sign in sign up
<<
Home , Hans Kelsen, Law (principle), Natural law, Philosophy of law

The

Volume 11 Number 2 Volume 11, Spring 1965, Number 2 Article 3

The Natural of Lon L. Fuller

Charles L. Palms, C.S.P.

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more , please contact [email protected]. THE NATURAL LAW PHILOSOPHY OF LON L. FULLER

CHARLES L. PALMS, C.S.P.*t M UCH OF THE NEW EMPHASIS on natural law can be traced to the failure of , the prevailing legal philosophy, to give meaningful answers to the problems of life in ; also to the fear generated by the dreadful of "lawless law" enacted by totalitarian dictatorships like Adolph Hitler's. One contemporary legal who has been vitally aware of the failure of and who was articulately urging a return to the natural law even before the full tragedy of Hitler had run its course, is the present Carter Professor of General at the Harvard , Lon Luvois Fuller. Professor Fuller was born at Hereford, Texas, in 1902. He received his Bachelor of Arts degree from Stanford University in 1924. After acquiring his Doctor of degree from Stanford in 1926, Professor Fuller taught at the University of Oregon Law School (1926-1928), the University of Illinois College of Law (1928-1931) and Duke University Law School (1931-1939). Since 1940, Professor Fuller has been asso-

* B.S.S., Georgetown University; LL.B., ; M.A., St. Paul's College; Associate Editor, THE CATHOLIC WORLD. t Just as is divided into substance and procedure, so the natural law philosophy of Lon L. Fuller conveniently divides itself into a substantive aspect and a procedural one. Fuller's natural law philosophy is not complete unless it is presented under both aspects. Under the substantive rubric, Fuller probes the meaning of law as it relates to the proper ends to be sought through legal rules. In dealing with the procedural aspect, Fuller studies the necessary pre- conditions for law, such as , clarity, proper administration and enforcement, etc. It is difficult for the student of legal to find a systematic presentation of Professor Fuller's legal philosophy. Much of Fuller's legal writing is to be found in occasional law review articles and book reviews. Until the present article was written, no comprehensive presentation of Fuller's natural law ap- roach to the substantive aspect of law existed. Professor Fuller himself has recently provided us with an organized presentation of the procedural aspect, which he terms the "internal of law" (The Morality of Law, New Haven: Yale University Press, 1964). The present article, combined with Fuller's recent book, makes it possible for the student of legal theory to examine the natural law thinking of one of America's foremost legal . IWard, The 'Natural Law' Rebound, 21 REV. OF 119-20 (1959). FULLER ciated with the Harvard Law School. He as a result of the law's quest for an exclu- is also on the Editorial Board of the sive hegemony of its own where it could Natural Law Forum. Father Leo R. Ward, be free from the complications of C.S.C., Professor of Philosophy at the Uni- and philosophy., Hobbes believed that the versity of Notre Dame, has referred to one prime objective of law was to achieve of Professor Fuller's books as "one of the and order in society. Ethics and phi- simplest and most modest and yet most losophy complicated things by supplying deceptively powerful affirmations of natu- for ignoring or disobeying the law. ral law in our time...... Because the of men tended to The present study of Fuller's natural conflict, and because resort to was law philosophy consists of two basic parts: unable to bring about the requisite peace the first presents Fuller's critical exposition and order in society, sovereign authority of the inadequacies of legal positivism; had to be the dominant influence in so- the second sets forth Fuller's own natural ciety. This authority resided in the king or law views. protector, and the rules of the sovereign for settling disputes were the law. Accord- Critique of Legal Positivism ing to Hobbes' theory, the law was su- In 1939 Professor Fuller wrote, in re- preme and men had to blindly obey re- viewing Hall's Readings in Jurisprudence: gardless of personal .'. Often what an author "stands for" is much Hobbes, however, did not entirely aban- less important than how he got to where don reason. Ideally, the sovereign was to he is standing; the negative side of a man's follow it and enact reasonable . work, his critique of opposing views, is often-perhaps usually-more important But if the sovereign were unreasonable, 4 than his affirmations. and enacted an unjust law, the reasonable man would be expected to obey the law The next year Professor Fuller presented in the interests of peace and order." Thus, the negative side of his own work, a public order would replace as the lucid critique of the influence of positivist ultimate criterion of law. on American law.5 Tracing the history of positivist theories from English About a century later, John Austin philosopher through the agreed with Hobbes that the starting point so-called American Legal Realists and the for law could not be that which is right School of , Fuller ar- or just. This would be "cut-throat " 0 gues that legal positivism is intellectually leading to social upheaval. It was the sov- unsound and that its teachings have dis- ereign that gave coherence to the legal sys- astrous practical results for society. tem and offered a clear-cut definition of law. Therefore, Austin defined law as the English Positivism command of the . In Austin's opinion, Legal positivism developed in however, Hobbes had oversimplified the

2 FULLER, THE LAW IN QUEST OF ITSELF (1940). 6 Id. at 16-17. " Ward, supra note 1, at 116. 7 Id. at 19-25, 86-87. 4 Fuller, Book Review, 87 U. PA. L. REV. 625-26 3 Ibid. (1939). . Fuller, American Lggal Philosophy at Mid- SFULLER, op. cit. supra note 2. Century, 6 J. LEGAL ED. 457, 459-60 (1954). 11 CATHOLIC LAWYER, SPRING 1965 of the sovereign. Austin wanted to law?11 One answer to this last question is identify the sovereign precisely. Once he that there really are no gaps in the law had located the sovereign, he felt that he of the sovereign. What the sovereign has would have the of law and thereby not forbidden he implicitly permits. This pinpoint the unifying force in law. answer is typical of the fantasy that Aus- Austin found it difficult to locate the tin's theory had led him into. sovereign, however, because the system of Professor Fuller points out that in de- checks and balances had complicated the fining the law in terms of its source (the structure of the state. How to explain law sovereign) the positivists had one advan- laid down by independent of the tage. They could point to a or a king? To Hobbes, the was the agent command and say, "This is law." What of the sovereign, and the ruler adopted the the sovereign does is clear; it makes posi- judge's decision as his own. Austin could tivism possible. But a question that re- not accept this answer; it was more meta- mained unresolved in the theories of phor than actual fact. Austin, therefore, Hobbes and Austin was the precise identity redefined the sovereign as that person or of the sovereign. Fuller asks: group of persons which society was in the Is it (the sovereign) a real thing, a datum habit of obeying. Thus, Austin rested the of nature existing apart from men's think- foundations of the legal order on habit or ing? Or is it merely a way of viewing the custom.1 0 world of possible legal phenomena? Is it 12 Professor Fuller notes that instead of an actuality, or a metaphor? solving the theoretical problems raised by Austin's writings were tinged with am- Hobbes' analysis of the law, Austin's de- biguity on this point, 3 and anxious to velopment raises more embarrassing ques- clear up the problem, Austin's philosophi- tions. Suppose, the bulk of society ceases cal heirs diverged along two lines: the 4 to render obedience to law - what hap- "realists," and the "pure law" theorists.1 pens to the sovereign? Suppose certain In America and Europe a school of commands of the sovereign are occasion- legal "realists," enamoured with the sci- ally ignored - is the ignored command entific method, abandoned the metaphori- still law? Suppose the sovereign issues con- cal sovereign of Hobbes and the ephemeral tradictory commands - which one is the custom of Austin, and rested the basis of law? Suppose the sovereign declares that law on a more concrete datum of nature. his power is legally limited, for example, They sought law in external just as by a two-thirds vote of the populace -is the physicist seeks physical laws in the lab- the real sovereign power in the people? oratory experiment. They wanted a law Finally, the most difficult question of all easily identified and purified of ethics and - suppose there -are gaps in the law? morality.15 Doesn't every gap represent a possible In Vienna, another school developed. point of entry for ethics and philosophy, the very complication that Hobbes and 11 FULLER, Op. cit. supra note 2, at 33-38. Austin were trying to eliminate from the 1 Id. at 45. ,Id. at 46. 14 Id. at 46-47. - Ibid. FuLI.ER, Op. cit.supra note 2, at 26-31. 1 Id. at 46-47, 53. FULLER

