Lon Fuller

1.

TOPIC FOR TODAY: Lon Fuller (may not finish this all today)
• Introduction to Lon Fuller
• Fuller’s “Eight Conditions of Law”
• Short writing

2.

Introduction to Lon Fuller
• Lon Luvois Fuller (1902-1978)
• Born in the US.
• Professor at Harvard Law School
• Offered a different view of law
from Hart
• Best known for his book, The
Morality of Law (originally
published, 1964)

3.

Introduction to Lon Fuller
If you want to take a look at Fuller’s book,
it is available as a pdf at:
http://mguntur.id/files/ebook/ebook_1605607075_e2bf730c3254db5d
74fc.pdf

4.

Introduction to Lon Fuller
As we saw, Hart looked at law
mainly from the point of view of its form and structure.
He asked: what is the form of law?
He answered: …

5.

Introduction to Lon Fuller
As we saw, Hart looked at law
mainly from the point of view of its form and structure.
He asked: what is the form of law?
He answered: rules.

6.

Introduction to Lon Fuller
As we saw, Hart looked at law
mainly from the point of view of its form and structure.
He asked:
what is the structure of law (or of a legal system)?
He answered:…

7.

Introduction to Lon Fuller
As we saw, Hart looked at law
mainly from the point of view of its form and structure.
He asked:
what is the structure of law (or of a legal system)?
He answered:
a combination of primary and secondary rules.

8.

Introduction to Lon Fuller
Fuller looked at law from a different perspective.
He asked mainly about the purpose of law,
and the conditions necessary to achieve the purpose of law.

9.

Introduction to Lon Fuller
First, we’ll discuss the purpose of law, according to Fuller.
Then we’ll discuss the conditions
Fuller says law has to satisfy
to achieve its purpose.

10.

Introduction to Lon Fuller
Fuller asked: what is the purpose of law?

11.

Introduction to Lon Fuller
Notice where he starts from.
His question, what is the purpose of law,
is another way of asking:
Why do we have law?
What is it supposed to do for us?

12.

Introduction to Lon Fuller
To the question,
what is the purpose of law,
he answers…
(this was in the notes and exercise I uploaded)

13.

Introduction to Lon Fuller
“To subject human conduct
to the governance of rules.”
In other words, “To bring human conduct
under the управление [?] of rules.”

14.

Introduction to Lon Fuller
In other words:
the purpose of law is:
to regulate people’s behavior.
That is,
to organize people’s behavior
so that people behave according to rules.

15.

Introduction to Lon Fuller
Fuller also says:
Law,
as an activity,
is ”the enterprise [ = предприятие?]
of subjecting human conduct
to the governance of rules.”

16.

Introduction to Lon Fuller
Fuller asked:
What conditions
does law have to satisfy to achieve its purpose?
He listed eight conditions.

17.

Introduction to Lon Fuller
Fuller called these eight conditions by different names.
The name I like the best is:
“legality” (законность).

18.

Introduction to Lon Fuller
According to Fuller,
for law to achieve its purpose:
It is not necessary that all eight conditions be completely satisfied.
But none of the eight can completely fail to be satisfied.

19.

Now let’s go to the exercise I uploaded:
Lon Fuller exercise: Question 1 of 8. We’ll go through all 8 questions.
1. Imagine that I say, in the classroom:
“Everyone has to do the assignment
before the next lesson,
unless I tell you at the next lesson
that you did not have to do it.”

20.

Lon Fuller exercise: Question 1
What’s the problem?...

21.

Lon Fuller exercise: Question 1
You haven’t been given an assignment
(or a “rule” to follow)
at all.
Why not?...

22.

Lon Fuller exercise: Question 1
If a statement like this were enacted as a law—
“You have to pay your taxes unless the President says you don’t.”
What would be the problem?...

23.

Lon Fuller exercise: Question 1
People would not know
whether they had to pay their taxes or not.
They would not know what to do,
to not “get into trouble with the law.”

24.

Lon Fuller exercise: Question 1
The point of the example is:
Fuller’s first condition of law is:
you have to have rules.

25.

Lon Fuller exercise: Question 1
Notice the difference from Hart.
Hart started from social facts-–social rules.
That was the basis for his concept of law.

26.

Lon Fuller exercise: Question 1
Fuller starts directly from law.
He sees it as something special.
Not just one kind of social rule.
Instead, he starts from the purpose of law,
from what law is supposed to do for us.

27.

Lon Fuller exercise: Question 1
Fuller says,
to have law, you have to have rules.
But, notice:
He’s not saying anything about the content of the rules,
About whether the rules are good or bad.
About whether the rules respect human rights.

28.

Lon Fuller exercise: Question 1
The point is obvious, but--
to subject people’s conduct
to the governance of rules,
you have to have rules.

29.

