“ ‘Discovery’ in the moral realm”

Why does Fuller call his view “natural law”? Fuller energetically rejects the traditional idea that natural law represents “higher law” (RFCL 379, ML 96, RN 84), and indeed he suspects that the appeal to higher law is an unfortunate residue from positivism (PFL 656, 659-60).

Fuller’s pronouncements about natural law do not help much. “I dis­cern... one central aim common to all the schools of natural law, that of discovering those principles of social order which will enable men to attain a satisfactory life in common. It is an acceptance of the possibility of ‘dis­covery' in the moral realm that seems to me to distinguish all the theories of natural law from opposing views” (RN 84). Talk of the possibility of dis­covery in the moral realm makes it sound as if Fuller equates natural-law theory with moral realism. But moral realism, the thesis that moral judgments are objective and referential, is not distinctive to natural law. Positivists, who believe that law can and should be open to moral criticism, can accept the realist thesis without difficulty. Indeed, many of the positivists were utili­tarians, and utilitarians hold that judgments of right and wrong - claims about which actions are utility-maximizing and which are not - are objective and referential.

Elsewhere, Fuller cautions that “for many the term ‘natural law’ still has about it a rich, deep odor of the witches’ cauldron” (RFCL 379).

that there are external criteria, found in the conditions required for successful group living, that furnish some standard against which the rightness of... decisions should be measured... Certainly it would never occur to him [the natural lawyer] to describe the natural law he sought to discover, and felt bound to respect, as a “brooding omnipresence in the skies.” Rather for him it would be a hard and earthy reality that challenged his best intellectual efforts to capture it. The emotional attitude... would not be that of one doing obeisance before an altar, but more like that of a cook trying to find the secret of a flaky pie crust... (RFCL 379)

Once again, there is nothing here that a utilitarian positivist could not enthusiastically embrace. Like Fuller, the utilitarian positivist is an ethical naturalist, who believes that deciding what the law ought to be is hard intellectual work, with external standards of success determined in large part by empirical facts about nature and human nature.

I believe, however, that once we think of Fuller's theory as the profes­sional ethics of lawmaking, we find a coherent answer to the question of what makes it a natural-law theory: it derives moral requirements of the law­maker’s job from features unique to the lawmaking enterprise. Unlike other natural-law theories, however, the morality implicit in Fuller's concept of law is the morality of lawmaking, not of the law made.

Fuller complains that positivists neglect the distinctive role-morality of lawmaking: “If the lawgiver enacts what Hart calls ‘iniquitous’ laws, he sins of course against general morality, but there is no special morality applicable to his job itself” (ML 193). This description is plainly true of utilitarianism, which regards a job as nothing more than a causal path connecting an agent's input to output in the form of utility, the way that a transmission connects an auto’s engine to its wheels. The utilitarian would regard the role morality of a job as nothing more than an application or instantiation of the principle of utility.

This is what Fuller has in mind when he writes about discovery in the moral realm. He is not tendering a general commitment to moral realism, but rather making the more specific claim that institutions, particularly legal institutions, although they are entirely human creations, have moral proper­ties of their own - properties that their designers may never have intended or even thought about, and that are connected only indirectly to general mor­ality. Identifying the morality of institutions, the virtues and vices of parti­cipating in them, is a matter of discovery, not invention - a matter of reason rather than fiat.

I think Fuller is right. We can observe these phenomena in the evolution of games like baseball. Games are in one sense an entirely positivist creation: the rules define the game, and presumably, if the rules permit a practice, engaging in it cannot be cheating. One might argue that the game would be better if the rules forbade certain practices - in positivist terms, that the game as it is isn’t the game as it ought to be. But as long as the rules do not favor one team over the other, abiding by these rules cannot be criticized on the ground that it is not a fair way to play baseball.

Yet in actuality, the rules of baseball have been modified repeatedly over the years because, as the game develops, it becomes clear that some behavior permitted by the rules really is cheating. Fielders intentionally miss infield pop-ups when there are runners on first and second base, in order to get an easy double play; pitchers make the ball curve by spitting on it; base runners block batted balls with their bodies to prevent fielders from making a play; hitters peek at the catcher to see whether he is setting up for an inside or an outside pitch; batters with two strikes against them intentionally swing and miss at wild pitches so they can run safely to first base when the ball flies past the catcher. All of these practices were at one time permitted by the rules, and the first three were banned - not because the game would be better if they were banned (though this is true), but because it became clear that missing infield flies to get the cheap double play, throwing the spitter, and interfering with batted balls were forms of cheating. These were moral discoveries about baseball-playing, of just the kind that Fuller claims to have made about lawmaking. They are part of the natural law of an artificial institution. Interestingly, no rule currently forbids batters from peeking at the catcher to see where he is setting up. However, if the opposing players catch him in the act, the batter will be hit by a pitch his next time up, and no one will complain, because even the batter knows he deserves it. He has violated the natural law of baseball.^[204] The same goes for the batter with two strikes against him who swings at a wild pitch: one writer recalls that when he did this in high school, his own teammates shunned him afterward.^[205]

One might object that these practices are cheating, not because they violate the “natural law of baseball,” but merely because the written rules did not do a good enough job of codifying the game as it was supposed to be played.

One important point should be added about the concept of role-morality that Fuller invokes. As Fuller understands the role-morality of lawyers, it consists of role-derived duties over and above those contained in “general morality” (Fuller’s term for morality in its universal dimension, apart from specific social roles). Thus, in addition to the demands of general morality, the lawgiver has a duty to issue laws that accord with the eight canons, and that respect the self-determining agency of those subject to the law. Fuller seems to assume that these special role-related duties supplement general morality but do not contradict it. Here, at any rate, he does not consider the difficulties that arise when role-morality contradicts general morality - for example, when the adversarial role-morality of neutral partisanship compels lawyers to further morally obnoxious client ends or to utilize lawful but morally repugnant means. Alan Goldman registers the difference between these two categories of role-related obligations by distinguishing duties that are “weakly role differentiated” from those that are differentiated strongly: the former are duties different from, but not inconsistent with, general morality, while the latter are duties that contradict general morality.^[206] A lawyer’s duty to maintain a separate bank account for client funds is weakly role-differentiated; the duty to defend a client’s unjust cause is strongly role- differentiated.

Fuller gives only a slight indication that he recognizes the problems raised by strong role-differentiation. My own view, as argued in chapter 1 (and at greater length in Lawyers and Justice) is that neutral partisanship - and, more generally, strongly differentiated role-obligations in other professions - can be defended only within narrow contexts such as criminal defense.

As the earlier chapters of this book demonstrate, the legitimacy of a strongly differentiated role-morality raises crucial questions of legal ethics. But the legitimacy of weakly differentiated role-morality - professional obligations that supplement rather than contradict general morality - raises no such questions. And Fuller’s view of the natural law of lawmaking focuses only on the latter kind of role-morality. Or so Fuller seems to believe. In the final section of this chapter I shall return to this question, and suggest that he may well have been over-optimistic in his faith that the lawyer’s role­morality inevitably upholds human dignity. As I suggested in the previous chapter, adversarial law practice may well lead lawyers to assault human dignity rather than enhancing it.