Hans Kelsen saw the futility of founding pose that when a number of judges are law either in the sovereign or custom or sitting in on a case that the other datum of nature. Kelsen believed in "majority" lays down a decision. A major- an of pure law - purified of morality ity is a corporate entity, and the flesh and which he called "wish law."' 6 Realizing, blood reality that the "realists" had found however, that this pure law could not be in the judge-made rule is lost. Gray ended founded in a datum of nature, he was bold up with the same problem that Austin enough to base his pure law on a simple never solved - trying to identify the sov- methodological assumption. 7 ereign.' 9 Oliver Wendell Holmes had reservations A merican Positivism of his own about Gray's definition of law Professor Fuller, concerned principally as "the rules laid down by the ." He with legal positivism as it has affected the saw that what judges say is different from American scene, concentrates his critique what judges do. Holmes suggested that the of legal positivism primarily on the Amer- definition of law should be the rules acted ican legal realists. The more prominent on by . This tendency of the realists members of this school include , in the direction of increasing realism was Oliver Wendell Holmes, Joseph W. Bing- taken up by Bingham, Cook, Llewellyn ham, Walter Wheeler Cook, Karl N. and Frank. Agreeing with Holmes, they Llewellyn, Frank, W. Underhill defined law in terms of the patterns of Moore and Edwin W. Patterson. judicial behavior. Law was a generaliza- John Chipman Gray, in his Nature and tion of the way judges act. Just as the be- , abandoning Austin's cri- havior of atoms was the concern of the teria of custom, reverted to Hobbes' sover- physicist, so the behavior of judges was the eign, utilizing however, a more scientific concern of the lawyer. 2 Why, asks Profes- approach. He held that the sovereign was sor Fuller, stop at the behavior patterns of not a "determinate" group of persons but judges? What about the behavior of com- a shifting and anonymous body. The state missioners, the sheriff and the sanitary was an artificial unity; the real unifying inspector? These officials make rules that in the practice of an attorney was affect us- ones that they talk about and the judge, a flesh and blood reality. Here then act on. Wouldn't every state official was a concentration of power in a definite have to be included within the realist 21 . The law was, therefore, de- ? fined as "the rules laid down by the Professor Underhill Moore took the be- 6 courts."' havioristic approach one step further. He Professor Fuller points out that Gray held that law was determined by "institu- ' 2 has not yet answered all the questions. tional patterns of behavior. " 2 Banking What about the "inconsiderate" sovereign Law, for example, would be determined - two judges at odds with each other who hand down contrary opinions? And sup- 19 Ibid. 201d. at 51-53. 1 Id. at 5. 21 Id. at 53. 17 Id. at 47. 22 Fuller, American , 82 U. PA. L. 1,1Id. at 49. REV. 429, 453 (1934). 11 CATHOLIC LAWYER, SPRING 1965 in part by the observed behavior patterns of the complications of ethics and morality of bank tellers. Professor Fuller objects to and of every non-legal influence. He could Moore's behavioristic approach. He points not accept, however, the realist approach out that behavior is often the expression of to this ideal. The realists were trying to underlying mental attitudes, and that an separate the law that is (the "pure law" analysis of these attitudes of mind involves datum of nature) from the law that ought more than the mere rationalization of be- to be (ethics and morality). Yet realism havior.2 3 Moreover, regularities of behavior yielded no useful test of this law that is. do not always provide the of the pat- Ultimately, every kind of behavior pattern tern. Often it is the unusual case that pro- was law. There was no standard behavior vides the norm because in such a case, the that was not law, i.e., mis-behavior. Be- mental attitude behind the pattern is sides, the study of behavior was not prop- 28 shown. It is not the behavior itself, but the erly legal study at all. purpose behind the behavior that is im- Going back to Austin, Kelsen saw that portant to the lawyer and judge. For judges the English was begging the whole to simply search out and catalogue the question by assuming that the sovereign habits of bank tellers is to make the bank was the essence of law. Kelsen asked, if teller the judge instead of the man sitting the sovereign defines what is law, how do 2 4 on the . we define and describe this sovereign ex- Finally, Professor Fuller asks, even if cept by a legal order that the sover- 29 behavior patterns are the basis of law, how eign admittedly does not enact? are judges to know these behavior patterns Isn't the very sovereign who defines a in deciding cases? Can these patterns be law, brought into and delimited observed and recorded?25 Is there some by some pre-existing which way that judges' attitudes and ideas are places the law-making power in the hands moulded by a cultural matrix whose pat- of the sovereign in the first place? Law terns are engraved by frequency? How then becomes law in of rules that 30 does a judge get to know all the patterns are not "law.." of activity of bank tellers?26 Fuller suggests Kelsen pushed his search for "pure law" that the realists' insistence on law as a be- to its logical conclusions. He saw that the havior pattern is reliance on an even search for the sovereign begun by Austin 27 greater phantom than Austin's sovereign. and continued by the realists ended in ab- surdity. Yet Kelsen believed that Austin's Kelsenianism sovereign served a good purpose. The sov- Hans Kelsen reacted against absurdities ereign prevented ethics and morality from implicit in the theories of the legal realists complicating the law. Thus, Kelsen re- and their Austinian forebears. He believed tained the purpose for which the sovereign in the positivist ideal- purifying the law existed and rejected the search for the sov- ereign in any flesh and blood reality. 3 Id. at 455. Kelsen, therefore, carefully analyzed the '4 Id. at 457-58. FULLER, op. cit. supra note 2, at 57. 28 Id. at 66-69. _0 Fuller, supra note 22, at 459. 29 Id. at 81. - FULLER, op. cit. supra note 2, at 59. 30 Fuller, supra note 9, at 460-61. FULLER purpose that the sovereign served, adopted ing a critique of legal positivism for criti- the minimum of assumptions necessary to cism's sake. His critique of positivism is accomplish this purpose and these as- more a by-product of his unrelenting quest sumptions down in a sort of . His for the underlying assumption of the law law was not, therefore, founded in any and legal theories. He has called his quest flesh and blood reality like the sovereign or a rationalistic one. In pushing reason as far judicial behavior, but rather upon a fiction as he can, Fuller sees the purpose of legal - a methodological premise. Kelsen whit- philosophy as a quest for those tled his starting point down to a minimum that make possible the successful liv- of metaphor. He made an honest fiction ing together of men.34 He sees the basic out of positivismA1 task of the lawyer as a search for and Instead of the sovereign of Austin or justice'--finding ways by which people can judicial behavior patterns of the realists, live and work together successfully.-" The Kelsen substituted the idea of the "basic task of the lawyer goes on in a dynamic norm." Professor Fuller points out that social order, and law must be able to re- Kelsen's theory of the "basic norm" admits spond to ever changing situations." The that one must accept at least one pre-exist- ideal is a just social order, and the law ing rule governing the law-making process must always struggle to approach this ideal. before the law-making process itself can Professor Fuller sees the quest of the get started. The basic norm, being ex- positivist as stopping precariously short of pressed in the singular, reduces this in- the goal of law. Positivism does not seek to dispensable starting point to an ideal but promote ethical or moral or social goals 2 fictitious minimum.3 for society. A positivist is fearful of ethics Professor Fuller concludes that though and morality which he confuse and realism and Kelsenianism commence in op- distort the law. Positivism claims to have posite directions, they terminate with much discovered the raw datum of law-the in common. Both reject the unreal sover- basic fact of law beyond which ethical re- eign of Austin. Both see that as soon as search is useless2 8 the law tries to become "scientific" the The of positivism is this: road forks sharply, one branch leading to law can be discovered, sought out, exam- the realm of pure fact (the realists), the ined and defined3 1 It is not the expression other leading to the realm of pure assump- of the non-existent ideal of justice. In any tion (Kelsenianism). Each takes a differ- given rule of conduct there is a basic dis- ent branch and is determined to follow it tinction between what is in fact the law, and logically and uncompromisingly. Each what that law ought to be. Therefore, the reaps the results of its own limitation of 3 method . 31 Fuller, On Teaching Law, 3 STAN. L. REV. 35, 46 (1950). Separation of "Is" and "Ought" 35 Fuller, Objectives of , 2 REC- ORD OF N.Y.C.B.A. 120, 121 (1947). Professor Fuller is not interested in mak- 36 FULLER, THE PROBLEMS OF JURISPRUDENCE 694 (1949). 31 FULLER, op. cit. supra note 2, at 69-75. 13 FULLER, op. cit. supra note 2, at 121. '1Fuller, supra note 9, at 461. :18Id. at 109. 33 FULLER, op. cit. supra note 2, at 76. : 9 Fuller, supra note 4, at 627. II .CATIOLIc LAWYER, SPRING 1965 task of the legal philosopher is to give the The problem I have in mind is that which principles for making this distinction, and arises when we attempt to reconcile the now the task of the lawyer is to find out what generally accepted dichotomy of fact and ° with a purposive interpretation of actually is.4 the law human behavior. For it is my thesis that Austin's positivism meant something set when we accept the full consequences that (positus) by the human of the sover- flow from a view which treats human ac- eign;4' therefore, the law that is was found tion as goal-directed, the relation between in the expressed will of the sovereign. The fact and value assumes an aspect entirely different from that realists, as stated previously, ultimately lo- implied in the alleged "truism" that from what is nothing what- 4 cated the law that is in the behavior pat- ever follows as to what ought to be . 3 terns of judges. Others who fall into the general classification of positivists either Professor Fuller always brings his thesis hold that the law that is can be found in down to the concrete test of its soundness. some observable phenomena, or hold with In simple examples he shows that what the Kelsen, that the law that is is not found in law is cannot be separated from what it is the observable, but is located in a meth- for, and what it is for cannot be separated odological premise. from what it ought to be. Professor Fuller's with posi- A judge, for example, cannot properly interpret a law without considering its pur- tivism goes much deeper than occasional objections to the particular theories of Aus- pose. Positivists have tried to argue that words have a core of meaning and that this tin, Kelsen and the legal realists. Fuller at- tacks positivism at its very core. He takes core is enough for the judge to work with. the basic premise of the positivists-the Fuller poses the case of a statute which ex- cludes "vehicles" striving for a complete separation of the is from parks, and then and the ought in law-and shows first that asks if such a law would exclude a truck it cannot be justified in terms of reality. used in II mounted on a pede- as a memorial.44 He thereafter points out in example after stal example how this attempted separation One cannot interpret a word in a statute leads to disastrous consequences in prac- without knowing the aim of the statute. tice. Suppose a statute reads: "All improve- ..." The thesis that has dominated Professor ments must be promptly reported to. Fuller's writing over the years is the in- Notice how the meaning of "improve- separability of is and ought in the law. In ments" changes when you fill in "to the 1940 he wrote: "In the field of purposive head nurse," or "to the town planning human activity, which includes.., the law, authority." The word "improvements" has value and being are not two different no extra-legal standard that helps interpre- things, but two aspects of an integral re- tation here. We know what the rule is only be.45 ality. '4 2 Sixteen years after the above was in the light of what the rule ought to written, Professor Fuller was still making 43 Fuller, Human Purpose and Natural Law, 3 the same point: NATURAL L. F. 64, 68 (1958). 40 FULLER, op. cit. supra note 2, at 4-6, 55-56, 44 Fuller, Positivism and Fidelity to Law-A Re- 60-61. ply to Professor Hart, 71 HARV. L. REV. 630, 41 Fuller, supra note 4, at 627. 661-63 (1958). 42 FULLER, op. cit. supra note 2, at 11. I'Id. at 664-66. FULLER

