes clear. Consequently it seems that we ought not
always to pass judgment according to written law.60
. . . . laws that are rightly enacted fall short in cases when to
observe them would be to offend against natural right. In such
cases judgment should be delivered, not according to the letter of
the law, but by recourse to equity, this being the intention of the
lawgiver.61
We might well assume that, analogously, St. Thomas would expect
a judge to deal with contradiction according to equity or natural
justice.
I conclude that:
(1) Neither St. Thomas nor Isidore deal explicitly with the problem v
of contradiction in laws.
(2) If we consider contradiction in laws a special case of failure
in clarity, both St. Thomas and Isidore deal with the problem.
(3) St. Thomas' basic rule of interpretation supports Fuller's
explanation of the action of courts in such cases.

VI. LAWS REQUIRING THE IMPOSSIBLE62

Fuller begins with the most obvious reaction to laws imposing the
impossible:
On the face of it a law commanding the impossible seems such
an absurdity that one is tempted to suppose no sane lawmaker,

60. Ibid., q. 65, a. 5, obj. 2.

61. Ibid., reply 2.
62. The Morality of Law, pp. 70-79.
ROBERT HENLE 61
not even the most evil dictator, would have any reason to enact
such a law.63
He then discusses at length laws and legal situations which may verge
on involving impossibility. Isidore also states explicitly that: "[Human
laws should be] possible," 64 but adds a list of factors limiting the
possibility. "[Human laws should be] possible to nature, according
to the custom of the country and adapted to place and time." 65
St. Thomas approves Isidore's statement and gives it a brief
exegesis:

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and when he goes on to say that it should be just, possible to
nature, according to the customs of the country, adapted to place
and time, he implies that it should be helpful to discipline. For
human discipline depends first on the order of reason, to which
he refers by saying just:—secondly, it depends on the ability of
the agent; because discipline should be adapted to each one ac-
cording to his ability, taking also into account the ability of nature
(for the same burdens should be not laid on children as on adults);
and should be according to human customs; since man cannot live
alpne in society, paying no heed to others:—thirdly, it depends on
certain circumstances, in respect of which he says, adapted to
place and time.66

St. Thomas returns to these ideas in another context where he is

pointing out that laws should not be imposed on people who (for
whatever reason) cannot possibly observe them. Thus:
wherefore laws imposed on men should also be in keeping with
their condition, for, as Isidore says {Etym. V. 21), law should be
possible both according to nature, and according to the customs
of the country. Now possibility or faculty of action is due to an
interior habit or disposition: since the same thing is not possible
to one who has not a virtuous habit, as is possible to one who
has. Thus the same is not possible to a child as to a full-grown
man: for which reason the law for children is not the same as for
adults, since many things are permitted to children, which in an
adult are punished by law or at any rate are open to blame. In
like manner many things are permissible to men not perfect in
virtue, which would be intolerable in a virtuous man. Now human
law is framed for a number of human beings, the majority of
whom are not perfect in virtue. Wherefore human laws do not
forbid all vices, from which the virtuous abstain, but only the

63. Ibid., p. 70.

64. Etymologiae, V, 2.
65. Ibid.
66. Summa theologiae, I-II, q. 95, a. 3, c.
62 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
more grievous vices, from which it is possible for the majority to
abstain; and chiefly those that are to the hurt of others, without
the prohibition of which human society could not be maintained:
thus human law prohibits murder, theft and suchlike.67
This discussion once again demonstrates St. Thomas' flexibility and
adaptability.
In another context St. Thomas asserts that laws that are too
burdensome are unjust.
Now laws are said to be just . . . from their form, when for the

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good of the whole they place burdens in equitable proportion on
subjects. Accordingly laws which apportion in due measure the
burdens of responsibility are just, legitimate, and oblige at the bar
of conscience.68
I conclude that:
(1) Both Isidore and St. Thomas deal explicitly with the require-
ment of possibility;
(2) That the desideratum of possibility belongs to the morality of
obligation.