Lon Fuller exercise: Question 1
Another example
shows the difference
between
having some rule
--even a strange one—
and no rule at all…

30.

Lon Fuller exercise: Question 1
What if I had said:
Everyone had to do the assignment,
unless you were born in the month of March?
This would be a strange rule.

31.

Lon Fuller exercise: Question 1
But does it qualify as a rule,
that tells you
what you have to do
to obey?

32.

Lon Fuller exercise: Question 1
But does it qualify as a rule,
that tells you
what you have to do
to obey?
Yes.

33.

Lon Fuller exercise: Question 1
Now go back to the original example:
“Everyone has to do the assignment
before the next lesson,
unless I tell you at the next lesson
that you did not have to do it.”
Does this tell you whether you have to do the assignment?

34.

Lon Fuller exercise: Question 1
No.
Does everyone see why this “assignment”
is no assignment at all?

35.

Lon Fuller exercise: Question 1
Another example:
Our class meets at definite times.
You know when you have to be here.

36.

Lon Fuller exercise: Question 1
But what if there were no definite class times.
Imagine you just got Telegram messages
at different times on different days:
“Lesson now.”
You couldn’t plan your day.

37.

Lon Fuller exercise: Question 1
Imagine society being like that.
It’s hard to imagine that.

38.

Lon Fuller exercise: Question 1
For Fuller,
the reason we have law
is so society is not like that.

39.

Lon Fuller exercise: Question 1
The reason we have law
is to organize people’s behavior
in various ways.

40.

Lon Fuller exercise: Question 1
That’s why, for Fuller,
having law,
means
having rules.
Question 2…

41.

Lon Fuller exercise: Question 2
2. Imagine that on 28 March I write an assignment for you to do.
I write in the assignment that it will be due on 4 April.
But I do not send or give the assignment to you.
Instead, I put the assignment
in the drawer of my desk in my office.

42.

Lon Fuller exercise: Question 2
Then imagine that,
at the beginning of the lesson on 4 April, I say:
“Have you all completed the assignment that is due today?”...

43.

Lon Fuller exercise: Question 2
…”Anyone who has not completed that assignment
will get a grade of zero.”

44.

Lon Fuller exercise: Question 2
And you ask: “What assignment?!”

45.

Lon Fuller exercise: Question 2
What’s the problem?...

46.

Lon Fuller exercise: Question 2
The problem is:
You can’t expect people
to act according to a rule,
if you do not tell them what the rule says.
What’s missing is: …

47.

Lon Fuller exercise: Question 2
The problem is:
You can’t expect people
to act according to a rule,
if you do not tell them what the rule says.
What’s missing is: …
“promulgation” (the publicity of law)

48.

Lon Fuller exercise: Question 2
Keep thinking about the purpose of law, according to Fuller:
to govern human conduct.

49.

Lon Fuller exercise: Question 2
For rules to govern human conduct,
people have to know
—or at least be able to find out—
what the rules--the laws--say.

50.

Lon Fuller exercise: Question 2
This is the requirement that laws be promulgated—
that they be public.

51.

Lon Fuller exercise: Question 2
Fuller tells us that the Roman emperor Caligula
[12-41 of the Common Era]
is said to have posted the laws in public,

52.

Lon Fuller exercise: Question 2
but on pillars so high,
and in letters so small,
that the people could not read them.
(Pillars not of Caligula but of
the US Supreme Court.
The point: the top of the pillars
is NOT where US laws are written…

53.

Lon Fuller exercise: Question 2
But what IS written
at the top of
the US Supreme Court…

54.

Lon Fuller exercise: Question 2
What IS written at the top of
the US Supreme Court is…

55.

Lon Fuller exercise: Question 2
Remember
what we discussed,
—and I hope you have read
or will read
in the slides
for the lesson—
about Zeno of Citium
and the idea of equality
in natural law.

56.

Lon Fuller exercise: Question 2. Back to Caligula…
Although the Roman emperor Caligula
made what he called laws,
and even posted them outside,
the people could not read what the laws said.
Punishing the people
for violating what was written on the pillars
was unfair.

57.

Lon Fuller exercise: Question 2
Now, closer to home…
example of the publicity of law in Uzbekistan?
(Hint: in the Constitution)…

58.

Constitution, Article 84
Article 84.
The law shall come into effect when it is
adopted by the Legislative Chamber, approved by the Senate,
signed by the President of the Republic of Uzbekistan and
issued in the official publications specified by law procedure.

59.

Constitution, Article 84
Статья 84.
Закон приобретает юридическую силу, когда он принимается
Законодательной
палатой,
одобряется
Сенатом,
подписывается Президентом Республики Узбекистан и
публикуется в официальных изданиях в установленном
законом порядке.

60.

Constitution, Article 84
Here we see Fuller’s condition of publicity
included in positive law.

61.

