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Published online by Cambridge University Press: 13 January 2009
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.” 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. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the “rule of law not of men” is actually a specific form of rule by men (including, nowadays, a few women). These rulers are not slaves to anything. Furthermore, the construction of the slogan—rule of law and not of men—has unfortunate connotations. It suggests that the personal qualities of the human rulers required to secure the rule of law are nothing more than forbearance and disinterestedness—a resolution to stay out of law's way.
1 Plato, , The Laws of Plato, trans. Pangle, Thomas L. (New York: Basic Books, 1980), 715d.Google Scholar
2 Aristotle offers a similar phrase in the Politics, at 1287al–b1. Barnes, Jonathan, ed., The Complete Works of Aristotle (Princeton, NJ: Princeton University Press, 1984), 2: 2042.Google Scholar John Adams introduced the phrase “government of laws, and not of men” into America in his 1774 “Novanglus Paper” (no. 7), reprinted in Adams, Charles Francis, ed., The Works of John Adam (Freeport, NY: Books for Libraries Press, 1969), 4:106.Google Scholar From there it migrated into the Massachusetts constitution of 1780 and eventually into Justice Marshall's opinion in Marbury v. Madison, 5 U.S. 137 (1803).Google ScholarShapiro, Fred R., The Oxford Dictionary of American Legal Quotations (New York: Oxford University Press, 1993), 319.Google Scholar
3 I will use the following abbreviations for works of Fuller to which I cite repeatedly: ML = The Morality of Law, rev. ed. (New Haven, CT: Yale University Press, 1969)Google Scholar; LQI = The Law in Quest of Itself (Evanston, IL: Northwestern University Press, 1940)Google Scholar; PSO = The Principles of Social Order: Selected Essays of Lon L. Fuller, ed. Winston, Kenneth I. (Durham, NC: Duke University Press, 1981)Google Scholar; PFL = “Positivism and Fidelity to Law—A Reply to Professor Hart,” Harvard Law Review 71, no. 4 (02 1958): 630–72Google Scholar; RFCL= “Reason and Fiat in Case Law,” Harvard Law Review 59, no. 3 (02 1946): 376–95Google Scholar; RN = “A Rejoinder to Professor Nagel,” Natural Law Forum 3, no. 1 (1958): 83–104.Google Scholar
The present essay examines, from a different perspective, themes I discuss in “Rediscovering Fuller's Legal Ethics,” published concurrently in Georgetown Journal of Legal Ethics 11, no. 4 (Summer 1998): 801–29Google Scholar; and Witteveen, Willem J. and van der Burg, Wibren, eds., Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam, The Netherlands: University of Amsterdam Press, 1999), 193–225.CrossRefGoogle Scholar
4 Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961).Google Scholar
5 Hart, H. L. A., “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (02 1958): 593–629.CrossRefGoogle Scholar Fuller's reply is PFL, cited in full in note 3 above.
6 Hart, H. L. A., “Book Review—The Morality of Law,” Harvard Law Review 78, no. 6 (04 1965): 1281–96.CrossRefGoogle Scholar
7 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 235–43Google Scholar; Raz, Joseph, “The Rule of Law and Its Virtue,” Law Quarterly Review 93, no. 2 (04 1977): 195–211.Google Scholar
8 Fuller, Lon L., “A Reply to Professors Cohen and Dworkin,” Villanova Law Review 10, no. 4 (Summer 1965): 660.Google Scholar He employs similar phrasing at ML 206.Google Scholar
9 I do not mean that Fuller literally thought all legislators are professional lawyers. He understood, of course, that nonlawyer legislators decide on what should become law before turning it over to lawyers for drafting. He emphasized that the lawmaking job has a technical side, because embodying policies in effective rules is difficult in exactly the way that embodying parties' intentions in a well-wrought contract is difficult. Negotiating these difficulties is precisely the special craft of lawyers. Fuller also argued that the technical aspect of lawmaking imposes substantive constraints on what policies can be embodied in laws, because human activity “always involves a reciprocal adjustment between ends and means.” Fuller, Lon L., “The Philosophy of Codes of Ethics,” Electrical Engineering 74, no. 5 (10 1955): 916.CrossRefGoogle Scholar See Fuller, 's “Means and Ends,” in PSO, 52–58.Google Scholar Not every conceivable end can be turned into workable law. In this sense, all legislation requires the exercise of lawyerly skills, even when the legislator is not a lawyer. The reciprocal adjustment of ends and means likewise implies that a transactional lawyer papering a deal shapes it rather than serving as a mere scrivener: lawyering requires the exercise of legislative skills, even when the lawyer is not a legislator. It follows that the roles of legislators and lawyers are closer than appears at first sight, and this overlap matters to Fuller—it is one of the points of his King Rex parable. Hence my talk of lawyers in the text.
