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This chapter reviews The Morality of Law, by Lon L. Fuller, one of the most important books in
jurisprudence published in the twentieth century. Fuller offers an account of the rule of law and
its connection to morality that has influenced not only legal philosophers, but also a wide range
of political theorists and social scientists. This chapter provides some background that led to the
publication of The Morality of Law, considering in particular Fuller’s response to Hart’s lecture
on legal positivism, delivered in 1956 at the Harvard Law School. It also discusses the
publication of The Morality of Law in 1964 and its description of eight “principles of legality”:
generality, promulgation, no retroactive laws, clarity, no contradictions, no laws requiring the
impossible, constancy of the law through time, and congruence between the official action and
declared rule.
This presentation focuses on two important non-legal positivists of the last hundredyears: Gustav
Radbruch (1878–1949) and Lon L. Fuller (1902–1978). Thepresentation’s aim is to point out
similarities and differences between their concepts oflaw.In a short essay from 1946, based on
his experience with the Nazi regime, Radbruchclaimed that National Socialist ‘law’ lacked the
validity and nature of law. His claimwas later called ‘Radbruch’s formula’. He said,The conflict
between justice and legal certainty may well be resolved in this way: Thepositive law, secured by
legislation and power, takes precedence even when its
content is unjust and fails to benefit the people, unless the conflict between statuteand justice
reaches such an intolerable degree that the statute, as ‘flawed law’, mustyield to justice. It is
impossible to draw a sharper line between cases of statutorylawlessness and statutes that are
valid despite their flaws. One line of distinction,however, can be drawn with utmost clarity:
Where there is not even an attempt atjustice, where equality, the core of justice, is deliberately
betrayed in the issuance ofpositive law, then the statute is not merely ‘flawed law’, it lacks
completely the verynature of law. For law, including positive law, cannot be otherwise defined
than as asystem and an institution whose very meaning is to serve justice. Measured by
thisstandard, whole portions of National Socialist law never attained the dignity of validlaw
Justice as highest moral value of law: A comparative analysis of Gustav Radbruch and Lon
Fuller

FULLER ON LEGAL POSITIVISM AND THE CAUSAL THESIS

Cont. after pdf…..

Justice, for many people, refers to fairness. But while justice is important to almost everyone, it
means different things to different groups. For instance, social justice is the notion that everyone
deserves equal economic, political, and social opportunities irrespective of race, gender, or
religion. Distributive justice refers to the equitable allocation of assets in society. Environmental
justice is the fair treatment of all people with regard to environmental burdens and benefits.

Restorative or corrective justice seeks to make whole those who have suffered unfairly.
Retributive justice seeks to punish wrongdoers objectively and proportionately. And procedural
justice refers to implementing legal decisions in accordance with fair and unbiased processes.

Justice is one of the most important moral values in the spheres of law and politics. Legal and
political systems that maintain law and order are desirable, but they cannot accomplish either
unless they also achieve justice. Ever since law has been recognized as an effective instrument of
social ordering there has been an ongoing debate on its relationship with morality.

According to Paton, morals or ethics is a study of the supreme good. In general, morality has
been defined to include: all manner of rules, standards, principles or norms by which men
regulate, guide and control their relationships with themselves and with others.

Both, law and morality, have a common origin. In fact, morals gave rise to laws. The State put its
own sanction behind moral rules and enforced them. These rules were given the name law.

In The Morality of Law, Lon L. Fuller argues that law is subject to an internal morality consisting
of eight principles: (P1) the rules must be expressed in general terms; (P2) the rules must be
publicly promulgated; (P3) the rules must be (for the most part) prospective in effect; (P4) the
rules must be expressed in understandable terms; (P5) the rules must be consistent with one
another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7)
the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the
rules must be administered in a manner consistent with their wording (Fuller 1964, p. 39).
On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality
can achieve law’s essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are “internal” to law in the sense that they are built into the
existence conditions for law: “A total failure in any one of these eight directions does not simply
result in a bad system of law; it results in something that is not properly called a legal system at
all” (Fuller 1964, p. 39).

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller’s view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptual
connection between law and morality that is inconsistent with the separability thesis.

Fuller’s principles operate internally, not as moral ideals, but merely as principles of efficacy. As
Fuller would likely acknowledge, the existence of a legal system is consistent with considerable
divergence from the principles of legality. Legal standards, for example, are necessarily
promulgated in general terms that inevitably give rise to problems of vagueness. And officials all
too often fail to administer the laws in a fair and even-handed manner-even in the best of legal
systems. These divergences may always be prima facie objectionable, but they are inconsistent
with a legal system only when they render a legal system incapable of performing its essential
function of guiding behavior. Insofar as these principles are built into the existence conditions
for law, it is because they operate as efficacy conditions-and not because they function as moral
ideals.
Fuller’s jurisprudential legacy, however, should not be underestimated. While positivists have
long acknowledged that law’s essential purpose is to guide behavior through rules they have not
always appreciated the implications of this purpose. Fuller’s lasting contribution to the theory of
law was to flesh out these implications in the form of his principles of legality.

Ram Lakhan V. State on 5th December 2006 137(2007) DLT 173

In this case, a beggar was found begging and he was arrested in a Certified Institution for 1 year
(later reduced to 6 months) under Section 5(5) of Bombay Prevention of Begging Act, 1957.
Hon’ble High Court looked after various circumstances:

1. A person begs when he is unemployed.

2. He may be an alcoholic or drug addict.
3. He might be involved in some sort of gang or something.
4. He may be helpless, starving, poor, or in desperate need of food.

It was concluded that a person found begging need not and ought not to be detained in a Certified
Institution because his act of solicitation was not voluntary but under duress. The beggars beg to
survive and the authority must look that nobody should beg.