In another example, Professor Fuller When Professor Fuller rejects the posi- supposes that an engineer, awkward in tivist attempt to exclude ought from the English, drafts instructions for the assembly law by making an absolute distinction be- of a machine. A professor of English and tween is and ought, he does not deny that a mechanic both read and follow the in- there is some legitimate distinction between structions. The professor applies the words fact and value, and that it can be useful. of the instructions in their literal sense and Fuller's point is that the absolute distinc- gets into trouble. The mechanic hardly tion cannot be made the basic premise of notices the literal meaning and looks to any legal philosophy because it is not in what the engineer was trying to say. He as- accord with basic reality in which the is sembles the machine easily. The professor and the ought are both present. One can- was refraining from "value judgments" and not confine one's study to the is in the law kept the distinction between is and ought. and exclude the ought. Both are part of But Fuller asks, who penetrated most truly an integral reality. The distinction between to the empirical fact of these instructions, is and ought may be useful for analyti- the professor of English or the mechanic?" cal purposes, but it cannot be assumed as a Positivism makes the rigid distinction be- starting point."' In other words, the analy- tween is and ought in order to promote sis of law must begin with , not clear thinking in law. But Fuller asks if self-imposed abstraction. One cannot sepa- clarity in legal discussions is really ad- rate the inseparable; and the positivist at- vanced by this sharp distinction. The draw- tempt to make such a separation leads to ing of distinctions is not an activity that unfortunate results. can be an end in itself. Fuller facetiously The attempt to eliminate the ought from supposes that one might write a long trea- the law has tremendous implications in the tise on the sharp distinction between pie life work of the judge, the lawyer, the pro- and cake "disposing definitively of all the fessor and student of law and the legal hard borderline cases, like Boston cream scholar. 50 pie and upside-down cake. .. ." Nor is it The judge: Shall he be faithful to exist- an answer to say that the distinction be- ing law, or assume a more creative role? tween is and ought involves the distinction Suppose he has impulses toward reform? between law and morality, that these con- Can he improve a while transmit- cepts are important, and therefore must be ting it?' Not as a positivist. distinguished. Is it important to distinguish The lawyer preparing a brief: Shall he pie and cake because they deal with the argue the letter or the spirit of the law? important subject of human nutriment? The Shall he argue the of his client or the question is, whether drawing the sharp line rightness of the case? 52 Positivism dismisses is important. Does making this distinction the argument of "rightness." really dispel confusion? Does it really 8 help?4 4' Id. at 7-12; Fuller, supra note 22, at 451-52. 5 FULLER, op. cit. supra note 2, at 2-4. a1 Fuller, supra note 9, at 469. Id. at 12; Fuller, supra note 44, at 646-47. 47 FULLER, op. cit. supra note 2, at 86. FULLER, THE LAW IN QUEST OF ITSELF 12 4S Id. at 85-89. (1940). 11 CATHOLIC LAWYER, SPRING 1965

The professor: How shall he teach? Will about specific rules of law or specific prob- he ignore the ethical foundations of the law lems of legislation or decision. Positivism, -the law that ought to be?53 He will as a in a pure science, ends up by positivist. confining itself to terminological disputes. 59 The student: Shall he seek the profes- Professor Fuller cites some examples as sor who expounds "the existing law," or of the sterility and formalism of the one who delves into the "shifting ethi- positivism. (1) The notes on recent cases '54 cal background of the law?" A positivist published in the various law reviews in the seeks the law that is. nation and written by law students reflect The scholar: Shall his legal writing state a good cross section of the working philos- the law or his ideas of what the law ought ophy of our law schools. Usually these 55 to be? Ought is outside the realm of posi- notes deal with cases that touch the law at tivism. a vital spot-where it is growing. Instead Positivism, in taking (ought- of trying to see if the law is growing in the ness) out of law, tends to reduce law to a right direction, the analyst usually objects pure science., Thus, positivism fails to to the fact that the law is growing. Often give a profitable and satisfying direction to the dissatisfied analyst will write that the the creative application of human energies decision was based on "extra-legal consid- in the law. It defeats the very function of erations" which are not discussed by the legal philosophy-to decide how the law- student authors. Obviously the law that yer may best spend his professional life.57 ought to be is not legally relevant to these Ideally, the administration of a legisla- students." (2) The modern preference for tive or decisional rule is a process by which legislation as a means of legal reform indi- the rule is enabled, through the constant cates that and judges do not suffi- purposive reinterpretation of judges in ciently recognize the purposive and crea- varying factual situations, to become more tive element in the law.61 (3) In Britain, and more what it ought to be. Positivism, the law has become so formalized that in excluding purpose or oughtness, delib- commercial cases seek arbitration rather erately takes the striving for out than judicial . Arbitrators are of the law. The law, instead of growing and willing to take into account the changing reproducing itself anew in each fresh fac- needs of commerce and the ordinary stand- 8 tual situation, remains sterile.5 ards of commercial fairness. The judicial Positivism is scientific. It seeks to extract law that is refuses to bend to needs that the law that is, leaving to politics or some demand a law that ought to be.6 2 (4) In other discipline the law that ought to be. this country where our written In failing to say anything significant about is authoritatively interpreted by a Supreme the content and purpose of law, positivism Court, lawyers unfortunately think more loses its capacity to say anything at all about what the will do, i.e.,