10 Coleman, Jules L., “Negative and Positive Positivism,”; in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, NJ: Rowman and Allenheld, 1983), 31.Google Scholar This is Coleman's definition of “negative” (that is, minimal) positivism.
11 On this point, see also Winston, Kenneth I., “Legislators and Liberty,” Law and Philosophy 13, no. 3 (08 1994): 393–96.CrossRefGoogle Scholar
12 These analogies are mine, not Fuller's. Although transactional lawyers must anticipate possible litigation, “battening down the hatches against possible future litigation” (PSO 253)Google Scholar cannot be their principal job as they draft contracts. The clients are trying to get something done, not merely avoid losses when their projects shipwreck. Fuller more than once quotes Aquinas's dictum that if the highest duty of a captain were to preserve his ship, he would keep it in port forever. Aquinas, , Summa Theologiae, I–II, q. 2, a. 5Google Scholar, quoted at PSO 56Google Scholar, ML 185.Google Scholar
I discuss Fuller's conception of lawyers' work more fully in “Rediscovering Fuller's Legal Ethics,” 810–19.Google Scholar
13 Fuller argues, strikingly, that the terms contained ina contract are just as much law as the rules governing the formation of contracts. PSO 174–75.Google Scholar He is a legal pluralist—someone who believes that there are many legal systems in a society, not just the big legal system administered by the state: on this account, both private actors and the state can make law. Fuller argues explicitly for legal pluralism at ML 123–29.Google Scholar
14 See generally Kant, Immanuel, “The Doctrine of Virtue,” in Kant, The Metaphysics of Morals, trans. Gregor, Mary (Cambridge: Cambridge University Press, 1991).Google Scholar The treatise is divided into two principal sections: “On Duties to Oneself as Such” and “Duties of Virtue to Others.” See also Baron, Marcia, “Kantian Ethics,” in Baron, Marcia, Pettit, Philip, and Slote, Michael, Three Methods of Ethics: A Debate (Maiden, MA: Blackwell, 1997), 13–21.Google Scholar
15 For an alternative approach to Fuller's theory, see van der Burg, Wibren, “The Morality of Aspiration: A Neglected Dimension of Law and Morality,” in Witteveen, and van der Burg, , eds., Rediscovering Fuller, 174–80.Google Scholar Van der Burg focuses on Fuller's claim that the moralities of duty and aspiration lie on a single continuum (ML 9–10)Google Scholar, but I believe that this was a mistake on Fuller's part. The continuum image implies that there will be some point above which everything is aspiration and below which everything is duty. However, ideals such as always doing my duty, never being negligent or unfair for even a single second, or leading a perfectly blameless life belong simultaneously to the morality of duty and the morality of aspiration: to deviate from these ideals violates the morality of aspiration, but by definition each deviation also violates a duty. Hence, the continuum metaphor must be incorrect. For this reason, I emphasize the categorical differences between aspiration and duty.
16 Adkins, A. W. H., Merit and Responsibility: A Study in Greek Values (Oxford: Clarendon Press, 1960), 30–60.Google Scholar
17 Levi, Primo, The Monkey's Wrench, trans. Weaver, William (New York: Penguin, 1987)Google Scholar; Levi, Primo, The Periodic Table, trans. Rosenthal, Raymond (New York: Schocken, 1984).Google Scholar
18 “Der Sünde ist ein Versinken in das Nichts.” Significantly, Fuller says he may have imagined this quotation, an admission that suggests how central it is to his outlook.
