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Fuller and the Folk: the Inner Morality of Law Revisited

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Fuller and the Folk: the Inner Morality of Law Revisited Forthcoming in T. Lombrozo, J. Knobe, & S. Nichols (Eds.), Oxford Studies in Experimental Philosophy, Volume 3. Oxford: UK, Oxford University Press. Fuller and the Folk: The Inner Morality of Law Revisited Raff Donelson Ivar R. Hannikainen LOUISIANA STATE UNIVERSITY PONTIFICAL CATHOLIC UNIVERSITY [email protected] OF RIO DE JANEIRO [email protected] The philosophy of law, or jurisprudence, is an concept has—this empirical debate would area of study wherein experimental methods benefit from empirical research. In are largely absent but sorely needed. It is particular, we might seek out folk puzzling that the experimental turn has been psychological evidence, predicated on the slow in coming to jurisprudence, as the field positive impact such evidence has had in other straddles two disciplines where empirical domains of philosophy. evidence is increasingly common. On one The foregoing may not be convincing. flank, empirical studies have long been Traditional legal philosophers who do not use popular among non-philosophers in law empirical methods will need to hear more to departments; on the other, experimental appreciate why strange, new techniques methods now abound in many areas of might be appropriate. Experimental philosophy. philosophers who have yet to consider While it is difficult to understand why few jurisprudence will need to hear more about have adopted an experimental approach to the subfield and its issues to understand how jurisprudence, it is clear why experimental they might contribute. We hope to address jurisprudence should be on the agenda: legal such philosophers and others, but not with a philosophers routinely ask questions that are purely metaphilosophical tract. Instead, our explicitly empirical. To give just one brief essay aims to exemplify the potential for example, consider the fact that in experimental approaches to jurisprudence. As contemporary jurisprudence, some such, we focus on a narrow issue in philosophers are concerned, in part, to give jurisprudence. We appraise Lon Fuller’s the correct account of our concept of law or procedural natural law theory using our concept of a legal system (Raz 2009), experimental techniques. Admittedly, his is while others are anxious to show that there is just one of many theories about law; however, no single concept of law (L. Murphy 2005; it is a prominent theory, and legal Priel 2011). It would seem that this debate— philosophers have written extensively to about whether we have a shared concept of criticize (Hart, 1965; D’Amato, 1981), defend law at all, and if so, what contours that (C. Murphy, 2005), and extend that theory (Winston, 2005). If our experiments usefully made public for those regulated to learn of add to this debate, we thereby establish the their rights and duties), and the prospectivity legitimacy and value of experimental principle (that a legal rule of conduct may only jurisprudence. regulate conduct performed after the The trajectory of the essay is as follows. We promulgation of said rule of conduct).1 Since begin with background on Fuller’s theory of its initial formulation in the 1960s, Fuller’s law and on the state of jurisprudence. For theory has been widely discussed and those well-versed in those debates, this can be continues to enlist new adherents. This is not skimmed or skipped. Next, we offer an surprising because the view has certain overview of the studies that we performed. In theoretical virtues, virtues one can identify this overview section, we state with precision upon reviewing other well-known views in how our experimental approach helps to this debate. assess Fuller’s theory. After the overview, we If the key discussion in jurisprudence is the present each of the three studies themselves. search for necessary and sufficient conditions For each study, we discussion our predictions, for law, the most notorious debate within that the motivating thoughts behind those key discussion concerns whether a norm has predictions, the manner by which the to have particular content in order to count as experiment was performed, and the results. legal norm. Legal philosophers have been In the final section of the essay, the general especially interested in whether a norm’s discussion, we elaborate on results of our content has to comport with the strictures of research and explore their limitations, and morality in order to be a legal norm. If a norm muse in more broad-minded way about the permits or even requires those subject to it to future of experimental jurisprudence. perform grossly immoral acts, can that norm be a legal norm? That kind of question has Fuller’s procedural natural law theory long been the hot-button issue in jurisprudence. Those who answer in the The key discussion in jurisprudence concerns affirmative are, roughly speaking, legal the necessary