53 Id. at 13-14. 54 Id. at 15. 5a Id. at 14, 38-39. ,, Id. at 91. 56d. at 91. 611ld. at 128. 57 Id. at 2. Id.I; at 130. 58 Id. at 88-89, 99. 62 Fuller, supra note 44, at 637-38. FULLER the "" of a problem or doubtful pro- The inherited conception of law that cedure, instead of seeking to articulate the ruled unchallenged, among German legal restraints that must be accepted to insure scholars, for decades taught that "law is 63 orderly, fair and decent . law." This view was helpless when con- Not only has legal thinking been stifled, fronted with lawlessness in statutory form. but fact analysis as well. Is and ought are No matter how unjust the statute, as long as mixed in with facts as well as with law. it was enacted into legal form-as long as As a result of positivist concentration on it was a sovereign command and an ac- the is element in factual analysis, there has complished fact of the power of the state been an emphasis on those facts which can -it had to be treated as law. Thus, posi- 67 be statistically or graphically presented. Yet tivism paved the way for Hitler. Fuller points out, some of the most signifi- Professor Fuller sees examples of the cant facts involve intangible , such same dangerous type of thinking in our as moral facts, lying not in behavior pat- country. There was an article in the Boston terns, but in attitudes and conceptions of Herald apropos of the investigatory rightness.'- methods of a certain senator. The writer Professor Fuller points out that we are said that he had heard all of the debate living in an era of great basic changes in over the senator's methods and had con- our social structure. Positivism, by con- sulted three lawyers-one opposed to the centrating on what the law is, tends to senator, one in favor and one indifferent. freeze the law and the legal framework. The writer asked the three lawyers if the Human relations continue to develop and senator had done anything illegal, and the take on new forms, but the law which ex- answer was, no. Fuller concludes: "That to cludes oughtness fails to respond to the me is an extremely dangerous state of pub- pressing needs of the times." Fuller de- lic opinion where law is simply taken as scribes positivism's most dangerous quality the authority determining what should be as "the inhibitive effect it inevitably has done and should not be done, and its upon the development of a spontaneous or- moral roots are ignored." 6 dering of human relations. ... "66 Professor Fuller worries that many un- Along with its inhibitive effect is the dergraduates today are receiving from the fact that positivism encourages a blind "behavioral " an indoctrination in obedience to law. The law is not followed the notion that the whole social process is because of its reasonableness or its capac- a scramble for "power." He is disturbed ity to effect a happy compromise among about the deep roots this teaching seems conflicting human desires. The law is fol- to strike in many students who glibly re- lowed because it is the law. Hitler's Ger- ject as "naive" any view that seems to con- many was an extreme of this aspect of posi- tradict it.69 tivism. 67 Fuller, supra note 63, at 483-84, 465-66; Fuller, 63Fuller, American Legal Philosophy at Mid- supra note 44, at 659. Century, 6 J. LEGAL ED. 457, 464 (1954). (8 FULLER, ON THE TEACHING OF LAW IN THE ". FULLER, op. cit. supra note 52, at 64-65. LIBERAL ARTS CURRICULUM 86 6 (Berman ed. Ild. at 110-14. 1956). 6 6 Id. at 110. 69 Id. at 42. 11 CATHOLIC LAWYER, SPRING 1965

Keeping duly enacted law distinct from ciety some all-embracing orthodoxy.74 personal opinion and individual moral con- These positivist goals appeal to, and have viction-a basic tenet of positivism-is one enlisted support from, many a non-positiv- of the most worthy goals of civilization. But ist legal thinker. in a review of Buckland's Some Reflec- Besides sympathizing with the purposes tions on Jurispurdence, Professor Fuller and goals of the positivists, Professor Fuller warns of the danger of pretending that this acknowledges that positivism has made its goal has been achieved when it hasn't. It contributions to American legal thinking: is doubly dangerous, he adds, to suppose One seldom encounters a law review article that this goal is, under all circumstances, today [1934] of the type so common ten and in all relationships the most important years ago [1924], in which the writer starts objective man can strive for.7 0 with an inquiry into the "nature" of some legal concept and ends by deducing all sorts Why Positivism Succeeds of important consequences from the sup- posed inner nature of the concept,-without Noting that the harmful inhibitive effects more than a passing reference to the prac- of positivism have been felt in American tical effects of his conclusions, and then legal thinking for nearly a century, 71 Pro- with an air of condescension, as if to com- fessor Fuller indicates that some of the rea- pliment the facts for showing good judge- 7- 5 sons for its success are its worthy aims, its ment in conforming to his theories. real contributions to legal thinking and its Fuller acknowledges that Kelsen did the alliance with the "scientific method." Posi- law a favor in purging it of such imagin- ' 6 tivism's worthy purposes include: the pres- ings as "the sovereign. " Also, there was ervation of order in society by clearly de- Professor Cook's war on "verbal trifling" fining what -is law and by encouraging fidel- or "unconscious "77 and Pro- 7 ity to law; " the placing of law-making not fessor Llewellyn's crusade against concepts in the hands of the but in the which he attacked as the shadowy figments ; and, the facilitation of scientific of our minds, wholly unworthy of the 73 understanding of law and government. simple faith the conceptualist placed in This latter goal, the scientific understand- them.7 s Positivists by their emphasis on the ing of law, includes the separation of law concrete - on the raw datum of law - from morality. The positivist fear of moral- represented a healthy reaction to over- ity in the law stems not only from the pos- in legal thinking. sibility of when law can be Still another important reason for legal branded and repudiated by citizens as im- positivism's century of success has been its moral-but even more important-from alliance with the scientific method. 79 "The the possibility of an over-purposive inter- of modern man is science, and he pretation of law that would fasten on so- 74Fuller, supra note 63, at 463; Fuller, supra note 44, at 671. 70 Fuller, Book Review, 59 HARv. L. REV. 826, 75Fuller, American Legal Realism, 82 U. PA. L. 828 (1946). REV. 429, 443 (1934). 71 FULLER, op. cit. supra note 52, at 61. 76FULLER, op. cit. supra note 52, at 72-73. 72 FULLER, op. cit. supra note 36, at 113; Fuller, 77Id. at 63. supra note 44, at 632. 78 Fuller, supra note 75, at 443. 73 FULLER, op. cit. supra note 36, at 113. 79 FULLER, op. cit. supra note 52, at 117. FULLER prefers whenever possible to couch his real understanding of law, lie in a return thoughts in the language of piety, that is, to the true fundamental basis of law and in words that sound scientific.' 8 order: with science has This holy alliance For I believe that law is not a datum, but given positivism the appearance of modern- an achievement that needs ever to be re- ity and sophistication. Because of the be- newed, and that it cannot be renewed un- lief that scientific thinking alone was in- less we understand the springs from which 8 tellectually respectable, postivism alone its strength derives. 5 '81 had "brave things to say. And Holmes, What these "springs" are is the content who had such great influence on American of Professor Fuller's own natural law view. legal thinking,8 2 was one of this holy alli- Fuller's Natural Law View ance's8 3 most revered prophets. While Professor Fuller sympathizes with Professor Fuller's initial (1940) sweep- many of the things that positivism has ing critique of positivism was delivered as a tried to do, he insists that the goals of series of three lectures, later bound in a positivism will never be achieved, because small volume and published under the title the positivist tries to separate the insepar- of The Law in Quest of Itself."' Within the able: is and ought; fact and value. And in next year over twenty reviews of this 147- attempting the impossible - to eliminate page work had appeared. The reaction oughtness and value from law-posi- showed that Fuller had touched the law tivism is strangling legal development and at a very sensitive spot. endangering the future of society by failing Professor Fuller's critics, most of whom to give needed legal structure to the vast were sympathetic, made three general social changes of the time. By eliminating points: (1) Fuller's critique was too nega- purpose and morality from the law, posi- tive; (2) Fuller's own natural law position tivism leaves untouched the difficult issues was too vague; (3) the term "natural law" of the day where real dangers lie.8 4 Pro- was an unhappy choice of terminology. fessor Fuller believes that the answers to In his subsequent writings, however, Pro- the pressing problems of the day, and a fessor Fuller has met the challenge of his critics by clarifying his natural law views. Professor Fuller's in the natural 80 Fuller, Freedon-A Suggested Analysis, 68 law stems from his encounter with the HARV. L. REV. 1305, 1307 (1955). philosophy of the present 81 FULLER, op. cit. supra note 52, at 104. dominant legal 82 Id. at 117. generation - legal positivism. As we have 83 Professor Fuller has no patience with the scien- seen, although Fuller has many funda- tific method as applied to law. He points out that mental disagreements with legal positivism the proper method for solving a problem depends to a large degree on the kind of problem to be on the practical level, his basic quarrel solved. Just because a method works in the natu- with positivism is at a speculative level- ral sciences, there is no guarantee that it will work also in the social sciences or in the law. See FULLER, op. cit. supra note 52, at 118-19; Fuller, 85 Fuller, supra note 63, at 467. supra note 80, at 1307-09; Fuller, supra note 63, 8f;These three lectures were sponsored by the at 475-76. Julius Rosenthal Foundation For General Law 84 Fuller, supra note 44, at 661-63; Fuller, supra and delivered at the Law School of Northwestern note 63, at 466-67. University at Chicago, April 1940. 11 CATHOLIC LAWYER, SPRING 1965

