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Reconstructing Fuller’s Argument Against Legal Positivism

Published online by Cambridge University Press:  20 July 2015

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The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2013

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I thank Alon Harel, Charles Barzun, Mike Giudice and students in his graduate seminar, and an anonymous CJLJ referee for comments on earlier versions of this essay.

1. Thus, for instance, Brian Leiter and Leslie Green have written about the “famously muddled Lon Fuller.” Green, Leslie J & Leiter, Brian, letter to the editor, “H.L.A. Hart and ‘The Concept of Law’” Times Literary Supp (11 March 2005) 15 at 15Google Scholar. Writing again, this time alone, Leiter complained of Fuller’s “spectacular confusions [that] may have poisoned the minds of a whole generation of law students.” Leiter, Brian, “The Radicalism of Legal Positivism” (2009) 66 Nat’l Law Guild Rev 165 at 165Google Scholar. Not to be outdone, Matthew Kramer has accused Fuller of “flirtation with Nazism”! Kramer, Matthew H, In Defense of Legal Positivism: Law without Trimmings (Oxford: Oxford University Press, 1999) at 114 Google Scholar, n 3. (For the record, Kramer cites a source for this allegation, but it does not support his claim; and as it happens, already in Fuller, Lon L, The Law in Quest of Itself (Chicago: Foundation Press, 1940) at 122 Google Scholar, Fuller wrote of the “disasters which engulfed Spain and Germany” in relation to their political upheavals.) The interested reader can find additional examples of this attitude towards Fuller in Soosay, Sundram, “Rediscovering Fuller and Llewellyn: Law as Custom and Process” in Mar, Maksymilian Del, ed, New Waves in Philosophy of Law (London: Palgrave Macmillan, 2011) 31 at 32-33CrossRefGoogle Scholar. Soosay’s essay, like the present one, seeks to challenge this prevailing view.

2. I say more on this in Dan Priel, “Institutional Morality and the Rule of Law” [unpublished manuscript].

3. Luban, David, “Rediscovering Fuller’s Legal Ethics” (1998) 11 Geo J Legal Ethics 801 at 803Google Scholar.

4. Green, Leslie, “Legal Positivism and the Inseparability of Law and Morals” (2008) 83 NYU L Rev 1035 at 1045Google Scholar.

5. Fuller, supra note 1 at 5-12.

6. See, e.g., Fuller, Lon L, “Human Purpose and Natural Law” (1956) 53 J Phil 697 at 697CrossRefGoogle Scholar (“it is my thesis that when we accept the full consequences that fow from a view which treats human action as goal-directed, the relation between fact and value assumes an aspect entirely different from that implied in the alleged ‘truism’ that from what is nothing whatever follows as to what ought to be.”). Later in the same essay, Fuller also rejects the Humean view that only reasoning about means is rational. See ibid at 702. For more on this aspect of Fuller’s thought see Winston, Kenneth I, “Is/Ought Redux: The Pragmatist Context of Lon Fuller’s Conception of Law” (1988) 8 Oxford J Legal Stud 329 CrossRefGoogle Scholar.

7. Marmor, Andrei, Philosophy of Law (Princeton: Princeton University Press, 2011) at 82.Google Scholar I do not think this characterization of the rule(s) of recognition is consistent with Hart’s, but that is a separate matter.

8. Fuller, supra note 6 at 704.

9. Ibid.

10. Shapiro, Scott J, Legality (Cambridge: Harvard University Press, 2011) at 25254, 392-96Google Scholar.

11. Fuller, supra note 6 at 703.

12. Fuller, Lon L, “Human Interaction and the Law” (1969) 14 Am J Juris 1 at 2CrossRefGoogle Scholar.

13. Ibid at 24.

14. Gardner, John, “Hart on Legality, Justice and Morality” (2010) 1 Jurisprudence 253 CrossRefGoogle Scholar. Simmonds, NE, “Reply: The Nature and Virtue of Law” (2010) 1 Jurisprudence 277 at 281-83CrossRefGoogle Scholar, which responds to Gardner’s essay does not address the issues I consider in this essay.

