Introduction

In Plato’s Laws, the Athenian Stranger claims that the gods will smile only on a city where the law is despot over the rulers and the rulers are slaves of the law.^[171] This passage is the origin of the slogan “The rule of law not of men,” an abbreviation of which forms our phrase “the rule of law.” From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture.^[172] Yet the slogan turns on a very dubious metaphor.

What if the rule of law is more demanding than this? What if it turns out to be a particularly elaborate and technically ingenious form of the rule of (let me say) men and women? What if the rule of law establishes a moral rela­tionship between those who govern and those whom they govern? Further­more, what if sustaining this relationship requires moral attitudes and virtues on the part of the governors that are not simply disinterested forbearance, and not simply the moral attitudes and virtues required of everyone?

In that case, the rule of law would turn out to rely on the specifically professional ethics of the lawmakers. One might be tempted to call this “political ethics,” the ethics of rulers. But that is not quite right. Rulers are not identical with lawmakers. Rulers make decisions and devise policies, but decisions and policies are not yet laws. Embodying decisions and policies in the form of laws is a tricky business, technically difficult in exactly the same way that embodying private parties’ intentions in a legal contract is difficult - and the people who carry out each of these lawmaking tasks are (what else?) lawyers.

Finally, what if the professional ethics of lawyer-lawmakers - the moral relationship and attitudes and virtues required by the rule of law - cohere better with laws enhancing human dignity than with laws assaulting it, because enacting laws that assault human dignity tends to undermine the moral relationship that sustains the rule of law? If this were the case, we would be entitled to assert that the rule of law morally constrains the content of laws. This sounds like a natural law theory. We could call it a theory of the “morality of law,” provided we understood that the phrase refers to the morality of lawmakers, and only derivatively to the morality of laws. We would have a theory of natural law as professional ethics.

What I have just described is the unfamiliar argument of a very familiar book, Lon Fuller’s The Morality of Law (hereafter ML), first published in 1964.^[173] (Note that in what follows, my page citations to ML refer to the revised edition, published in 1969.) I call the argument unfamiliar because readers have typically treated ML as a book on general jurisprudence, not on professional ethics, and have neglected its moral theory to focus on what they regard as analytical claims about “the concept of law.” But “the concept of law” is H.L. A. Hart’s title, not Fuller’s.^[174]

As Fuller himself observed in 1969 (ML 188), this misunderstanding is perfectly natural given the state of play in legal theory when he first published ML. For several years, he had been engaged in a debate with Hart, beginning with their famous exchange in the Harvard Law Review.^[175] Hart weighed in next in The Concept of Law, which Fuller criticized in chapter 3 of ML. Hart returned the compliment when he reviewed ML,^[176] and Fuller responded in the new appendix he wrote for the revised edition of ML.

On this assumption, ML gets read approximately as follows. The central argument of ML begins with the famous parable “Eight Ways to Fail to Make Law,” found in chapter 2. The parable does two things. First, it provides an analysis of the rule of law into the eight familiar canons that Fuller calls “principles of legality.” These hold that laws should exhibit (1) generality (i.e., legislating through rules rather than case-by-case directives), (2) publicity, (3) prospectivity, (4) clarity, (5) logical consistency, (6) feasibility - that is, obeyability in practice, (7) constancy through time, and (8) congruence between the rules as announced and their actual administration (ML 39). Second, the parable argues that when these canons are violated, the result is not bad law, but no law at all. The eight canons, then, are necessary conditions on the concept of law. They are also, or so Fuller claims, an “inner morality of law”; because they have to do with the promulgation of laws, not with their content, this inner morality is a “procedural natural law.” There is also a substantive natural law, but Fuller leaves the connection between the proce­dural and substantive branches of natural law obscure. And that’s about it.

How do those who read Fuller this way react to his argument? They generally like his analysis of the rule of law, which ranks alongside com­parable efforts by John Rawls and Joseph Raz.^[177] Many accept the idea that without these canons there can be no law at all; however, most reject the claim that the canons represent principles of morality, inner or otherwise, rather than principles of effectiveness. It is this latter claim that forms the crux of the issue between Fuller and Hart, and the dominant view seems to be that Fuller was wrong.

Undoubtedly, that latter claim is important. But reading Fuller in the manner described above slides over his treatment of substantive natural law, and treats the first chapter of ML, on ethical theory, as if it does not exist. As a result, the argument about professional ethics with which I began simply disappears from the reading entirely. And that is too bad, because in important ways (not every way) Fuller’s argument is right.