VII. CONSTANCY OF LAW THROUGH TIME 69

On this point St. Thomas is much more precise and detailed than
Fuller. Fuller does indeed stress the harm done by too frequent
change in laws but devotes most of his discussion to comparing that
harm to the harmful consequences of retroactive laws. St. Thomas
deals with the problem of change in laws in the first two Articles of
Question 97.70 In Article 1 he deals with the possibility of changing
laws and gives the basic reasons for change. Question 97 makes clear
that natural law doctrine does not immobilize human laws (as the
Medes and Persians were said to have done). In the first Objection
he presents an argument that no human law can be changed. The
natural law, he argues, is derived from the divine law and therefore
cannot be changed. But human law is derived from natural law.
Therefore human law cannot be changed.
Many modern positivists seem to assume that natural law thinkers
want simply to transfer natural law into positive law and so freeze
the latter. This idea got into the mythology of modern jurisprudence

67. Ibid., q. 96, a. 2, c.

68. Ibid., q. 96, a. 4, c.
69. The Morality of Law, pp. 79-81.
70. Summa theologiae, I-II, q. 97, aa. 1 and 2, c.
ROBERT HENLE 63

from Bentham. Bentham was an ardent reformer; he believed, I think

rightly, that the penal code and prison system of England should be
radically changed. He thought that the greatest obstacle to change
was the influence of Sir William Blackstone, the famous commentator
on the English Common Law. Blackstone was a natural law thinker
and almost canonized the English legal system. Bentham believed
that it was Blackstone's natural law position that blocked change.
Anticipating this objection mentioned above, St. Thomas wrote:
The Natural Law is a certain participation in the Eternal Law as

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was stated above (q. 95, a. 1) and therefore it remains unchange-
able. This it has from the unchangeableness and perfection of the
Divine Reason, the author of nature. But human reason is change-
able and imperfect and so its law is changeable. And besides, the
Natural Law contains certain universal precepts which endure
forever, while law made by man contains certain particular precepts
according to the different situations which arise.71
In the corpus of the first Article St. Thomas describes two sets of
causes which justify changing the laws. The first set is derived from
the nature of law as a "dictate of reason." In this regard, changes
follow advances in theoretical knowledge. A modern example might
be the discoveries of the health hazards caused by lead and asbestos
which justified new laws and regulations concerning their use.
Secondly, experience in practical affairs has brought about changes
in institutions.
So also in practical matters: for those who first endeavoured to
discover something useful for the human community, not being
able by themselves to take everything into consideration, set up
certain institutions which were deficient in many ways; and these
were changed by subsequent lawgivers who made institutions that
might prove less frequently deficient in respect of the common
weal.72
The second major cause justifying changes in laws is the change
in the condition of the people.
. . . the law can be rightly changed on account of the changed
condition of man, to whom different things are expedient according
to the difference of his condition.73
A modern example occurs in the development of laws to cope with
the growing drug culture.

71. Ibid., q. 97, a. 1, reply 1.

72. Ibid., a. 2, c.
73. Ibid.
64 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
In the second Article St. Thomas asks whether laws should at once
be changed when something better is found. The second Article in
Question 97 puts the question: Granted that change in law is possible,
should laws always be changed when something better is found?
Here St. Thomas parallels Fuller in pointing out that change in laws
taken by itself is detrimental. Compare the following texts.
St. Thomas: As stated above (A. I), human law is rightly changed
in so far as such, change is conducive to the common weal. But,
to a certain extent, the mere change of law is of itself prejudicial
to the common good: because custom avails much for the obser-

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vance of laws, seeing that what is done contrary to general custom,
even in slight matters, is looked upon as grave. Consequently,
when a law is changed, the binding power of the law is diminished,
in so far as custom is abolished. Wherefore human law should
never be changed, unless, in some way or other, the common weal
be compensated according to the extent of the harm done in this
respect.74 Fuller: Yet there is a close affinity between the harms
done by retrospective legislation and those resulting from too
frequent changes in the law. Both follow from what may be called
legislative inconstancy.75
Fuller quotes Madison in support of his statement:
[The sober people of America] have seen with regret and indig-
nation that sudden changes and legislative interferences . . . be-
come . . . snares to the more-industrious and less-informed part
of the community.76
Isidore does not directly address the problem of change in law,
yet he implies the necessity of change when he says, "Law should
be possible to nature, according to the custom of the country and
suitable to place and time."77 Adapting to place and time implies
adjustment to changing times. St. Thomas quotes Isidore in another
context where he is arguing that the lawgiver must take into account
the state and condition of the people in the society he governs.78
There is here no rigid natural law imposition. Both St. Thomas and
Fuller agree that a change in laws is, in itself, detrimental and that
a balance must be achieved between the benefit of change for the
common good and the harm change brings to the common good.
I conclude that:

74. Ibid., a. 2, c.
75. The Morality of Law, p. 80.
76. Ibid.
77. Etymologiae, V, 21.
78. Summa theologiae, I-II, q. 92, a. 2, c.
ROBERT HENLE 65
(1) St. Thomas in detail and Isidore by implication dealt with
Fuller's desideratum of constancy of laws through time.
(2) Decisions to change laws depend on a practical prudential
judgment which at some stage moves into the morality of aspira-
tion.

