Excellences as powers: “Sin is a sinking into nothingness”

When we fully appreciate that The Morality of Law is a book about profes­sional ethics rather than a traditional treatise on jurisprudence, we can better understand why Fuller begins the book with a chapter on ethical theory, and why the chapter opens with contrasting definitions of ‘sin’, rather than, say, justice or injustice.

Fuller’s moral theory turns on a distinction between the morality of duty - “the most obvious demands of social living” (ML 9) - and the morality of aspiration - “the morality of the Good Life, of excellence, of the fullest realization of human powers” (ML 5). Several points stand out.

1. There is, first of all, the idea that aspiration has a morality. This is hardly an obvious point. Many of our aspirations fall under the general heading of things that it would be nice to do, but there is nothing especially moral about the category of the “that-would-be-nice.” It would be nice if I could play the piano, speak German, throw softball strikes, and work the exercises in the old mathematics textbooks that have been hibernating on my shelf since college. All these things being among my interests, it is natural to think of them as aspirations. But it would be odd for anyone to take me to task for my failings at piano, German, fast pitch softball, and mathematics, and equally odd for me to feel ashamed about them. In contrast, speaking of moral failings implies, at the minimum, a dimension of blame and shame: moral failings are among those failings that do deserve criticism (from both oneself and others).

2. Kant believed that we lie under a duty to improve ourselves; this and the duty to promote others’ happiness are the principal obligations he elaborates in the “Doctrine of Virtue.”^[184] These two duties roughly correspond with Fuller’s categories, but Fuller rejects the reduction of aspiration to duty (ML 5). Instead, he finds that criticism appropriate to the morality of aspiration involves terms like “failure” and “shortcoming, not... wrong­doing,” as well as assertions that one has not engaged in “conduct such as beseems a human being functioning at his best” (ML 5; see also ML 3). In other words, the morality of aspiration employs the vocabulary of human excellence - what philosophers call ‘aretaic’ concepts - rather than ‘deontic’ concepts, the vocabulary of right or wrong action. In that sense, the morality of aspiration lies very close to contemporary virtue ethics, the view that places aretaic concepts at the heart of moral theory.^[185]

3. When is it appropriate to treat aspirations morally, rather than merely as things it would be nice to do? Fuller never explicitly addresses this question, but the use to which he puts the distinction suggests one important answer: our aspirations have a moral dimension whenever other people's well-being depends on them. Paradigmatically, this will be true in the sphere of work, and specifically in the professions. It is hardly coincidental that aretaic concepts evolved in Greek thought to characterize warriors, whose excel­lences and failures meant the difference between prosperity and disaster for those who relied on them.^[186] In more peaceable societies, we continue to think “aretaically” when we choose a surgeon or a lawyer. We want something more than dutifulness, which after all is merely the requirement for avoiding malpractice liability.

Even when no one else’s well-being depends directly on our work (as is true, for example, in the writing of philosophy), the morality of aspiration applies in a derivative way. It would (merely) be nice if I could play the piano; playing the piano is, for me, a nonmoral aspiration. But, as a writer on philosophical topics, it is a more serious failing that my German is not good enough to read Kant or Hegel. If my philosophizing is slipshod, that is an even more serious failing. Here, the morality of aspiration applies.

In general, it seems, aspiration “goes moral” when our aspirations tie in to serious commitments, when they move from the amateur to the professional. Fuller is in love with the idea of professionalism. He celebrates the virtues of excellence in work; in this respect, his nearest literary counterpart is Primo Levi in The Monkey's Wrench and The Periodic Table.¹ Thus, the third point that emerges from Fuller’s “two moralities” discussion - alongside the ideas that aspiration has a morality, and that its morality is a kind of virtue ethics - is the thought that professional ethics includes the morality of aspiration as one of its central features.

