“The citizen’s role as a self-determining agent”

According to Fuller, when a lawmaker systematically violates any of the canons of the internal morality of law - the role-morality of his orher job - the result is not law (ML 39).

However, violating the eight canons need not always be illegitimate in the way that the gunman writ large is illegitimate. Fuller’s second answer is that law must be distinguished from “managerial direction” (ML 207) - a form of governance that is perfectly legitimate in many everyday contexts, but that involves no commitment to the canons of generality or congruence between official action and declared rule.^[192] Managerial direction is a form of govern­ance, but it is not the enterprise of subjecting human conduct to the governance of rules, because managerial directives are not necessarily rules: a manager can deviate from his own general directives whenever circumstances require.

Usually, when Fuller asserts that governance that systematically violates the eight canons is not law, the way to understand the phrase “not law” is as an abbreviation for “not law but tyranny” or “not law but managerial direction.”^[193] (The distinction between tyranny and managerial direction is that in the latter, but not the former, subordinates share their superiors’ aims.) For Fuller, the “identification of law with every conceivable kind of official act” (ML 169) is a conceptual mistake that leads to misunderstandings about the morality of law.^[194]

In particular, Fuller argues that governing the conduct of others through law rather than managerial direction is itself a morally freighted choice.

First, it recognizes that the form of governance will not be moment-by- moment direct supervision. Governance through general rules, unlike man­agerial direction, presumes a measure of respect for the moral powers of the governed. “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults” (ML 162). Elsewhere, Fuller makes the Wittgensteinian point that legal rules cannot explicitly exclude all aberrant interpretations in advance, and concludes that relying on the governed to follow rules presupposes shared “notions of the limits of legal decency and sanity.”^{[196] [197] Governance through rules implies that the governed and the governors belong to the same interpretive community and have roughly equivalent powers of intellect and will.}

Second, governance through general rules, unlike specific directives, pre­supposes the autonomy of the governed. “The law does not tell a man what he should do to accomplish specific ends set by the lawgiver; it furnishes him with baselines against which to organize his life with his fellows... Law provides a framework for the citizen within which to live his own life” (PSO 234).27 Elsewhere, Fuller describes “the view of man implicit in legal morality” (ML 162) as “the citizen’s role as a self-determining agent” (ML 166). To be a lawgiver rather than a command-giver is to treat the citizen as a self-determining agent.

Governing through general rules also implies a certain impersonality in the relationship between governors and governed. Each individual falls under a rule only as a member of a general class, and each action is likewise judged only on the basis of general characteristics.

Third, governance through rules, unlike the gunman writ large, assumes a measure of self-enforcement and self-monitoring on the part of the governed. Governance through rules, which is relatively cumbersome, would be unnecessary if an enforcer were always present. Although a tyrant can dominate a hostile population using a surprisingly small number of police - by making it extremely dangerous to even attempt to organize resistance that could overwhelm the police force - governance through rules presumes at least the passive cooperation of the governed (ML 216).^[198]

Respect for the governed, respect for the autonomy of the governed, and trust in the governed - these are the three overlapping moral values under­lying a governor’s choice of law, rather than managerial direction or tyranny, as the specific form of governance. Fuller’s point, then, seems to be that embarking on the enterprise of subjecting human conduct to the governance of rules creates a certain kind of moral relationship between governor and governed. It is, specifically, a relationship in which a governor abjures the streamlined efficiency of managerial direction in favor of trusting the governed to understand and follow general rules on their own.

Once we see this point, a puzzling passage from The Morality of Law begins to make sense. Many of Fuller’s critics complain that Fuller’s eight principles of legality are merely conditions of efficacy, not moral principles. They accept that Fuller’s King Rex parable demonstrates that governors must follow the eight canons if they want people to obey their laws. These critics argue, however, that this is true whether the laws in question are good or evil, and thus that the canons themselves have nothing to do with morality.

Fuller responds strangely: “I must confess that this line of argument struck me at first as being so bizarre, and even perverse, as not to deserve an answer” (ML 201). But what is so bizarre and perverse about it? Fuller himself insists that his eight canons are principles of efficacy (ML 155-56); indeed, when he introduced the idea of an internal morality of law in his 1958 reply to Hart, he argued for its canons solely on grounds of efficacy (PFL 644-45).

What strikes Fuller as perverse about the accusation that he has confused morality with efficacy is that he regards the choice to govern through law rather than managerial direction as a sacrifice of efficacy for moral ends (ML 202-3). To put the point another way: while Fuller agrees that the principles of legality are instrumentally necessary to make governance by law effective (ML 155-56), he thinks that governing by law rather than managerial direction represents a sacrifice of expediency in the name of principle. The ultimate justification of the principles of legality is therefore moral, not instrumental. Fuller finds the poisoning and blackmail analogies perverse because they assume that an evildoer would for some mysterious reason choose as an instrument of evil a relatively ineffective tool - a tool, moreover, that is relatively ineffective because it displays precisely the kind of moral regard for its victim that an evildoer lacks.^[200]

Consider, by analogy, a professor’s decision to teach a large class through the Socratic method of eliciting the classroom material by questioning stu­dents rather than by straight lecture. (The analogy is mine, not Fuller’s.) The Socratic method is much less efficient than lecturing, and much harder to do well. It sacrifices coverage of material, it frequently frustrates and puzzles students, and it makes classroom progress hostage to the commitment and capabilities of the class.