8 the impossibility of a complete separation tions.1 Just how reason would do this - of is and ought in the law. discover the "just" law or the "right" law When Fuller came upon a legal philos- for promoting effective and satisfactory life ophy that desired to purge the law of in common - Professor Fuller illustrates oughtness and purpose- something that by a simple example. to his mind partook of the very nature of We are asked to imagine a shipwreck. law-he was forced to speak out. And The survivors are cast off on an isolated he spoke out even though at the time corner of the earth. All have a convenient (1940) he was not very clear himself on case of amnesia that has wiped out the mem- what he meant by law as it involved pur- ory of previous social existence. When dis- pose -which he called natural law: putes arise a judge is selected. This judge, Natural law, on the other hand, is the view says Fuller, would soon realize: which denies the possibility of a rigid sepa- That it was his responsibility to see that ration of the is and the ought, and which his decisions were right-right for the tolerates a confusion of them in legal dis- group, right in the light of the group's pur- cussion. There are, of course, many "sys- poses and the things that its members tems" of natural law. Men have drawn sought to achieve through common effort. their criteria of justice and of right law Such a judge would find himself driven in- from many sources: from the nature of to an attempt to discover the natural prin- things, from the nature of man, from the ciples underlying group life, so that his nature of . But what unites the various decisions might conform to them. He schools of natural law, and justifies bring- would properly feel that he, no less than ing them under a common rubric, is the the engineers and carpenters and cooks in fact that in all of them a certain coales- the company, was faced with the task of cence of the is and the ought will be mastering a segment of reality and of dis- 87 found. covering and utilizing its regularities for 8 9 This original insight- the inseparabil- the benefit of the group. ity of is and ought in the law - has always Fuller states that if you take this desert- been at the basis of Professor Fuller's natu- island judge and put him down in a society ral law view. The subsequent development that is already a real and going concern, of Professor Fuller's natural law view has essentially only one new factor has been been an examination of the oughtness in introduced into the judging process - the law -its discovery by reason, its standard force of established has now in nature, and its working out in practice. become one of the realities that the judge must respect in making his decisions. 90 Reason and Natural Law Fuller's faith in human reason's ability Professor Fuller's original plea for natu- to solve the problems of successful group ral law seemed to be nothing more precise living, does not mean that he has unlimited than a plea for the natural creative role of confidence in human reason. He disclaims reason in discovering the law that ought any "code of nature" that can solve all to be - discovering the basic principles of justice underlying the relations of men, and 88 Id. at 3, 104. applying these principles to human rela- 89 FULLER, REASON AND FIAT IN 4-7 (1943). 87 FULLER, op. cit. supra note 52, at 5-6. 90' Id. at 10. FULLER cases. 91 He severely criticizes the "ex- go in discovering the basic principles that tremists" of the natural law school who underlie the successful living together of 9 maintain all law is the product of reason, men -even if this means entering the and that there is no place for arbitrary fiat "forbidden territory of metaphysics and 7 in the law. Sometimes the law must be ethics."9 arbitrary. Justice and Reason Fuller adds we can never have a law without both reason and fiat. The Professor Fuller has put in tentative of fiat in the law is itself a reality that rea- form a general exposition of his own ra- son must take into account." But at the tional quest for the principles of a just 99 same time law can never be stated solely social order. He points out that the basic in terms of fiat, i.e., in terms of power re- task of the lawyer is to find ways by which lations without reference to its rational people can live and work together success- basis (ethics) .93 Indeed without a rational fully. But men cannot live and work to- basis, there is no legitimate authority. gether without some organizing principles Another area where Fuller recognizes that will resolve conflicts and promote co- the limits of reason relates to the pursuit operative action. There are four ways by of "justice" itself: which men may achieve the necessary order. These are: It seems impossible to give an adequate definition of justice; the quest for justice is 1) joint discovery and recognition of in this sense an "irrational" one. Yet this the common need; does not prevent the lawyer from recog- 9 2) the establishment of some rule-mak- clear cases of injustice. 4 nizing ing power; The lawyer who cannot define justice 3) the solution of disputes by adjudica- is compared to the doctor who cannot de- tion; and, fine health, but who can recognize disease. 4) negotiation and agreement among Fuller holds that the lawyer who gives up the interested parties. his quest for justice in the name of a nar- row is no more justified than Corresponding to these four ways of the doctor who gives up healing the sick achieving order are four principles of because he cannot define health with order: Euclidean exactness. Justice is one of those 1) the principle of the common need; imperfectly rationalized elements which we 2) the principle of legitimated power; are intellectually and morally bound to rec- 3) the principle of adjudication; and, ognize in the law.95 4) the principle of .19 But even though reason has its limita- tions, it must be pushed as far as it will

96 FULLER, op. cit. supra note 52, at 109; FULLER, 9' Fuller, supra note 43; Fuller, A Rejoinder to THE PROBLEMS OF JURISPRUDENCE 104 (1949); Professor Nagel, 3 NATURAL L. F. 83, 84 (1958). Fuller, supra note 91. 92 FULLER, op. cit. supra note 89, at 11. 9' Fuller, On Teaching Law, 3 STAN. L. REV. 35, 93 Id. at 29. 47 (1950). 9 4 FULLER, MY 120 (1941). 98 FULLER, op. cit. supra note 96, at 693. 95 Ibid. 99 Id. at 694. 11 CATHOLIC LAWYER, SPRING 1965

The principle of the common need is a need, their actions are dictated by the ne- sine qua non and the most basic of the cessities of the situation and their shared four principles. A just or right ordering of understanding of what those necessities 1 society can be attained only by a discovery demand of each of them. 01 and recognition of the common need. The How is the common need to be achieved other three principles are intelligible and in practice? There must be an intense defensible only as necessary supplements study of the factual situation to which the to the principle of the common need, and pattern of order is to relate. The common as devices or procedures for realizing the need is that pattern of order that is right common need. It would be ideal if the for the situation-that reaches the result common need could be achieved without most consonant with the interests and de- 1 2 resort to adjudication or the use of power, sires of the generality of men. 1 If com- but such a spontaneous corporate spirit missioned to draft a comprehensive statute is not found in human society. Thus, the for the of automobile traffic, the three lesser principles must serve the prin- legislator primarily would seek ciple of the common need in order to ap- a set of rules that would keep people from proach that order by which men can best running into one another, which would, at live and work together. the same time, not slow traffic unduly or The three lesser principles are never create impossible burdens of administra- ends in themselves; they can only be un- tion for traffic officers and traffic courts. In other words, the sources derstood as indirect means of achieving re- of his law would lie in the necessities inherent in the sults that are likely to approximate the problem with which he had to deal. Given common need. Each of the lesser three a situation, and given certain generally principles is a kind of pis aller (last felt and accepted human desires about that resort), a principle that must be resorted situation, his task would be to work out a way of effectuating to only if the common need cannot be those desires within the compulsions of the situation to which otherwise attained-either 1 3 because of an they relate. 1 irreconcilable conflict between individual and social values, or because the common Some have criticized the principle of the need is not properly perceived and under- common need because it is nebulous. Pro- stood. 100 fessor Fuller admits that the common need What is the common need? Professor is not a mathematical calculation or a pat- Fuller equates the common need with the ent medicine guaranteed to cure. Rather of nature. To achieve the common is the application of a principle of just need is to approach a just or right ordering ordering to a particular concrete situation 4 of society. It is a search for the most effec- involving the use of discretion.11 When tive and least disruptive pattern of order the critics argue that no one can point to that will satisfy men's desires and interests, 101 Id. at 694-98, 706, 736. reconciling individual interests with social 102 Fuller, The Place and Uses of Jurisprudence in values. When the members of society act the Law School Curriculum, I J. LEGAL ED. 457, in accordance with the perceived common 499 (1949). 10 Ibid. 'o4 FULLER, op. cit. supra note 96, at 695-97; 100 Id. at 695-737. FULLER, op. cit. supra note 89, at 25-27. FULLER