19 Consider, for example, these statements found in the parable: “His first move was to subscribe to a course of lessons in generalization” (ML 34)Google Scholar; “Rex undertook an earnest inventory of his personal strengths and weaknesses” (ML 35)Google Scholar; “Continuing his lessons in generalization, Rex worked diligently.….” (ML 35)Google Scholar; “Recognizing for the first time that he needed assistance…” (ML 36)Google Scholar; “By now, however, Rex had lost his patience with his subjects” (ML 36)Google Scholar; “Reflecting on the misadventures of his reign, he concluded.…” (ML 37).Google Scholar
20 Defining objects purposively is a special case of functional definition; it is not the only case, of course, because there are also functional concepts defining objects by the roles they play in nonpurposive processes. For chemists, ‘catalyst’ is a functional concept, but it is not purposive, because chemical reactions are not purposes.
21 Fuller argues that omitting the purpose in descriptions of purposive objects makes them misdescriptions. Fuller, Lon L., “Human Purpose and Natural Law,” Natural Law Forum 3, no. 1 (1958): 68–70.Google Scholar
22 Fuller mistakenly asserts that the issue of nonretroactivity never arises in managerial direction, because no manager would ever order someone today to do something yesterday (ML 209).Google Scholar However, a manager might find it quite expedient to change a policy retroactively. For example, a manager might decide to deduct the costs of tools that workers damage from their pay, and it is easy to imagine circumstances in which the manager might wish to make this policy retroactive. If the terms of employment do not protect workers from policies like this, and if there is no labor union to fight the policy, we can readily imagine that the manager will be successful. Thus, Fuller's point should have been that in a managerial context, there is no necessary moral commitment to nonretroactivity.
23 The one notable exception is the King Rex parable itself. There, the hapless king is neither a manager nor a tyrant—he is merely an incompetent.
24 Here (and in other places) my reading is influenced by Waldron, Jeremy, “Why Law—Efficacy, Freedom, or Fidelity?” Law and Philosophy 13, no. 3 (08 1994): 259–84.CrossRefGoogle Scholar
25 Fuller, , “A Reply to Professors Cohen and Dworkin,” 665.Google Scholar
26 Fuller, Lon L., Anatomy of the Law (New York: Praeger, 1968), 63.Google Scholar
27 Fuller makes the same point in ML: “[L]aw furnishes a baseline for self-directed action, not a detailed set of instructions for accomplishing specific objectives.” ML 210.Google Scholar He also uses the “baseline” terminology to make the converse point, namely, that not only does law presuppose the goal-setting freedom of the governed, but that the goal-setting freedom of the governed requires law. “To live the good life … requires the support of firm base lines for human interaction, something that—in modern society at least—only a sound legal system can supply.” ML 205.Google Scholar He elaborates this latter point in “Freedom—A Suggested Analysis,” Harvard Law Review 68, no. 8 (06 1955): 1305–25.Google Scholar
28 For an illuminating explanation of how even widely hated police states can maintain their dominance using a surprisingly small number of enforcers, see Hardin, Russell, One for All: The Logic of Group Conflict (Princeton, NJ: Princeton University Press, 1995), 29–32.Google Scholar
29 Hart, , “Book Review—The Morality of Law,” 1286Google Scholar; Dworkin, Ronald, “Philosophy, Morality, and Law—Observations Prompted by Professor Fuller's Novel Claim,” University of Pennsylvania Law Review 113, no. 5 (03 1965): 676CrossRefGoogle Scholar; Dworkin, Ronald, “The Elusive Morality of Law,” Villanova Law Review 10, no. 4 (Summer 1965): 634Google Scholar; Cohen, Marshall, “Law, Morality, a n d Purpose,” Villanova Law Review 10, no. 4 (Summer 1965): 651Google Scholar; Schauer, Frederick, “Fuller's Internal Point of View,” Law and Philosophy 13, no. 3 (08 1994): 302–4.CrossRefGoogle Scholar
30 As I read Fuller's argument, it is precisely the argument offered by John Finnis in his exposition of Fuller, : “Adherence to the Rule of Law (especially the eighth requirement, of conformity by officials to pre-announced and stable general rules) is always liable to reduce the efficiency for evil of an evil government, since it systematically restricts the government's freedom of maneuver.” Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 274.Google Scholar Thus, “[a] tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesi, holds in contempt.” Ibid., 273.
