The word “law” means the life work of the lawyer
Fuller never disguises his intentions. He says in ML that he will offer only one definition of law: “the enterprise of subjecting human conduct to the governance of rules” (ML 106).
His title, The Morality of Law, then, must be paraphrased thus: “the morality of the enterprise of subjecting human conduct to the governance of rules.” Fuller explicitly calls attention to the fact that his definition classifies law as an activity rather than, say, a set of propositions of law, or a distinctive kind of social norm. The activity of subjecting human conduct to rules, unlike the activity of governing one’s own conduct in accordance with rules, is performed specifically by the rule-designer. “So when I speak of legal morality, I mean just that. I mean that special morality that attaches to the office of law-giver and law-applier.”[178] He labels this a “role morality,” and likens it to the distinctive ethics of lawyers - it is “no mere restatement of the moral principles governing human conduct generally, but... special standards applicable to the discharge of a distinctive social function” (ML 193; see also PSO 201). In the second edition of ML, Fuller complains that “no modern positivist elevates to a central position in his thinking any limitations contained in ‘the law job’ itself” (ML 192). The “law job” is performed by the lawyer, whom he elsewhere calls the “architect of social structure” (PSO 50-52, 253, 264-70). This makes clear that ML is a book about professional ethics - specifically, the professional ethics of those lawyers Fuller refers to as lawgivers and law-appliers.[179]This way of thinking about law was already evident in 1940, when Fuller first discussed natural law and positivism in The Law in Quest of Itself.
After rehearsing the definitions of law offered by several philosophical schools, he considers the obvious concern that debates among them amount to little more than terminological hairsplitting.
Here is how he responds:Yet if in these definitions the word “law” means the life work of the lawyer, it is apparent that something more vital than a verbal dispute hinges on the choice between them. Surely the man who conceives his task as that of reducing the relations of men to a reasoned harmony will be a different kind of lawyer from one who regards his task as that of charting the behavior of certain elderly state officials. (LQI 3-4)
“The word ‘law’ means the life work of the lawyer.” This is not just a rhetorical hook to capture the interest of the law-school audience to which he was lecturing. It is, in paraphrase, the very definition he employs in ML.
In the second sentence of the quotation from LQI, Fuller offers his own characterization of natural law, or rather, of the activity of the natural-law lawyer: “reducing the relations of men to a reasoned harmony.” On its face, this is strikingly different from the most common understanding of natural law in analytic jurisprudence. Analytic philosophers of law tend to regard natural law and positivism as competing theses about the relation between legal and moral propositions. Jules Coleman’s careful definition is a good example: on his account, positivism is the “proposition that there exists at least one conceivable legal system in which the rule of recognition does not specify being a principle of morality among the truth conditions for any proposition of law.”[180] Natural law, then, is the view that in every conceivable legal system, the rule of recognition (the rule by which we recognize valid laws) specifies that being a principle of morality is among the truth conditions for any proposition of law.
Fuller characterizes natural law as a way of conducting a practical activity - “reducing the relations of men to a reasoned harmony” - rather than as a philosophical thesis about the truth conditions of propositions of law. For Fuller, there is not really a thesis associated with natural law at all (RN 84).
Of course, Fuller believes that there is a characteristic morality associated with the “law job” (ML 192). But this marks an important shift in emphasis. Where other writers on all sides of the positivism/natural-law debate understand the phrase “the morality of law” to refer to the morality of laws, for Fuller it refers to the morality of lawmaking.This usage, which is quite consistent in Fuller’s work, is bound to create confusions for those who assume that the phrase “the morality of law” refers not to the moral code of the rule-designer but rather to the moral content of legal rules. In particular, it means that when positivists deny that the law has any necessary moral content, Fuller tends to hear them asserting that no moral code governs lawgiving, a claim that he finds preposterous. Positivists, however, do not really intend to make this claim. Similarly, when Fuller insists that there is a morality to law, his critics assume that he is making a conceptual claim about the necessary connection between legal rules and morality, rather than arguing that lawmaking is a profession with a distinctive professional ethics. But it is the latter that Fuller means.
I said earlier that Fuller classifies lawgivers and law-appliers (legislators and judges) together with lawyers.[181] This will seem puzzling until we realize that Fuller invariably has in mind transactional lawyers, not litigators (who, he observes, are a small minority of the legal profession [PSO 252-53]). As noted above, Fuller views the lawyer as an “architect of social structure”; he regards litigation, the recourse when social structure fails, as a poor - even perverse - focus for understanding what makes lawyers’ work important. It would be like trying to understand an educator’s work by focusing on the process of disciplining classroom troublemakers, or trying to understand marriage by examining divorce.[182]
Three characteristics of the transactional lawyer make him the paradigm jurist in Fuller’s eyes. First, his job is to facilitate interaction between two or more private parties - and facilitating interaction is, for Fuller, the principal aim of law. Second, although the transactional lawyer advises his client, sometimes quite forcefully - he is not merely a mouthpiece or a scrivener - he understands that the client, not the lawyer, is the person who has to do the interacting after the deal is made. This is the fundamental moral fact about the relationship. Third, the transactional lawyer facilitates the interaction by drawing up a framework of rules - a contract, the transactional equivalent of a piece of legislation.[183]