4. Next, consider the quotation with which Fuller begins the first chapter of ML: “Sin is a sinking into nothingness” (ML 3).^{[187] [188] The absence of excel­lence, of virtue, is not badness so much as nonbeing. This is a familiar Platonic and Augustinian idea, and I think it is quite false as a general account of evil. It makes a great deal of sense, however, when applied to aretaic concepts such as “virtue” (a word that for Fuller has the “original sense of power, efficacy, skill, and courage” [ML 15]). If a lawyer is not doing any of the things a good lawyer does, she is not merely practicing law badly. She is not practicing law at all.}

It should be clear why these four major points are important to under­standing Fuller’s jurisprudential argument. I have been claiming that Fuller’s morality of law is a set of excellences that belong to the professional ethics - the role-morality - of lawmakers. This is specifically true of the inner morality of law, Fuller’s eight canons of lawmaking. It is significant, after all, that Fuller introduces the canons with the parable of King Rex, who aimed “to make his name in history as a great lawgiver” (ML 34) - an entirely aretaic ambition. As Fuller tells the story, moreover, Rex’s failures led him after each failure to reflect not on the concept of law, but on his own personal failings - further evidence that Fuller’s focus is on the legislator, not the legislation.^[189] If sin is a sinking into nothingness, then we can understand Fuller’s famous conclusion that Rex “never even succeeded in creating any law at all, good or bad” (ML 34) in a somewhat nonstandard light. It becomes an observation about the role morality of lawgiving rather than an analytical claim about necessary conditions on the very concept of law. Fuller is simply pointing out that whatever King Rex did when he issued directives in a fashion that entirely lacked the characteristic excellences of the lawgiver’s craft, he was not subjecting human conduct to the governance of rules. He was not making law.

These observations derive from a more general point about what I will call purposive concepts - concepts that define objects by the functions they serve in fulfilling purposes. For example, ‘light switch’ is a purposive concept: it defines objects by their function of turning lights on and off.^[190] Fuller’s fundamental insight into purposive concepts is that to identify an object purposively is implicitly to specify a standard of success and failure.

This point carries the important consequence that when we use purposive concepts in descriptions, we are automatically evaluating as well as describing. Take a simple example. Touring a house, I notice an odd-looking bump on the wall. It can be wiggled from side to side, but wiggling it does nothing whatsoever. I’m puzzled. Suddenly I recognize that the bump is a broken light switch. This is one single recognition, not two: to identify the bump as a light switch is simultaneously to identify it as a defective light switch. If I have no idea that a light switch that does not turn the lights on or off is defective, I lack the concept ‘light switch’ altogether.^[191]

The way that Fuller usually phrases this point is to say that the is and the ought cannot be sharply distinguished, or that they merge. This is a mad­deningly elusive way of putting things, and even Fuller recognized that “phrases like ‘a merger of fact and value’ are unsatisfactory” (RN 83). The reason such phrases are unsatisfactory is that they wrongly suggest that to describe something as a steam engine is already to describe it as a good steam engine. This is certainly not what Fuller means to say. Substitute the word ‘law’ for ‘steam engine’ and this sort of misinterpretation is disastrous.

As I interpret them, such phrases instead assert that to recognize something as a steam engine or a light switch is already to recognize what it ought to do, to recognize a built-in standard of success or failure. Success or failure at what? At being a steam engine or a light switch - at being what it is, one might say. Purposive concepts are aspirational concepts - and now we recognize that Fuller’s morality of aspiration is intimately connected with his analysis of purposive concepts, and hence with the is/ought distinction.

This point can be turned around. If an object is so bad at converting steam power to mechanical energy or turning lights on and off that we cannot even recognize it as unsuccessfully doing these things, then we will be unable to recognize the object as a steam engine or light switch at all. The worse things get at fulfilling the purposes of steam engines and light switches, the closer they get to the threshold between being a bad steam engine or light switch and not being a steam engine or light switch at all. Sin is a sinking into nothingness.

One more point about the evaluative dimension of purposive concepts turns out to be crucial to Fuller’s understanding of the morality of law. There is nothing distinctively moral about converting steam power to usable mechanical energy or turning lights on and off - so the “merger of is and ought” in these examples is not quite a merger of fact and value. Matters are different, however, when the purposively defined entity is a person defined through her social or occupational role (“parent,” “physician,” “lawyer,” “lawmaker”), and the means by which she fulfills the role’s purposes create a long-term moral relationship with other people. In such cases, the standard of success implicit in the purposive concept is not just fulfillment of the occupation’s ends narrowly conceived. Instead, the standard of success is fulfillment of these ends in a manner consistent with the moral relationship, for if the role-occupier chronically betrays the moral relationship, the other parties will dissolve it. Under this standard, a relationship that originates only as a means to an end becomes incorporated into the end itself.