and sufficient conditions positivists; whereas, those who answer in the something must satisfy in order to count as a negative are, roughly speaking, natural law law or a legal system. Fuller (1969) offered a theorists. Legal positivism has a long list of major contribution to this discussion when he famous proponents (e.g., Austin, 1998; proposed a novel set of necessary conditions. Kelsen, 1967; Hart, 1994; Raz, 2009; Specifically, Fuller argued that a social Waluchow, 1994; Shapiro, 2011); while arrangement is a legal system insofar as that natural law theory has its own list of famous arrangement satisfies eight principles that he proponents (e.g., Aquinas, 1994; King, 1986; collectively called “the inner morality of law.” Finnis, 1980; Dworkin, 1986; Murphy, 2011). These principles include the generality Fuller set himself apart by straddling the principle (that legal systems must have divide between the two camps. general rules of conduct), the publicity principle (that legal rules of conduct must be 1 We reproduce the full set of Fullerian principles below and only offer this abbreviated list to help fix ideas. 2 Scholars are often drawn to natural law sees as necessary features of law, laws theory because they hold as a considered minimally treat people fairly. Arguably, this judgment the thought that, prima facie, those feature of law would deserve respect and subject to a law’s provisions have a moral would give subjects some moral reason to reason to obey it. Or to put this considered comply with law. To illustrate the minimal judgment another way, prima facie, law sense in which law treats people fairly on deserves subjects’ respect. If this considered Fuller’s theory, consider two of his principles. judgment is used as a desideratum for The publicity principle (that legal rules of selecting one’s theory of law, one will endorse conduct must be made public for those some content restriction as a condition for regulated to learn of their rights and duties) some norm to count as law. On the other and the prospectivity principle (that a legal hand, scholars are often drawn to legal rule of conduct may only regulate conduct positivism because they hold as a considered performed after the promulgation of said rule judgment the thought that some laws are of conduct) together imply that law unjust such as those of the Third Reich, necessarily gives subjects fair notice of which apartheid South Africa, and the antebellum behavior will elicit adverse state responses. American South. The foregoing explains how Fuller can Because, for Fuller, a norm can be law only accommodate one of the driving thoughts if it has certain content (e.g. it is prospective behind traditional natural law theory, but he and not retrospective), his view is often does not incur that theory’s key theoretical classed as a version of natural law theory. cost, denying that there are unjust laws. It is However, Fuller’s natural law theory differs to Fuller’s theoretical advantage over other from more familiar versions of natural law natural lawyers that he can claim with legal theory which claim that a norm is a law only positivists that some norms are both unjust if the norm is just (Aquinas, 1994; King, 1986) and legal in the fullest sense. or claim that unjust norms can, at best, be Before concluding this section on Fuller’s defective instances of law (Finnis, 1980; work and its place in contemporary Murphy, 2011). Fuller’s conditions only jurisprudence, we summarize the eight disqualify norms which exhibit certain principles which comprise Fuller’s inner procedural failings from being laws. Thus, for morality of law. The principles are as follows. Fuller, many unjust norms can be laws, and (For ease of exposition, n will signify some only some unjust norms would fail to be laws. norm, L will signify law, and all claims For this reason, commentators often label concern a single jurisdiction.) Fuller’s view an instance of procedural natural law theory. CONSISTENCY: n1 and n2 are both L only if n1 Fuller’s procedural natural law theory and n2 are mutually consistent might be thought to enjoy theoretical virtues of both traditional natural law theory and ENFORCEMENT: n is L only if the published legal positivism. Fuller’s view can version of n accords with how n is enforced countenance the considered judgment that GENERALITY: n is L only if n is a general rule law, prima facie, deserves subjects’ respect. of conduct Given the procedural constraints that Fuller 3 INTELLIGIBILITY: n is L only if n can be whether his attempt has been successful. The understood by subjects folk intuitions are the very subject of Fullerian claims on this construal. Alternately, insofar POSSIBILITY: n is L only if n requires only those acts subjects are physically capable of as Fuller attempts to do descriptive analysis of performing law, analysis of what law actually is, folk intuitions bear indirectly on whether Fuller is PROSPECTIVITY: n is L only if n regulates right.
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