any particular or of the social But the right and just solution is not order that is unambiguously demanded by purely subjective. There is an objective the common need, Fuller replies: moral goodness. There are good and bad Because the common interest does not tell laws just as there are good and bad pur- us everything, there is no reason to con- poses of law. Arguing on the basis of the clude that it tells us nothing. Those who re- intrinsic appeal of law, Fuller denies that ject the principle of the common need be- aims of the law have as much coher- cause it does not dot all the i's or cross all ence and inner the t's should recall the saying of an an- as good aims. Pro- cient Chinese philosopher, : When fessor Fuller also has an answer for the a cobbler undertakes to make a pair of ethical skeptics. In his review of A shoes without knowing the measure of the of Morals: Towards the Foundations of feet, he does not end by making a bushel Political 0 5 Philosophy, he distinguishes his basket.1 own answer from that of Professor Mnr- timer Adler. : The Standard Adler refutes ethical skepticism by be- At this point we may ask: what keeps ginning with a minimal good. Thus, Adler Professor Fuller's natural law (common argues that if the unhampered pursuit of need) from being something purely rela- pleasure were man's only goal, at least one tive? Fuller has stated that the natural law standard of preference would have validity, is derived from the "compulsions of the namely, that as between two pleasures, the 0 situation."1 What is to prevent his natural greater should be preferred. law from being what men want rather than Professor Fuller begins his refutation of what ought to be? The positivists have crit- ethical skepticism with the maximal bad. icized the natural law for failing to tran- He asks us to imagine a society in which 0 7 scend "personal predilections."' Can Pro- all ordinarily accepted values are reversed fessor Fuller's explanation of natural law -a society in which treason, murder, and escape this criticism? rape are officially encouraged; in which Professor Fuller does not agree with breach of contract is rewarded and its ob- those who hold that the object of law is servance punished; a society where assist- simply to resolve conflicts. 108 He insists on ing one's neighbor is regarded as a heinous a right ordering of society and looks for . No sane person would hesitate to right solutions to problems. 1 9 The right call such a society "bad." It would be bad and just solution makes good law.1"0 by every conceivable standard, whether it be the of man, the maximization of , the fullest realization of human 105 FULLER, op. cit. supra note 96, at 696. 506 Fuller, supra note 102, at 499. capacities."' 107 FULLER, THE LAW IN QUEST OF ITSELF 5 When Professor Fuller seeks a right (1940). solution derived from the "compulsions of 108 Fuller, supra note 91, at 103-04. 109 FULLER, Op. cit. supra note 96, at 695; Fuller, the situation," he sees the most fundamen- supra note 102, at 499; Fuller, supra note 97, at tal element in this human "situation" as 45. 110 Fuller, Positivism and Fidelity to Law-A Re- ply to Professor Hart, 71 HARV. L. REV. 630, 644 -' Fuller, Book Review, 9 U. CH. L. REV. 759, (1958). 760 (1942). 11 CATHOLIC LAWYER, SPRING 1965 the only standard of rightness-human right ordering of men living together must nature. What is right for the "situation" respect human nature just as much as the depends upon what is right for man. individual acts of a man must respect his To say "man" is, necessarily, to say nature. Social arrangements are therefore "purpose" or "oughtness," since man is by not infinitely pliable. There are certain ends nature a self-directing, purpose-achieving of society, certain patterns of order- creature. And what is right for man (the whether agreed upon by a majority or right purpose) must be in conformity with imposed by a dictator- that will fail to man's nature: achieve a successful ordering of society if is not respected. 114 A purpose is, as it were, a segment of a human nature man. The whole man, taken in the round, Professor Fuller points out that business is an enormously complicated set of in- administration, , and political terrelated and interacting purposes. This science do not operate on the premise of system of purposes constitutes his nature, the infinite pliability of ends. A factory and it is to this nature that natural law management does not simply dream up an looks in seeking a standard for passing ethical judgements. That is good which ad- ideal pattern of production. Management vances man's nature; that is bad which is concerned with the natural laws under- 1 12 keeps him from realizing it. lying the production of . Many fac- Natural law philosophy is not confined tors are taken into consideration: individ- and social psychology, the construction in its application to the study of law. Every ual of the human body, etc. Ful- science that has something to say about and operation human activity is involved in natural-law ler notes that economic theory today holds thinking. Fuller illustrates: to the view that the forms through which economic objectives can be achieved are Take, for example, psychoanalysis. This limited in number, and that for certain theory originated in a context of thought that certainly seems remote from the phil- objectives, certain forms must be employed. osophy of natural law. Yet it assumes that Fuller sees as being con- the purpose-forming system called a man cerned with the effects that flow from the may be in need of being "straightened out," adoption of different forms of political and at the same time contains within it- order.115 self the sign posts that will direct the In law and sociology, Professor Fuller straightening-out process. This is the es- sence of the natural law position. If the says we should find the same line of in- psychoanalyst does not do something quiry. But he notes that we do not because roughly equivalent to helping his patient of the influence of empirical science, which realize his "true nature" then his whole 13 treats man not as a self-directing phenom- profession loses intelligible meaning.' enon, but as determined (thus determinable Professor Fuller also holds that there are to any conceivable order or social arrange- natural laws of social order. This is so be- ment). Fuller insists that the sociologist and cause society is made up of men, and the legal philosopher must treat man under both aspects-as determined and as mak-

112Fuller, American Legal Philosophy at Mid- Century, 6 J. LEGAL ED. 457, 472 (1954). 114 Id. at 473-74. 11 Id. at 473. 115 Id. at 474-75. FULLER ing choices. In making choices, man's na- matter be examined candidly, it will be ture must be respected, and therefore there found that there is no one who cannot are limits of the possible forms of social imagine himself, even as a judge, being arrangement. The sociologist and lawyer faced by a law so infamous that he would should discover and utilize the natural laws feel bound to disobey it. For most of us, of social order-natural in the sense that says Fuller, such a situation could only they represent compulsions necessarily con- arise in the of some great dislocation tained in certain ways of organizing men's in the ordinary processes of government, relations with one another.116 such as might be occasioned by a dictator- Professor Fuller points out that the Rus- ship or an occupation by enemy forces.,," sians who tried to impose a pure Marxian In the Hitler regime, for example, the most pattern on society failed when it came to serious deteriorations in legal morality took law. Pashukanis theorized that all law was place precisely in those areas of the law capitalist, finding its rationale in exchange where the purposes of the law were most re- and in the market essential to capitalism. pulsive to human nature. In other words, Fuller says it is interesting to compare the where one would have been most tempted pure Marxian theory of the now dis- to say, " 'This is so evil it cannot be a law,' credited and liquidated Pashukanis with the one could usually have said instead, 'This unblushing "bourgeois" elements that ap- thing is the product of a system so oblivi- 7 pear in the later theories of Vyshinsky.1 ous to the morality of law that it is not en- titled to be called a law.' "120 Problems Raised Thus it is only by way of exception that the natural law would be invoked to over- Even though Professor Fuller insists that rule . As a general rule, the human nature is the standard for measur- natural law demands obedience to positive ing human purposive activity, there are still law-even though the particular positive many questions to be answered: law in question is not "good" law in all 1) Has the natural law the right to sit respects. Indeed, the very obligation of in judgment over positive law, and obeying positive law derives from the na- a disregard of any enactment of the positive tural law, as this obligation cannot come 1 law that violates natural law? from positive law itself.12 In principle, Fuller answers yes. He 2) Is there a "higher law" that sits in holds that when a statute is sufficiently evil judgment over the natural law? it ceases to be law."" Admittedly, when it Professor Fuller makes it clear that he is suggested that this imperious attitude does not accept any doctrine of natural law toward positive law be adopted, there is which asserts that the demands of the ground for real concern. However, if the natural law can be the subject of an author- itative pronouncement, or the notion that transcending the 116 Id. at 475-76. there is a "higher law" 117 Fuller, Pashukania and Vyshinsky: A Study in concerns of this life against which human the Development of Marxian Legal Theory, 47 MICH. L. REV. 1,157, 1165 (1949). 139 Fuller, supra note 112, at 467-68. 120 Fuller, supra note 110, at 661. 118 Fuller, supra note 110, at 655; Fuller, supra note 91, at 91. 121 Fuller, supra note 112, at 467-68. 11 CATHOLIC LAWYER, SPRING 1965 enactments must be measured and declared what about the fear of the positivists that invalid in case of conflict. 12 Fuller declares the purposive interpretation of law will be that these exclusions are "at least as an- pushed too far? cient as , in whom I find no trace The positivists fear not so much that a 2 of the elements I reject."' 3 purposive interpretation of law will lead to An authoritative interpretation of moral anarchy as that it will lead to the opposite law, for example, the November 7, 1949 of anarchy-the imposing on society of speech of Pius XII to the Union of Cath- some all-embracing orthodoxy 126 or "im- olic Italian Lawyers regarding the duty of moral morality." 127 Fuller shares this fear Catholic judges in actions, troubles with the positivists.121 He sees the possible Fuller and raises "grave issues.' '1 24 But Ful- danger of imposing conformity which would ler can see why the Catholics believe in an be a threat to human dignity and freedom. authoritative interpretation of the natural As an example of the kind of development law, even though he doesn't share these in law which he fears, Fuller cites a hypo- same beliefs himself. Indeed, Fuller pays thetical statute which forbids golf on Sun- the Catholics a compliment for their con- day. Conceivably, such a law might be in- tribution to natural law thinking: terpreted as a law imposing compulsory It should be remarked at this point that attendance and recitation of pray- it is chiefly in writings ers. This type of is that the theory of natural law is consid- a threat to human dignity because it com- ered, not simply as a search for those mands something that only has meaning principles that will enable men to live to- when done voluntarily. 129 gether successfully, but as a quest for something that can be called "a higher How is purposive interpretation to be law." This identification of natural law kept within bearable proportions? Fuller with a law that is above human laws seems answers that just to say "common sense" in fact to be demanded by any doctrine is not enough. To give this answer would that asserts the possibility of an authorita- be an evasion, and would amount to say- tive pronouncement of the demands of ing that although we know the answer, we natural law. In those areas affected by such pronouncements as have so far been is- cannot say what it is. Fuller apologizes for sued, the conflict between Roman Catholic his own lack of preciseness, but does offer doctrine and opposing views seems to me a suggestion. Asserting that judges must to be a conflict between two forms of posi- have respect for the concept of legal struc- tivism. Fortunately, over most of the area ture, Fuller points out that a statute or a with which lawyers are concerned, no such rule of has, either explicitly, pronouncements exist. In these areas I think those of us who are not adherents of or by virtue of its relation with other rules, its faith can be grateful to the Catholic something that may be called a structural Church for having kept alive the rationalis- integrity. Structural integrity is what we 12 5 tic tradition in ethics. have in mind when we speak of the "intent 3) Even if a "higher law" be excluded, of the statute"-though we know it is men

