Lon L. Fuller's Lessons for Legislators

Abstract

In this paper, I discuss the relevance of Lon Fuller’s internal morality of law for legislation in the modern regulatory state. It may seem as if legislation and regulation have become mere instruments for politicians and nothing more. However, law also has an inner morality, a built-in tendency of its own, which makes it resistant to pure instrumentalism. This internal morality of law consists of eight principles or demands that legislators should meet in order to produce law at all. I discuss each of them shortly and their implications, and illustrate how the realization of these demands is often frustrated in modern states. These eight principles have often been regarded as a mere checklist for effective legislation. However, Fuller has a deeper insight to offer: the principles also have a moral dimension. The internal morality provides some minimal moral quality and some resistance against abuse by the powerful. It presupposes and reinforces a relation of reciprocity between lawgiver and subjects. And in order to function properly, we must guarantee open channels of communication between citizens and between citizens and the public authorities. This is Fuller’s deeper insight: if we do not respect law’s internal morality, legality weakens, law weakens, respect for the law weakens, and the bond of reciprocity between citizens and lawgiver weakens. In a more positive tone, law always holds the promise of a higher quality of law, of resistance to abuse by the lawgiver, of at least a minimal reciprocity and openness. To realize this promise and to protect its achievement, the legal professions have a heavy responsibility.