31 A famous philosophy professor (no names, please) was a legendary practitioner of the Socratic shell game, and generations of students parodied his teaching with the following dialogue. Professor: I'm thinking of a number between 1 and 500. Mr. A, please tell me the number. Student A: 15? Professor: No. Ms. B? Student B: Um, is it 96? Professor (fiercely): Ms. B, I asked you to name the number between 1 and 500 I am thinking of. Do you really think you've 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,” 664.Google Scholar
33 See Fuller, Lon, “Freedom as a Problem of Allocating Choice,” Proceedings of the American Philosophical Society 112, no. 2 (04 1968): 105–6.Google Scholar
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. Hegel, G. W. F., The Phenomenology of Spirit, trans. Miller, A. V. (Oxford: Oxford University Press, 1977), 111–19.Google Scholar
35 Indeed, all of these infirmities are breach-of-contract defenses at common law: they void at least the afflicted clauses of the instrument. When we notice this, and recall that Fuller was a contracts scholar, it is tempting to argue that Fuller derived the canons by asking himself what conditions are necessary for a valid social contract between governors and the governed. Recall in this connection the passage quoted above, in which government “makes an offer” to citizens: “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.” This sounds a great deal like a social contract. It is noteworthy as well that when Fuller discusses total failure to abide by the canons, he writes, “[i]t results in something that is not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract.” ML 39Google Scholar, emphasis added.
36 A manager may also issue orders in the form of general directives—rules—but remains at liberty to depart from the directives when circumstances require. In the terminology of Rawls's “Two Concepts of Rules,” the manager adopts a “summary conception” of rules, whereas the lawmaker adopts a “practice conception.” Rawls, John, “Two Concepts of Rules,” in Rawls, Collected Papers, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999), 34–39.Google Scholar
37 See Hernandez, Keith and Bryan, Mike, Pure Baseball: Pitch by Pitch for the Advanced Fan (New York: HarperCollins, 1995), 125–27.Google Scholar Interestingly, Hernandez (an all-star first baseman) states both that the peeker deserves to be hit by a pitch and that peeking is neither cheating nor bad sportsmanship. That is because Hernandez believes that nothing, not even practices forbidden by the rules, is unfair if the other team or the umpires have a fair opportunity to catch and punish the players who engage in it. His is a legal realist view of cheating, desert, and self-help, quite distinct from both natural law and positivism.
38 Cohen, Ted, “There Are No Ties at First Base,” Yale Review 79, no. 2 (10, 1990): 321–22.Google Scholar “[My teammates] did not care for what I had done.… They regarded me as someone who did not really grasp the nature of the game. I thought that in knowing the rules I knew the game; they knew the game in some other way.” Ibid., 322. I am grateful to David Brink for calling Cohen's hilarious essay to my attention.
39 Hart, , “Book Review — The Morality of Law,” 1281.Google Scholar
40 See Soper, Philip, “Choosing a Legal Theory on Moral Grounds,” in Coleman, Jules and Paul, Ellen Frankel, eds., Philosophy and Law (Oxford: Basil Blackwell, 1987), 31–48.Google Scholar
41 See Schauer, Frederick, “Positivism Through Thick and Thin,” in Bix, Brian, ed., Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 65–78Google Scholar; Schauer, , “Fuller's Internal Point of View,” 305–12Google Scholar; Schauer, Frederick, “Constitutional Positivism,” Connecticut Law Review 25, no. 3 (Spring 1993): 805–7Google Scholar; Schauer, Frederick, “Positivism as Pariah,” in George, Robert P., ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Oxford University Press, 1996), 31–55Google Scholar; MacCormick, Neil, “A Moralistic Case for A-Moralistic Law,” Valparaiso Law Review 20, no. 1 (Fall 1985): 10–11Google Scholar; West, Robin, “Three Positivisms,” Boston University Law Review 78, no. 3 (06 1998): 791–812Google Scholar; and West, Robin, “Natural Law Ambiguities,” Connecticut Law Review 25, no. 3 (Spring 1993): 831–41.Google Scholar West, it should be noted, expounds the progressive positivist view sympathetically without wholly endorsing it.
42 Schauer, , “Positivism Through Thick and Thin,” 70.Google Scholar
43 Hart, , “Positivism and the Separation of Law and Morals,” 618Google Scholar; Hart, , The Concept of Law, 205–6.Google Scholar
44 Regan, Donald H., “Law's Halo,”Google Scholar in Coleman, and Paul, , eds., Philosophy and Law, 15–30.Google Scholar
45 Schauer, , “Positivism Through Thick and Thin,” 70.Google Scholar
46 Among the progressive positivists, West is clear about this. She regards these two ways of reading the natural law maxim as an ambiguity in natural law theory, whereas I regard them as a positivist misunderstanding of natural law.