122 Fuller, supra note 91, at 84. 326 Fuller, supra note 112, at 463. 123"bid. 127 Fuller, supra note 110, at 635-36. 12 Fuller, supra note 110, at 638. 128 Fuller, supra note 112, at 463. 15Id. at 660. 129 Fuller, supra note 110, at 669-7 1. FULLER who have intentions and not words on we are likely to do the right things, Fuller paper. The judge must limit his creative believes that if the procedures and social role to the confines of the structure of the forms are sound, the results achieved 3 0 law.1 through them will tend to be sound.13 3 For 4) If the jurist confines himself to "legal example, a constitution drafted for a coun- structure," how deeply into human purpose try emerging from violence and disorder can the legal philosophy go? What, if any- should establish a basic procedural frame- thing, can he say about the ultimate pur- work for future governmental action and pose or end of man and of the law? substantive limitations should be kept at a Here we move into the very blueprint of minimum: the legal structure itself. How are we to In so far as possible, substantive aims draw the basic lines of the legal structure? should be achieved procedurally, on the What is the end of law? For what purposes principle that if men are compelled to act in the right way, they will generally do the do its constraints exist? We have seen that 3 right things.1 4 the goal of society is the achievement of peace and order; that the discovery and Why does not the law look for ulti- implementation of the common need pro- mates? One reason we have already seen: mote the successful living together of men. because such a search is really the search But how to achieve the common need? Pro- of metaphysics. The law would be asking fessor Fuller has told us that the answer questions bigger than itself. But there are lies in an understanding of human nature some ultimates that the law must seek. and of the human social order. But how Professor Fuller has given us one such ulti- far, how deep, is the law to penetrate the mate when he asks, what do we mean by a "right" decision. 135 At the same complex, purpose-achieving animal we call time, Ful- man? How much can the law understand ler warns, human terminal ends are ob- man and specify his goals? l"1 scure, and our reasoning powers sometimes Professor Fuller believes that the law fail us: should not try to go too far or ask too I have no intention of attempting to draw much. He holds that the law ought to be here the line at which the effort to define ends should be permitted to content to discover and implement those relax. I should like to suggest, however, that this is a mat- minimum principles which make the law ter in which the cultural forces that sur- 132 possible. Here Professor Fuller makes an round us play a more important part than important distinction. He holds that the law we generally realize. How far we should should not try to discover ultimate pur- pursue ultimates is a question more likely poses as such. Rather the law should con- to be determined by currents of intellect- ual fashion than by deliberate choice. The centrate on the procedures or social forms pressures of our present intellectual climate through which the ultimate, by are toward truncating the inquiry at the 36 activity, are determined. Arguing on the earliest possible point.1 theory that if we do things the right way, 133 Fuller, What the Law Schools Can Contribute to the Making of Lawyers, 1 J. LEGAL ED. 176, 204 (1948). 130 Id. at 670. I1 Fuller, supra note 110, at 643. 131 Fuller, supra note 97, at 35. 135 Fuller, supra note 97, at 45. 132 Fuller, supra note 112, at 463. 1361 d. at 36. 11 CATHOLIC LAWYER, SPRING 1965

Even though Fuller sees the quest for tion of defining ultimates, as defining the ultimates as a difficult quest, a push into conditions under which the ultimates are the unknown and obscure-still he does realized."s Fuller calls this practical na- not hold with the positivists that human tural law approach "Eunomics."'l ends and values cannot be the object of Eunomics reasoned demonstration. As a natural law exponent, Professor Fuller sees the work of Eunomics is derived from the Greek, the natural law involving the selection of and means "good law." Professor Fuller apt means for the realization of a given end chooses this term: by an activity which engages man's reason Because of the confusions invited by the and his capacity for accurate analysis and term "natural law," I believe we need a observation. But Fuller points out that ends new name for the field of study, and I sug- and means are not as simple as they first gest the term "eunomics," which may be defined as "the science, theory or study of seem. In actual concrete situations and in ' good order and workable arrangements. "140 actual decisions, means and ends no longer arrange themselves in tandem fashion, but Professor Fuller goes on to describe the move in circles of interaction. This com- limits of his proposed study: plex of ends and means can be the object Eunomics involves no commitment to "ultimate of reasoned demonstration, but it is impos- ends." To be sure, it may reject sible to assign in advance precise limits to particular ends as presenting what Michael Polanyi calls "unmanageable social tasks." the role of reason. Fuller therefore urges It may, in other words, reveal that there that we push our understanding as far as it are ends which seem in the abstract desir- will take us into the obscure area where able, but for the attainment of which no means and ends interact. He says we must social form can be devised that will not in- seek collectively to discover as much agree- volve an obviously disproportionate cost. ment in this area as the nature of the case But the primary concern of eunomics is 37 with the means aspect of the means-end permits.1 relation, and its contribution to the clari- Because of the complex interaction be- fication of ends will lie in its analysis of the tween ends and means, and because of the available means for achieving particular obscurity involved in searching out the ulti- ends.141 mates, Fuller sets the sights of his natural Professor Fuller stresses the means as- law approach more on means than on ends pect of the means-end relation. He points -but his approach includes both. Thus out that, in concrete decisions, means and Fuller concentrates more on legal processes ends interact, and means have a decided and social forms. He believes that if the influence on ends. He suggests that the legal processes are perfected and thor- failure to recognize the significance of this oughly understood, the goals or ends which interaction was the mistake of the natural result from the intelligent employment of law school of 150 years ago. But Professor these processes will be the best goals for

man and society. It is not so much a ques- 138 Fuller, supra note 97, at 42; Fuller, supra no'e 137, at 73. I311 Fuller, supra note 112, at 473. ''7 Fuller, Human Purpose and Natural Law, 3 140 Id. at 477. NATURAL L. F. 64, 68, 71-73 (1958). 141 Id. at 477-78. FULLER