15. Though my essay is not concerned with Dworkin, several statements in Gardner’s essay are also very inaccurate readings of Dworkin. Consider one example. Gardner writes: “Dworkin … tried to persuade us … that law’s inner morality (viz., the ideal of legality) is its whole morality.” Gardner, supra note 14 at 264. That is clearly false. Dworkin has argued that legality (by which, incidentally, Dworkin did not refer to Fuller’s principles) is the unique morality of law, not that it is the whole of it. Almost everything Dworkin has written on jurisprudence is inconsistent with Gardner’s claim. For a brief demonstration: “We can sensibly think that though the law rejects [a plaintiff’s] claim for damages according to market share, justice supports that claim. … But it would be nonsense to suppose that though the law, properly understood, grants her a right to recovery, the value of legality argues against it.” Dworkin, Ronald, “Hart’s Postscript and the Character of Political Philosophy” (2004) 24 Oxford J Legal Stud 1 at 25CrossRefGoogle Scholar. Gardner challenges the second of the two sentences (which he quotes in his essay), but the first (which he does not) shows that Dworkin recognizes that legality does not exhaust the morality of law.

16. There is also a pro forma citation to Fuller, Lon L, “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv L Rev 630 CrossRefGoogle Scholar, but Gardner does not consider any specific passage from it.

17. Gardner, supra note 14 at 254 [citation omitted]. The “earlier exchange” is, of course, Hart, HLA, “Positivism and the Separation of Law and Morals” (1958) 71 Harv L Rev 593 CrossRefGoogle Scholar and Fuller, supra note 16. Gardner does not cite a specific page from either source in support of this reading.

18. Fuller, Lon L, The Morality of Law, revised ed (New Haven: Yale University Press, 1969) at 39 Google Scholar [emphasis added].

19. On Hart’s vacillations on this issue see Waldron, Jeremy, “Positivism and Legality: Hart’s Equivocal Response to Fuller” (2008) 83 NYU L Rev 1135 at 1157-60Google Scholar.

20. Hart, HLA, The Concept of Law, 3d ed (Oxford: Oxford University Press, 2012) at 207 CrossRefGoogle Scholar [emphasis added]. To fully accept Fuller’s view Hart to state that laws that comprehensively fail in their function of guiding behaviour are not just bad laws but are non-laws. Hart never said this, which raises the question, considered in this essay, about the place of these principles in his theory.

21. Raz, Joseph, The Authority of Law: Essays on Law and Morality, 2d ed (Oxford: Oxford University Press, 2009) at 223 Google Scholar (“It is, of course, true that most of the principles [of legality] cannot be violated altogether by any legal system”); ibid at 226 (“As with some other tools … a thing is not of the kind unless it has at least some ability to perform its function. … The law to be law must be capable of guiding behaviour, however inefficiently”); Kramer, supra note 1 at 51-52; Shapiro, supra note 10 at 394-95.

22. Gardner, supra note 14 at 255.

23. Fuller, supra note 18 at 5.

24. Ibid at 39, n 1.

25. See, e.g., ibid at 157 (“law is a precondition for good law,” but the two are not identical); Fuller, Lon L, “The Forms and Limits of Adjudication” (1978) 92 Harv L Rev 353 at 357CrossRefGoogle Scholar(“attempt[ing] to define ‘true adjudication,’ or adjudication as it might be if the ideals that support it were fully realized”). For a general discussion of the place of ideals in Fuller’s legal philosophy see Winston, Kenneth I, “The Ideal Element in a Definition of Law” (1986) 5 Law & Phil 89 especially at 108-09CrossRefGoogle Scholar.

26. See Fuller, supra note 18 at 92; Fuller, supra note 15 at 655-56.

27. Fuller, supra note 18 at 197.

28. Gardner, supra note 14 at 257.

29. Fuller, supra note 18 at 41 [emphases added]; see also ibid at 42 (“The inner morality of law … embraces a morality of duty and a morality of aspiration”).

30. Hart, supra note 20 at 234.

31. Hart himself, as it happens, would have rejected this answer. See ibid at 215 (unlike “the allotment of proper names [like London] … the extension of the general terms of any serious discipline is never without its principle or rationale…. When [it is asked] ‘We know that it is called law, but is it really law?’, what is demanded … is that the principle be made explicit and its credentials inspected.”).