VIII. CONGRUENCE BETWEEN OFFICIAL ACTION AND DECLARED

RULE79

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A. INTRODUCTION
In the text on which this investigation is based,80 Fuller asserted
that St. Thomas dealt with all of his eight principles. I think I have
shown that, in general, this statement is true. St. Thomas and, to a
lesser extent, Isidore, did indeed discuss either explicitly, implicitly,
or inferentially all the seven principles we have dealt with thus far.
However, with regard to this eighth principle Fuller himself expressed
some reservation: ("It may be stretching things a bit to say that
Aquinas recognized the principle of congruity between official action
and declared rule.") 81 This reservation is well taken if one regards
only the Treatise. It would be difficult indeed to find any discussion
of this principle in the Treatise. But, as I shall show, in other parts
of the SummcP2 with which Fuller seems unacquainted, there is strong
support for this last desideratum.

B. THE BASIC PRINCIPLE

Now, by "official action" Fuller means the action of all the public
officials concerned with the administration of the law such as police,
prosecuting attorneys, and judges when they act in their public
capacity. Fuller maintains that for the health of a legal system, and
in the long run for its very existence,83 this congruence, this adherence
to the law, is necessary.
In Summa theologiae, II-II, q. 67-71, St. Thomas reviews the
duties of judges, witnesses, and lawyers in court cases. Now the duty
of acting according to law falls on these public officials precisely
because and insofar as they are public officials. St. Thomas stresses
the fact that the judge is a public official and, therefore, must judge

79. The Morality of Law, pp. 79-80.

80. Ibid., pp. 241-42.
81. Ibid., p. 242, fn. 52.
82. Summa theologiae, II-II, q. 67, aa. 1-4.
83. The Morality of Law, p. 91.
66 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
according to the law and the evidence presented in court and not
according to his personal opinions, or even personal knowledge
relevant to the case.
We have already observed that a judge is competent to judge to
the extent that he is invested with public authority. It follows that
he should allow his judgment to be formed by what he comes to
learn not in his private but in his public capacity. But he has two
ways of coming to learn in this way, a general and a more
particular way. The general way is through public laws, whether
divine or human; and these must be taken as read by everybody

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and as incontrovertible. In any particular court proceeding, how-
ever, he is bound to decide on the basis of the evidence, the
testimony of witness and admissible documents rather than of
what he knows as a private person. . . .84
And again St. Thomas wrote:
Our previous argument has gone to show that two relevant con-
siderations apply to the judge. The first of these is that his business
is to adjudge between an accuser and accused, whilst the second
is that he gives judgement in virtue not of his own but of public
authority. There are, therefore, two reasons to disqualify a judge
from relieving a convicted person of his penalty. The first has to
do with the accuser who sometimes has the right to have the guilty
man punished, as in the case where he has suffered at the hands
of the guilty one; here the judge has no right to mitigate the
penalty since it is his duty to render each man his due. The second
disqualification arises from the fact that it is the public authority
of the state which he exercises, and it is in the public interest that
malefactors be punished.85
With Aristotle, St. Thomas views the judge as "justice incarnate.''
A judge is the mouthpiece of justice. This is what makes Aristotle
say that people resort to the judge as to justice personified. But
justice, as we have already observed, is concerned with relation-
ships to others and not with oneself in isolation. There must
therefore be two parties for the judge to adjudge between, and
this is the case where one is the complainant and the other is the
accused. In criminal trials, therefore, a judge is not entitled to
convict somebody who has not been duly charged. This is the
principle illustrated in the Acts of the Apostles: It is not the
custom of the Romans to give up any one before the accused
meets the accusers face to face, and has an opportunity to make
his defence concerning the charge laid against him.86

