The Work of Lon Fuller: A Promising Direction for Jurisprudence in the 21st Century

Abstract

This is a review article of Kristen Rundle, Forms Liberate. Reclaiming the Jurisprudence of Lon L Fuller, and Jutta Brunnee & Stephen John Toope, Legitimacy and Legality in International Law. An Interactional Account. It puts both books in perspective, in the context of a modest Fuller revival since 1994. Rundle successfully tries to reclaim Fuller from the distorted picture that arose in the wake of the Hart-Fuller debate. According to Rundle, Fuller’s most important and still highly relevant message is that we should take the form of law seriously. There is a connection between the form of law and how law approaches human agency. Rundle relies extensively on unpublished materials from the Fuller archives. This was a fortunate choice, because in those materials Fuller was often franker and clearer than in the published materials. An interesting application of Fuller’s work is found in the field of international law, which has always been the Achilles heel of legal positivism. Jutta Brunnee and Stephen Toope have elaborated and adapted the Fullerian framework so that it provides an adequate theory of international law. In my view, they have provided a highly convincing account of the emergence of international law. Both books share a certain bias. First, the implicit focus on legislation leads to the neglect of other forms of law, such as contract. Second, Rundle’s focus on the conversations with Hart and others, and Brunnee and Toope’s focus on The Morality of Law, results in the neglect of those publications in which Fuller tried to transcend philosophical debates and present the field of jurisprudence in a relatively impartial way. For example, in Anatomy of the Law, Fuller tries seriously to do justice to the core of truth in both legal positivism and natural law thinking, to made law and to implicit law. I argue that once we accept that law is a gradual and pluralist concept, Fuller’s work may be seen to provide a rich source of inspiration. Perhaps his work is even more relevant and productive for the legal research agenda of the 21st century than it was in the last century.