Fuller is careful to point out that eunomics of ethical judgments. He has done this in is not unmindful of ends: order to get those who reject the natural In attempting to define a branch of to accept eunomics and be party to the study that might be called eunomics, I discussion of the problems that beset soci- stated that an acceptance of this subject as ety in our day. But no matter how emphatic worthy of pursuit implies no commitment the rejection of the natural law and human to "ultimate ends." I was careful not to nature as a standard, Fuller points out that say that eunomics is indifferent to ends. In view of the interaction of means and ends if certain constants and "social regularities" any sharp distinction between a science of persist through a change in suggested social means and an ethics of ends is impossible. forms and procedures, these constants must In leaving the problem of "ultimates" un- reflect some stability in the nature of man resolved I mean merely to acknowledge himself. It is at this point that eunomics that after a careful study of the interaction reaches common ground with the natural of means and ends with respect to a partic- 44 ular problem, men may still ,differ as to law theory.1 what ought to be done and that eunomics What is the relation between the prin- cannot promise to resolve all such dif- ciples of the common need 4 and eu- 14 2 ferences. nomics? Although Professor Fuller does While eunomics stresses the means as- not relate the two, it seems clear that pect of the means-end relation, it must not eunomics exists precisely in order to concentrate too heavily on the means as- achieve the common need-a just ordering pect. To concentrate on means to the ex- of society. The primary focus of eunomics clusion of ends (as is often found in eco- is upon the procedures or subsidiary prin- nomics and sociology) leads to a situation ciples (adjudication, legitimate authority, in which the various social disciplines (law, and contract) through which the common sociology, economics) talk past each other need is attained. and no effective communication takes place The working out of eunomics and the at all. This is another reason why Fuller attainment of the common need in practice insists that eunomics consider ends and requires that men get together, collaborate, 14 means in interaction. 3 Eunomics also discuss, and reflect; that men try to under- helps solve the problems of a pluralistic stand what the common need is, what the society. To immediately begin arguing best social forms and processes are, and about ultimates cuts off discussion. Fuller what effect these means have on social urges a reasoned analysis of the processes goals. or means as a way of airing and under- Just as in the affairs of daily life, we all standing ends and goals. know from personal experience that in Where does human nature fit into euno- moments of crisis, consultation with a mics? Fuller admits that in stating the case friend will often help us to understand per- for eunomics he had tried to keep it dis- sonal problems; so in the larger issues of tinct from the question whether the nature law and ethics, men may, by pooling their of man can furnish a meaningful standard intelligent resources, come to understand

142 Id. at 480. 144 Fuller, supra note 112, at 481. 143 Ibid. 1A5 See page 108 supra. 11 CATHOLIC LAWYER, SPRING 1965

better what their true purposes are. Pro- philosophy of positivism, which excludes fessor Fuller calls this way of solving the purpose from the law and which therefore problems of law and ethics, the collabora- stifles development in the law, we tend to tive articulation of shared purposes.146 In live on today with the successful ideas of other words, what ought to be done is im- social order of the past. 151 We cannot go proved by discussion and reflection. This on for long with a sterile positivism. We collaboration of men and ideas not only need new solutions for the pressing prob- helps toward the choosing of a better lems of our own day. So men must get to- 4 means, but can clarify the end as well.1 1 gether and seek to understand the facts of It is the collaborative articulation of shared our modern industrial society. By the col- purposes that has produced the traditional laborative articulation of shared purposes, case by case development of the English men must discover the ideas and patterns and American common law. This is the of order that spring from the nature of man way the common law has worked itself and society and that provide the only an- pure through the centuries and kept pace swer to the challenge of our times.112 with the changes in the social order. 148 Continued collaboration is our for Conclusion the future. Professor Fuller points out that Professor Fuller does not associate him- our was conceived in the spirit of self with any particular school of natural natural law. We enacted . But Professor H. Gill Reuschlein, Dean guarantees of free speech on the theory of the University of Villanova Law School, that through discussion men find truth, and who has studied some seventy different that truth, when found, should regulate our American writers in jurisprudence, classi- lives and institutions.' 9 Fuller insists social fies Fuller with the "Integrative Jurisprud- change can only take place peacefully in a ence School"-with Benjamin Cardozo, natural law climate-where ideas can com- , Huntington Cairns, Morris pete with each other for men's acceptance R. Cohen, Jerome Hall, and Edmond N. and the successful ordering of society. In Cahn.'" Professor Fuller is pleased with the long run, ideas compete with each this classification."' (Reuschlein classifies other successfully not because they are Mortimer J. Adler, Robert Hutchins, and espoused by a majority or can be forced Harold R. McKinnon as "Neo-Scholas- on society by an effective power in society; tics."),", rather ideas compete successfully only to Neither Scholastic nor Thomist, Profes- the extent of their reasonableness and con- sor Fuller is interested in and critical of sequent acceptance by society.2 ° With the Thomistic legal analysis. He finds that when

146 Fuller, supra note 137, at 73-74. 1.17 Fuller, supra note 110, at 668. 151 Fuller, supra note 137, at 75-76. 1,48 Fuller, supra note 137, at 74; Fuller, A Re- 152 Id. at 74-76; FULLER, op. cit. supra note 107, joinder to Professor Nagel, 3 NATURAL L. F. 83, at 126-27. 96, 98 (1958). 153 REUSCHLEIN, JURISPRUDENCE-ITs AMERICAN 149 FULLER, THE PROBLEMS OF JURISPRUDENCE PROPHETS 404-05 (1951). 724 (1949). 1.4Fuller, Book Review, 12 LA. L. REV. 531, 532 150 FULLER, op. cit. supra note 107, at 110-14, (1952). 121-23. .55REUSCHLEIN, op. cit. supra note 153. FULLER

Thomists set themselves against legal posi- gone sterile. This was because they were tivism, the writings are largely polemic and studied out of relation to reality and its even vituperative in character, usually end- perpetual problems, and thus had come ing up in an attack on Holmes. 156 to be as if meaningless. There are notable exceptions, such as the works of Maritain Professor Fuller is not satisfied with a already mentioned, distinguished work by negative . He wants to know what Rommen and those by Lottin, and the work Thomism is for, not what it is against: by Robert Russell and that by Peter Stan- lis; but the usual textbook treatment of What does the neo-Thomist philosophy natural law had become incredible because say about such questions as the interpre- of missing the existential situation which tation of , the proper role of the natural law doctrine is presumably de- 9 judiciary, or the methods of reconciling signed to meet.' 5 freedom and control in our complex mod- ern society? I find no coherent answer to When we come to value Professor Ful- questions of this sort in the published pro- ler's contribution to natural law thinking, philosophy.1 57 fessions of this it would seem that it is to be found pre- Fuller urges the Thomist to go back to cisely in those areas where he and Father St. Thomas for coherent answers: Ward are most critical of neo-Thomists- Though there are some startling things in in giving the natural law relevance to the St. Thomas on such subjects as monsters existential situation. and angels, I personally have found him The Thomist tends to begin his natural full of useful wisdom on matters of law law approach in the upper reaches of im- and government. But curiously most of mutable principle-principles of good and the neo-Thomist writings in the legal field are almost destitute of reference to St. evil, the sacredness of human life, the in- Thomas himself, who taught, as I read violability of the human person. But the him, that positive law is a human thing in- Thomist has been found wanting when it tended to promote happiness of human comes to the hard reasoning needed to pull 8s ., the principle down to the level of the At least one writer in the Thomist tra- existential. dition concurs with Professor Fuller in crit- We find Professor Fuller, on the other icizing neo-Thomists for failing to give hand, beginning his natural law approach natural law coherence to pressing questions on the concrete level. After a mastery of in our complex modern society. Father Leo the existential, he asks, "What is good for R. Ward, C.S.C., writes: man and good for society as measured by As is clear to all and as some persons have the standard of human nature?" Fuller has noted, Roman Catholics with their Aristo- thought problems through on the lower telian-Thomist background -itself gene- level -principles for interpreting statutes, rally not profoundly studied and renewed the proper role of the judiciary in a de- in this regard -were almost the only per- mocracy, the methods of reconciling free- sons affirming natural law in the United dom and control in our complex society. States, and their statements, quite possibly true statements, were a bit lifeless, and had (Continued on page 137)

-6 Fuller, supra note 154, at 534. 15T Ibid. 1."gWard, The Natural Law Rebound, 21 REV. 158 Id. at 534-35. OF POLITICS 117 (1959).