84. Summa theologiae, II-II, q. 67, a. 2, c.

85. Ibid., q. 67, a. 4, c.
86. Ibid., q. 67, a. 3, c; Ethics, V, 4.
ROBERT HENLE 67
Now St. Thomas makes two exceptions to the judge's obligation
to adhere to the law. The first case has to do with unjust laws:
A legal code, even as it does not give natural right its strength,
so too it cannot diminish or take that away. Accordingly if it
contains something contrary to natural right, it is unjust and has
no binding force. For the place of positive right is where it is
irrelevant to natural right whether matters be arranged so or
otherwise, as we have explained. And such offending articles are
to be classed as corruptions of law, not as laws: this we have
already said. Consequently it is not according to them that judg-

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ment should be passed.87
The second exception has to do with situations in which a general
law "fails":
Even as unjust laws of themselves conflict with natural right always
or for the most part, so, too, laws that are rightly enacted fall
short in cases when to observe them would be to offend against
natural right. In such cases judgment should be delivered not
,( according to the letter of the law, but by recourse to equity, this
being the intention of the lawgiver. Hence an authority in juris-
prudence declares that the reasonableness of law and the mildness
of equity quite disallow measures introduced for our benefit being
so harshly interpreted as to arrive at severity contrary to our
welfare. Such cases even the lawgiver would judge otherwise; had
he foreseen them, he might have provided for them by law.88
I conclude that:
(1) St. Thomas strongly insists that the judge, except in some
unusual cases, must administer the law according to the written
law ("declared rule") and evidence presented in court (also pro-
vided by law).
(2) The principle here is that the judge must do this because he is
a public official.
(3) Hence, we may extend St. Thomas' strong demands for con-
formity to declared law to all other public officials and so match
his doctrine to that of Fuller.

C. WAYS IN WHICH CONGRUENCY CAN BE DESTROYED OR

PROTECTED

At the opening of his discussion, Fuller wrote:

This congruence may be destroyed or impaired in a great variety
of ways: mistaken interpretation, inaccessibility of the law, lack
of insight into what is required to maintain the integrity of a legal

87. Summa theologiae, II-II, q. 60, a. 5, reply 1.

88. Ibid., reply 2.
68 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
system, bribery, prejudice, indifference, stupidity, and the drive
toward personal power.89
St. Thomas was well aware of the many ways in which the
administration of justice could be corrupted. He was certainly familiar
with the Hebrew Prophets' fierce denunciation of corrupt judges and
unjust lawgivers. For example:
Woe to those who are heroes at drinking wine, nd valiant men in
mixing strong drink, who acquit the guilty for a bribe, and deprive
the innocent of his right!90

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"How long will you judge unjustly and show partiality to the
wicked? Selah Give justice to the weak and the fatherless; maintain
the right of the afflicted and the destitute."91
Again he quotes Isaiah:
Woe to them that make wicked laws, and when they write, write
injustice; to oppress the poor in judgment, and do violence to the
cause of the humble of My people.92
And St. Thomas himself wrote:
. . . whereas those who sit in judgment judge of things present,
towards which they are affected by love, hatred, or some kind of
cupidity; wherefore their judgment is perverted.93
But if St. Thomas was aware of the ways in which the administration
of justice may fail to carry out declared laws, he was also aware of
the need for procedures and principles to avoid such failures. We
could not expect him to have worked out all the principles we attach
to the Due Process clause nor could he avoid stressing things now
taken for granted. St. Thomas not only saw how congruence (and
justice) could be destroyed, he was also aware of legal devices to
guarantee congruence and justice. We could almost derive from his
works a sort of prototype of the doctrines we have developed under
the Due Process clause. Many of these safeguards he derived from
the Corpus Juris Civilis, yet others may be determined only by his
own respect for justice.
Here are a few samples:
A person has a right to trial in the jurisdiction where the crime
has been committed [Summa theologiae, II-II, q. 67, a. 1, c]; only

