“A brutal indifference to justice and human welfare”
And yet there does seem to be something amiss in Fuller’s theory, something too quick and easy in the way it concludes that an immoral lawmaker is not just letting down his subjects, but is also betraying the very idea of law.
As we have seen, Fuller argues that the enterprise of subjecting human conduct to the governance of rules presupposes a moral relationship between governors and the governed - a moral relationship aimed at promoting the selfdetermining agency of the governed. From this relationship, it follows that the eight canons are moral excellences, not just rules of efficacy. All this seems like an awful lot to derive from the bare concept of people governing other people through rules. Fuller has pulled a very large rabbit out of a very small hat. His theory seems too good to be true.I wish to suggest that it is too good to be true. Like Schauer, I trace Fuller’s over-optimism about the law to his insider perspective. This is not, however, because of the generalized worry about insiders that I have just discussed. The problem is not with insider jurisprudence as such, but with the fact that Fuller’s insiders are lawyers. Quite simply, the lawyer’s role is more problematic than Fuller admits.
At one point, Fuller throws out a challenge to his doubters, rhetorically asking whether “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” (ML 154). He plainly believes that the answer is no, but I begin my argument by suggesting that the answer is yes in almost every regime that has ever existed. This is because almost every regime that has ever existed has legislated expressly to deny the self-determining agency of women, and has thereby denied what Fuller claims is the substantive morality imminent in law.
Until the most recent times in a bare handful of nations, women have enjoyed few or no political rights, have been classified as property or quasi-property, and have been subjected by law to the tutelage of their husbands and fathers. One might offer analogous examples drawn from the histories of slavery or legally explicit ethnic subjugation. (Would Fuller deny that the American law of slavery adhered rather well to the internal morality of law? On what grounds?) However, I think that the (for all practical purposes) universal legal subjugation of women offers the most striking example of what goes wrong in Fuller’s theory.[222]The important point, it seems to me, is this. Fuller maintains that any legal regime that abides by the eight canons will respect the self-determining agency of those to whom its rules are addressed. So far as it goes, his argument is profound and correct. But it does not go as far as Fuller hoped, because he overlooks an important qualification: those whose self-determining agency law aims to further need not include the entire population subject to the law, because the rules may really be addressed only to a numerical or power majority (to borrow King’s words once again). That is, it may well be that the legal edifice of patriarchy aims to enhance the self-determining agency of men. But it does so at the expense of women, who are subject to the tyranny (or, at best, the managerial direction) of their husbands and fathers. Justice for the guys coexists with injustice for women.
The crucial condition under which this form of mixed justice and injustice can exist is that the dominant group is able to exert direct control over the subordinate group by virtue of living side by side with them. To take a straightforward illustration, legal regulation of slaveholders, establishing a framework of general rules that advances and respects their self-determining agency, turns out to be wholly consistent with tyrannical or managerial regulation of slaves.
In just the same way, patriarchal legal orders enhance the self-determining agency of men in part by enhancing their license to exert unfettered authority over women. The problem, it seems, is that even though both men and women fall under the law’s jurisdiction, the law excludes women from the community whose freedom it aims to enhance.I can find no evidence that Fuller ever considered the catastrophic asymmetry between whom the law binds and whom the law helps, or the implications for his jurisprudence of the law’s exclusion of women from the community of freedom. He was certainly aware, though, of the “basic question”: “Who is embraced in the moral community?” - that is, “Who shall count as a member of the in-group?” (ML 181). He was, after all, writing during the heyday of the civil rights movement.
Within a given political society there are men commonly described as being of different races. These men have lived together for many years... They have together produced a common culture. Is there no moral principle that can imperatively condemn drawing a line between them, and denying to one group access to the essentials on which a satisfactory and dignified life can be built? (ML 183)
Fuller recognizes that he needs an affirmative answer to this question, but the one he provides is unsatisfying, except perhaps as rhetoric. He cites the parable of the Good Samaritan and a famous Talmudic aphorism to argue “that we should aspire to enlarge that community [the moral community] at every opportunity” (ML 183), because the morality of aspiration “cannot refuse the human quality to human beings without repudiating itself” (ML 183). Confusingly, Fuller asserts that these are propositions from the morality of aspiration that are fully as imperative as duties. So far as I can tell, Fuller provides no reason for supposing that the scriptures he cites truly set out the morality of aspiration, or for thinking that cosmopolitan aspirations have the force of duties, or for assuming that cosmopolitanism belongs to the morality of law as Fuller understands it - namely, the professional ethics of lawgivers and law-appliers.
Fuller seems to have forgotten his own distinction between criticizing bad laws on general moral grounds, which he disfavors, and criticizing them as violations of the distinctive role-morality of the legislator, a practice of which he approves.He cannot, for example, really mean that any lawmaker who enacts sexist or racist legislation has violated the role-morality of the legislator’s craft. The legislative role-morality surely does not contain an equal protection clause built in a priori. If anything, the argument seems more plausible going the other way: perhaps legislators have a role-obligation to enact laws that they find morally objectionable if those laws truly codify the dominant morality of the society.[223] Tennyson’s ultracosmopolitan Ulysses (“I am a part of all that I have met”), having returned from his wanderings to govern the cultural backwater of Ithaca, understands that only “slow prudence” will be able “to make mild a rugged people, and thro’ soft degrees subdue them to the useful and the good.” In the meantime, “I mete and dole unequal laws unto a savage race.”[224] Unequal laws, apparently, are all that a savage race can handle, and a conscientious lawmaker will not jump the gun. This argument may be wrong: we have seen that there is a genuine question about whether a professional’s role-morality can override the demands of universal mor- ality.[225] But even if the answer is no, the reason is because of the priority of the universal over the particular, not because the demands of universal morality are built into the structure of role-morality a priori, for legislators or anyone else.
Fuller is indulging in wishful thinking. He wishes that lawmaking were inherently cosmopolitan, because his argument requires a cosmopolitan solution to the problem of defining the moral community. He confronts a familiar problem in legal ethics. His lawmakers, we have seen, are like transactional lawyers, aiming to facilitate their clients’ interactions with a well-crafted structure of rules.
But transactional lawyers have clients, and there are limits to how far lawyers can take into account the interests of nonclients. Even when transactions require reciprocity between clients and other parties, each lawyer’s primary loyalty runs to her own client - and none of the lawyers may pay attention to the interests of parties who are not part of the transaction at all, regardless of whether the transaction affects those parties’ vital interests. The Fullerian legislator is like a transactional lawyer whose “client” is the numerical or power majority in the community; and, as in the case of the lawyer, there is a tension between legislating on behalf of the client’s interest and legislating on behalf of everyone’s interest.In his many writings on the adversarial ethics of the legal profession, Fuller made it clear that he was aware of the problem that advancing client interests may not be in the public interest; but he never found a successful solution to it.[226] That is because no successful solution can be found. Proving that the pursuit of special interests is identical to the pursuit of general interests is like squaring the circle. It is a problem that political philosophers have always wrestled with: Kant argued that the interests of male propertyholders are suitably universal, Hegel entered the same claim for bureaucrats, Marx for the proletariat, Gyorgy Lukacs for the Communist Party, and innumerable patriarchs for the menfolk. History has been unusually generous in providing counter-examples to their theories. Civic republican constitutional theorists have in recent years made the claim of universality on behalf of judges.[227] But Fuller is perhaps the only philosopher to do so on behalf of lawyers.[228] That is one of his great strengths; no one, it seems to me, has thought more deeply or perceptively about the services of lawyers in the liberalization of societies and the enhancement of human dignity. But (let’s face it) lawyers aren’t that good.