Socratic teaching is also subject to characteristic abuses that are quite analogous to the abuse of law by tyrants. When a teacher really has a lecture idea in mind, but tries to elicit it through Socratic questioning, she will find herself compelled to deal brusquely with student answers that do not take the discussion where she wants it to go. She will cut corners to guide the dis­cussion, and students will quickly perceive that they are involved in a Socratic shell game of guessing what the teacher has in mind, not in culti­vating their own powers. They will rightly view this as a betrayal of the teacher-student relationship: the teacher here is merely pretending to respect the students’ intellectual autonomy and cultivate their powers. In reality, she is dominating them.^[201]

Does Fuller mean to deny, then, that a lawmaker may have domination on his mind? Not at all.³² His conclusion is substantially more interesting than that. Fuller argues that every exercise of social power requires some reci­procity. Even a blackmailer has to exercise some restraint; otherwise, his victim might elect to reveal his own shameful secret in order to bring the bite to an end. Here, Fuller observes, we can imagine the blackmailer pleading with the victim not to do this, and promising to be less greedy in the future (PSO 195-96).

Fuller describes his theory as an interactional view of law (ML 221), because in his view the choice of law over managerial direction implies a moral relationship between governors and the governed based on mutuality (ML 209, 216).

Government says to the citizen in effect, “These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.” When this bond of reciprocity is finally and completely ruptured by government, nothing is left on which to ground the citizen’s duty to observe the rules. (ML 39-40)

answered my question? Mr. C, tell us the number. Student C: 216. Professor. That is correct. Ms. B, now do you see your mistake?

The professor was widely regarded as an unforgivable intellectual bully.

³² “I have never asserted that there is any logical contradiction in the notion of achieving evil, at least some kinds of evil, through means that fully respect all the demands of legality.” Fuller, A Reply to Professors Cohen and Dworkin, supra note 8, at 664.

³³ See Lon Fuller, Freedom as a Problem of Allocating Choice, 112 Proc. Am. Phil. Soc’y. 105 (1968).

³⁴ Although this is not the place to discuss this point in any detail, Fuller has offered a version of Hegel’s master/slave argument from the Phenomenology of Spirit. There, Hegel describes the evolution of relationships of pure dependency (of the slave on the master, who holds the power of life and death over him) to relationships of reverse dependency (as the master comes to rely on the slave, who takes over the active role, playing Jeeves to the master’s increasingly infantile and incompetent Bertie Wooster) and, later, to relationships of reciprocity. G. W. F. Hegel, The Phenomenology of Spirit 111-19 (A. V. Miller trans., Oxford University Press, 1977).

This is an entirely different moral relationship than that of managerial direction - “the basic relation of order-giver and order-executor” (ML 209) - although even managerial direction creates some reciprocity. Interestingly, Fuller insists that within the managerial context, the canons of clarity, con­sistency, feasibility, constancy through time, and publicity really are prin­ciples of efficacy and nothing more (ML 208-9); the clear implication of this point is that he believes that these canons have a different status in the context of law. There, they are professional virtues of the lawgiver, part and parcel of the mutual respect that Fuller believes is at the heart of the rela­tionship between a lawmaker and those whom she governs.

In what sense are canons like clarity, noncontradictoriness, or constancy through time professional virtues of the lawgiver? Consider a group of people who wish to go into business together, and who retain a lawyer to draw up a partnership agreement that reconciles the divergences that inevitably exist among their interests. The partners are entrusting their joint venture to the lawyer; they are counting on the lawyer’s professional ability to craft an agreement that will provide a workable architecture for their enterprise. If the partnership agreement turns out to be unclear, self-contradictory, or incapable of execution, this is betrayal, not just incoherence or “inefficacy.”^[202] The partners will suffer for the lawyer’s fecklessness. Those who claim that Fuller’s canons merely represent conditions of efficacy appear to overlook this point when they emphasize that a ruler who violates the canons will be unable to accomplish his aim, as though the point of the ruler’s activity is only to accomplish his own aim, rather than the aims of those he rules. It is this, perhaps, that leads Fuller repeatedly to accuse his critics of viewing government “as a one-way projection of authority” (ML 204).

We can be more specific about how the eight canons are virtues of law­making. The two most fundamental - the canons that distinguish the law­giving enterprise from managerial control - are the canons of generality and congruence between rules and their enforcement. The former insists that governors give directions in the form of general rules; the latter demands that they treat those rules as binding on themselves as well as on the governed, in the sense that they will not depart from the rules they have announced.^[203] The commitment to bind the governed only through general rules that also bind the lawmaker establishes the moral relationship of reciprocity between governors and the governed. These two canons are moral commitments that define the enterprise as lawgiving rather than something else.

The remaining six canons fall into two natural groupings: precepts of clear communication and precepts of reasonable expectation. Once the lawmaker has undertaken to govern through general rules binding on both her and the governed, she must announce the rules to the governed, and she must ensure that her rules are ones that the governed may reasonably be expected to follow. Rather obviously, the canons of clarity and publicity are aspects of clear communication, while the canons of constancy and feasibility are aspects of reasonable expectation. The remaining canons - prospectivity and logical consistency - may be regarded as aspects of both clear communica­tion and reasonable expectation. A rule requiring me to do something today is not adequately communicated if it is not issued until tomorrow, nor is it reasonable to expect me to abide by it; likewise, a self-contradictory rule conveys nothing (because anything follows from a contradiction), and cannot be obeyed.

The burden of understanding and complying with rules falls on those whom the rules govern; the reciprocal relationship between governors and the governed places a corresponding burden on the governor to make the rules understood and capable of being complied with. That, ultimately, is why clear communication and reasonableness are moral virtues of the lawmaker.