89. The Morality of Law, p. 81.

90. Isaiah, 5:22-23.
91. Psalms, 82:2-4.
92. Summa theologiae, q. 96, q. 4, obj. 3; Isaiah, 10:1-2.
93. Summa theologiae, I-II, q. 95, a. 1, reply 2.
ROBERT HENLE 69
those invested with public power are entitled to exercise coercion
[Summa theologiae, II-II, q. 67, a. 1, ad 1]; a person may
spontaneously submit oneself to judgment through voluntary
arbitration/arbitration must be fortified with some sanction [Summa
theologiae, II-II, q. 67, a. 1, ad 1, ad 2, ad 3]; judgment must be
based on the evidence adduced (due process) [Summa theologiae, II-
II, q. 67, a. 2, c; see also ad 1]; the process of trial is necessary
when the facts are not known to everyone [Summa theologiae, II-II,
q. 67, a. 2, ad 3* see also a. 3, ad 2]; a person cannot be convicted
who has not been duly charged [Summa theologiae, II-II q. 67, a.

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3, c ; see also: "It is not the custom of the Romans to give up any
one before the accused meets the accusers face to face, and has an
opportunity to make his defence concerning the charge laid against
him." (Acts 25:16)]; it is the court's duty to render each his due
(punishment) [Summa theologiae, II-II, q. 67, a. 4, c ; see also ad
1, ad 3]; one cannot reveal a confidence unless for the common
good [Summa theologiae, II-II, q. 68, a. 1, ad 3]; evidence must be
presented in writing [Summa theologiae, II-II, q. 68, a. 2, c ; see
also ad 1 ad 2]; rules regarding perjury [Summa theologiae, II-II, q.
69, a. 2, c]; giving collusive evidence is grounds for penalty [Summa
theologiae, II-II, q. 69, a. 2, ad 2]<gitimate grounds for appeal
[Summa theologiae, II-II, q. 69, a. 3 , c ; see also ad 1, ad 2]; time
limits on appeals [Summa theologiae, II-II, q. 69, a. 3, ad 3];' when
clerics are forbidden to give evidence [Summa theologiae, II-II, q.
70, a. 1, ad 3]; when a person is bound to give evidence [Summa
theologiae, II-II, q. 70, a. 1, c]; the seal of confession [Summa
theologiae, II-II, q. 70, a. 1, ad 2]; keeping faith is part of the
natural law [Summa theologiae, II-II, q. 70, a. 1, ad 2]; when
evidence is valueless [Summa theologiae, II-II, q. 70, a. 3, c]; false
evidence is wrong [Summa theologiae, II-II, q. 70, a. 4, c]; a lawyer
is bound to give service to the poor only under certain conditions
[Summa theologiae, II-II, q. 71, a. 1, c; see also ad 2].

D. CONCLUSION TO PRINCIPLE EIGHT

I conclude that:
(1) With regard to congruency of official action with declared law,
I believe St. Thomas is strongly in agreement with Fuller and
elaborates a point as concerns judges.
(2) St. Thomas was also all too familiar with failures in congruence
and the consequent injustice.
(3) He also explored many obligations and procedures relative to
the required congruence.
70 THE AMERICAN JOURNAL OF JURISPRUDENCE (1994)
GENERAL CONCLUSION
Our investigation has shown that St. Thomas, and to a lesser
extent Isidore, dealt either explicitly, implicitly, or inferentially with
Fuller's eight principles of legality. The analysis has also, I think,
clarified to what extent these principles are required for the existence
of law and to what extent they ensure good law. Also, the analysis
has shown the relationship of the principles to Fuller's two moralities,
the morality of obligation and the morality of aspiration.
Throughout these discussions Fuller, St. Thomas, and Isidore have

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referred to equity and justice. I suggest that a ninth principle of the
internal morality of the law should be added to Fuller's eight, namely,
the desideratum that law in itself and in its administration should be
just. This principle would be as neutral with regard to the aims of
law as are the other principles. Thus a law may be unjust because
it violates the common good but this leaves open the question of
what specific law violates the common good. The addition of the
ninth principle would establish beyond doubt that the inner morality
of the law guarantees good laws. The argument for such a Principle
would be quite simple. A law binds a person to do or not to do
something. But nobody can force another to do what is wrong.
Therefore an unjust law has no binding power. Therefore it is not
a law. The basis for the discussion of this ninth principle can be
found in Summa theologiae, I-II, q. 96, a. 4.
A final note: Whatever one may believe about calling Fuller's
principles of legality, the "morality of the law,"—certainly they are
guidelines for the legal draftsman and do impose on him the obligation
of following them in the areas we have identified as belonging to
the morality of obligation