32. Ibid at 19-24, 82-85.

33. Ibid at 82.

34. Augustine, , The City of God, translated by Bettenson, Henry (London: Penguin, 2003) at 139 Google Scholar (§iv.4); cf Fuller, supra note 16 at 632. Hart, supra note 20 at 156, quotes Augustine’s words (in a different translation), but incorrectly cites Augustine’s Confessions.

35. Hart, supra note 20 at 210-14.

36. Ibid at 116.

37. Not surprisingly, Gardner disagrees with Hart on this point. Gardner, supra note 14 at 259. Hart himself seems to have backtracked from this idea in the Postscript to the book. See Hart, supra note 20 at 239-40.

38. I do elaborate on this point in a somewhat different context in Priel, Dan, “Is There One Right Answer to the Question of the Nature of Law?” in Waluchow, Wil & Sciaraffa, Stefan, eds, Philosophical Foundations of the Nature of Law (Oxford: Oxford University Press, 2012) 322 at 325-27, 331-36Google Scholar, and Priel, Dan, “Are Jurisprudential Debates Conceptual? Some Evidence from Democratic Theory” (2012) 50 Osgoode Hall LJ 359 at 364-77Google Scholar [Priel, “Jurisprudential Debates”].

39. Gardner, supra note 14 at 256-57.

40. Fuller, supra note 18 at 205, 234.

41. This idea is accepted by virtually all contemporary legal positivists. For example see ibid at 258, where Gardner says that the “telos [of rules] as rules … is to guide.” The idea that a primary function of law is guidance is accepted by most contemporary legal positivists. Other examples are cited in Priel, “Jurisprudential Debates,” supra note 38 at 364, n 8.

42. Fuller, supra note 18 at 162. It is for this reason that I agree with Gardner that there is “confusion” in describing this, or any, conception of the rule of law “formal.” See Priel, “Jurisprudential Debates,” supra note 38 at 382-84. Gardner places the blame for this confusion on a 1997 essay by Paul Craig. See Gardner, supra note 14 at 263, n 46. The fault, however, probably lies with Raz’s 1977 essay on the rule of law: “It is evident,” Raz says of his own view, “that this conception of the rule of law is a formal one.” Raz, supra note 20 at 214.

43. Fuller, supra note 18 at 40; see also ibid at 204.

44. In slightly different formulations this view is adopted in Gardner, supra note 14 at 254; Raz, Joseph, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, 2009) at 17678 CrossRefGoogle Scholar; Coleman, Jules L, “The Architecture of Jurisprudence” (2011) 121 Yale LJ 2 at 52-53Google Scholar; Shapiro, supra note 9 at 213-15; Green, supra note 4 at 1050.

45. For more on this last point see Priel, Dan, “The Place of Legitimacy in Legal Theory” (2011) 57 McGill LJ 1 at 10-14CrossRefGoogle Scholar.

46. For an example see Marmor, Andrei, “The Rule of Law and Its Limits” (2004) 23 Law & Phil 1 Google Scholar.

47. Ibid at 41.

48. There is some evidence that Fuller did not place much significance and was not personally very interested in these questions. See Winston, supra note 25 at 91, quoting a letter from 1972 that Fuller sent Samuel Mermin, in which Fuller writes: “I am not concerned with offering precise definitions of legal phenomena, but with analyzing the basic processes that constitute an entity of somewhat vague outlines that we call ‘a legal system.’” See also Fuller, supra note 18 at 242, where he expresses the hope that “legal philosophers will cease to be preoccupied with building ‘conceptual models’ to represent legal phenomena.”

49. Cf Rundle, Kristen, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford: Hart, 2012) at 59, 78Google Scholar. I ultimately differ in my strategy of “reclaiming” Fuller’s jurisprudence. Rundle seems to think that the right way to do so is by showing how Fuller’s work can be shown to be engaged in “conversation” with contemporary jurisprudential discourse. See ibid at 78-84, chs 6-8. In my view, this approach tames Fuller’s ideas and plays into the hands of his critics.

50. See Priel, supra note 45 at 29-30.

51. For my attempt to do that see Priel, Dan, “Fuller’s Political Jurisprudence of Freedom” (2014) Jerusalem Rev Legal Stud [forthcoming].CrossRefGoogle Scholar

52. For an example of these two assumptions, stated but not defended, see Marmor, supra note 7 at 133-34.