47 King, Martin Luther Jr., “Letter from Birmingham County Jail,” reprinted in King, , Why We Can't Wait (New York: Mentor, 1964), 76–95.Google Scholar
48 Schauer, , “Fuller's Internal Point of View,” 305.Google Scholar
49 Ibid., 308.
50 Ibid., 309–10. In “Positivism Through Thick and Thin,” Schauer remarks that he finds it no coincidence that among three of the austerest positivists—himself, Jules Coleman, and David Lyons — “two do not possess law degrees and the third no longer teaches primarily in a law school.” Schauer, , “Positivism Through Thick and Thin,” 70 n. 1.Google Scholar
51 In the arguments that follow, I am drawing freely from (and modifying in part) LQI and RN Interestingly, Ernest Nagel offered an argument very similar to Schauer's thirty-five years earlier. Nagel, Ernest, “On the Fusion of Fact and Value: A Reply to Professor Fuller,” Natural Law Forum 3, no. 1 (1958): 79.Google Scholar
52 Donald Davidson has for many years defended the so-called “principle of charity” in linguistics, a rule of thumb which states that if your translation of a foreigner's utterances implies that the foreigner has crazy beliefs, the fault lies in your translation. Davidson, Donald, Inquiries into Truth and Interpretation (New York: Oxford University Press, 1984), xvii, 196–97.Google Scholar
53 One might object that regimes of slavery or ethnic/gender subordination violate the canon of generality, and hence they are not genuine rule-of-law regimes. However, generality does not mean that identical laws apply to everyone. It means only that when a rule classifies people, it applies equally to everyone in the specified class. For example, a rule forbidding married women from forming binding contracts without their husbands' permission would satisfy the generality requirement if it applied to all married women.
54 That, at any rate, was Oliver Wendell Holmes's conclusion. “[T]he proximate test of good government is that the dominant power has its way,” he wrote, and “legislation … should modify itself in accordance with the will of the de facto supreme power in the community.” The first quotation comes from “Montesquieu,” in Holmes, Oliver Wendell, Collected Legal Papers (New York: Peter Smith, 1952), 258Google Scholar; the second, from Holmes, Oliver Wendell, “The Gas-Stokers' Strike,” Harvard Law Review 44, no. 5 (03 1931): 796.Google Scholar
55 Lord Tennyson, Alfred, “Ulysses,” in Warren, Robert Perm and Erskine, Albert, eds., Six Centuries of Great Poetry (New York: Dell, 1955), pp. 411–12, 11.3–4, 18, 36–38.Google Scholar
56 I have offered an extended treatment of this question in my Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988), chaps. 6 and 7.Google Scholar
57 I argue this in detail in “Rediscovering Fuller's Legal Ethics,” 819–29.Google Scholar
58 See, for example, Michelman, Frank I., “Foreword: Traces of Self-Government,” Harvard Law Review 100, no. 1 (11 1986): 4–77Google Scholar; and Sunstein, Cass R., “Interest Groups in American Public Law,” Stanford Law Review 38, no. 1 (11 1985): 29–87.CrossRefGoogle Scholar
59 Talcott Parsons, however, argued that lawyers play a central role in mediating between public interests (represented by the law) and private interests (those of clients). See Parsons, Talcott, “A Sociologist Looks at the Legal Profession,” in his Essays in Sociological Theory, rev. ed. (New York: Free Press, 1954), 370–85.Google Scholar In some ways, his structural-functionalist argument was anticipated by Tocqueville in his famous chapter on lawyers as the American aristocracy in Democracy in America. de Tocqueville, Alexis, Democracy in America, ed. Meyer, J. P., trans. Lawrence, George (Garden City, NY: Anchor Books, 1969)Google Scholar, chap. 8, 1:263–70. For discussion of the Tocqueville-Parsons tradition, see my “The Noblesse Oblige Tradition in the Practice of Law,” Vanderbilt Law Review 41, no. 4 (05 1988): 717–40.Google Scholar