When I first started reading philosophy of law, I was drawn to the realist or positivist approach. Realists (not like Platonic realists, but rather get-real-ists) take their theoretical cue from actual practice. Oliver Wendell Holmes expressed it in his own definition of law, that law is what enables you to predict how a judge is actually going to rule. The positivists step to a more abstract level and emphasize that there is no necessary connection at all between law and justice or morality. A draconian regime may have a horribly immoral set of laws, but for all that it is still a system of laws. The laws of Nazi Germany, though loathsome, were still laws. This approach seemed to me sound and plausible.
But reading Fuller’s book has made me reconsider. Fuller lays down eight conditions a system of laws has to meet in order to produce a recognizably law-governed society. They include that laws have to be made public, not retroactive, stable, general, enforced, and so on. All this seems about right; Fuller offers a tale of King Rex who tries to run his realm in all sorts of backwards ways that flout these eight conditions, and it seems right to judge that his imagined realm is “law” governed in name only. But then as Fuller explores these conditions, and examines actual and imagined cases, he provides good reasoning for thinking that law does require at least a minimal set of moral conditions.
For example, consider the Nazi case. In many instances, the judges upheld the Nazi regime by perverting the way systems of law are supposed to regulate human conduct. People would be murdered by soldiers, and then after the fact condemned as traitors. Many trials were merely a sham for inevitable convictions, and certainly not all citizens were equal before the law. Once we know more details of the Nazi judicial system, we’d be likely to conclude that the society was “law-governed” in only the very thinnest sense: a better judgment would be that the society put up only a pretense of being law-governed. Fuller’s argument is that in order for a society to really be law-governed, some basic conditions need to be met, and those conditions have a kind implicit morality in them, and in how various legal wrinkles get worked out in actual practice.
In response to a criticism by H. L. A. Hart, who asserts that there is no necessary connection between morality and the rule of law, Fuller asks,
Does Hart mean merely that it is possible, by stretching the imagination, to conceive the case of an evil monarch who pursues the most iniquitous ends but at all times preserves a genuine respect for the principles of legality? … Does Hart mean to assert that history does in fact afford significant examples of regimes that have combined a faithful adherence to the internal morality of law with a brutal indifference to justice and human welfare? If so, one would have been grateful for examples about which some meaningful discussion might turn.
When he puts it that way, it does make the positivists’ insistence look a bit awkward.
Closer to home, Fuller explores cases in the U.S. that violate his conditions. Very often, people end up in situations where the law does not say very clearly what they are (or were) supposed to do, or they end up in the crosshairs of two laws that contradict one another. What happens then? Well, lawyers and judges try to think through the laws and interpret how any rule of law ought to decide in those cases, taking into account similar cases, other possible future cases, what the laws originally were aimed at achieving, and the practical circumstances of the litigants. In any particular case, it is difficult to imagine working through these arguments without at least some minimal moral reflection about fairness, impartiality, impact, and the clarity of any ruling. Fuller calls this a “procedural” rather than “substantive” natural law, but it is moral enough to give the lie to any strict positivism.
That’s not to say, of course, that there could not be a law-governed society that practices legalized slavery or oppresses women or administers the death penalty. Fuller’s natural law does not reach that far. But it reaches far enough to conclude that being law-governed means engaging in a process in which a system of laws might well lead to verdicts that go against what judges and their superior would otherwise prefer, given their own prejudices and agendas. And it also argues that the ongoing endeavor of law requires that we listen to one another and take one another’s causes into practical consideration:
Each [side in a dispute] is orienting his words, signs, and actions by what he thinks the other seeks and in part also by what the other thinks he seeks. Here there emerges from the parties’ interactions no hard factual datum that can be set off against the purposes that brought it into existence. The quality and terms of the parties’ emergent relationship – its “laws” if you will – constitute an important social reality, but it is a reality brought into being and kept alive by purposive effort and by the way each of the parties interprets the purposes of the other.
There has been a lot of discussion recently about the topic – most of it myopic, in my estimation – but Philip Kitcher, in an essay in the New Republic, contributes a perspective that is informed, clear, and judicious. As usual. Excerpt, from the conclusion:
We are finite beings, and so our investigations have to be selective, and the broadest frameworks of today’s science reflect the selections of the past. What we discover depends on the questions taken to be significant, and the selection of those questions, as well as the decision of which factors to set aside in seeking answers to them, presupposes judgments about what is valuable. Those are not only, or mainly, scientific judgments. In their turn, new discoveries modify the landscape in which further investigations will take place, and because what we learn affects how evidence is assessed, discovery shapes the evolution of our standards of evidence. Judgments of value thus pervade the environment in which scientific work is done. If they are made, as they should be, in light of the broadest and deepest reflections on human life and its possibilities, then good science depends on contributions from the humanities and the arts. Perhaps there is even a place for philosophy.