Lon Fuller exercise: Question 2
That a rule be public
may be part of
what it means to be a rule.

62.

Lon Fuller exercise: Question 2
You can’t be governed by a “rule”
that you don’t know about.
Could you play chess
if you didn’t know the rules?

63.

Lon Fuller exercise: Question 2
If you don’t tell people
what a “rule” says,
even if you call it a rule,
it is not functioning as
--it is not doing the job of-a rule.

64.

Lon Fuller exercise: Question 2
Next question:
Why is publicity
--that laws be publicimportant?

65.

Why is publicity of law important?
The first reason, we just heard:
Publicity is necessary
for people to know what is expected of them.

66.

Lon Fuller exercise: Question 2
Another reason why it’s important for laws to be public:
Suppose there is a social problem.
Let’s say, air pollution.
Maybe the existing laws are not good enough.
Maybe new laws are needed.

67.

Lon Fuller exercise: Question 2
An important step in the law-making process
is to find out what the laws are now.
So you can see what, in the law, is not good enough.
And think about what changes to make, and why.

68.

Lon Fuller exercise: Question 2
Another reason why it’s important for laws to be public:
Suppose you suspect a public official
of disregarding the law—
that is, not enforcing it,
or going beyond the official’s authority.

69.

Lon Fuller exercise: Question 2
Publicity of law is required
to hold government officials accountable (to the law).

70.

Lon Fuller exercise: Question 2
To say to officials:
“You’re not following the law,”
you have to know the rules
they’re supposed to be following.

71.

Publicity of law: knowing the law. A true story.
Almost 20 years ago,
my wife and I were traveling away from home.
Our two younger sons (we have three in all),
Jonah and Noam, stayed at home.
They were ages 19 and 14.
(Jonah was the one who had asked, around 14 years before that,
“How would you feel if you were the turtle?”)

72.

Publicity of law: knowing the law. A true story.
Late one night —very late—they got hungry.
They decided to drive to the “Store 24”
(so-called because it is open 24 hours a day).

73.

Publicity of law: knowing the law. A true story.
When they drove into the parking lot,
they saw a police car there.
As Jonah parked the car, a policeman
got out of his car
and walked towards their car.
The policeman was carrying a flashlight.
Jonah rolled down the window…

74.

A true story continued…
The policeman asked,
“Do your parents know you are
here so late?”
Jonah replied,
”They are in California.”
The policeman shined his flashlight
around the back seat of the car…

75.

A true story continued…
Jonah guessed
that the policeman was looking for something suspicious,
maybe drugs (there were no drugs).

76.

A true story continued…
For a few moments, Jonah didn’t say anything.
Then he asked, “Officer, are we free to go?”
The policeman said they were.

77.

Publicity of law: “KNOW YOUR RIGHTS”
A US NGO, the American Civil Liberties Union,
publishes a booklet called “Know Your Rights”.
It tells you
“what rights you have
when you are stopped, questioned, arrested, or searched
by law enforcement officers.”

78.

Publicity of law: “KNOW YOUR RIGHTS”
Jonah had been to university, and he had read “Know Your Rights.”
He knew not to argue with police officers.
He also knew that under the law,
that unless he was arrested,
he was free to go.

79.

Publicity of law: “KNOW YOUR RIGHTS”
So he knew to ask the policeman,
“Officer, am I free to go?”
Question 3…

80.

Lon Fuller exercise: Question 3
3. Imagine that I say in the classroom on 4 April:
“The assignment I am giving you now
was due at 5:00 pm yesterday.
Anyone who did not hand in the paper on time
will get a grade of zero.”

81.

Lon Fuller exercise: Question 3
What’s the problem?

82.

Lon Fuller exercise: Question 3
The problem is:
To hand in the assignment when it is due,
you have to be told about the assignment
before it is due, not after.

83.

Lon Fuller Question 3
Again,
remember the purpose of law,
according to Fuller. …

84.

Lon Fuller exercise: Question 3
People can be guided by a rule
--their conduct can be governed by a rule-only if they know what it says
before they act.

85.

Lon Fuller exercise: Question 3
I did tell you publicly
that you had an assignment
and when it was due,
but I did not tell you in time
for you to do the assignment
by the deadline.

86.

Lon Fuller exercise: Question 3
If the purpose of laws,
as rules,
is to govern human conduct,
people have to know or be able to find out what the laws say
in time to obey them.

87.

Lon Fuller exercise: Question 3
Laws generally have to relate to conduct
that happens after they are enacted, not before.

88.

Lon Fuller exercise: Question 3
This is the requirement that laws be prospective
(=taking effect in the future)
[Предполагаемый?, будущий?],
not
retroactive
(=taking effect beginning in the past)
[задним числом?]

89.

Lon Fuller exercise: Question 3
Some decisions by judges can be seen as retroactive—
the parties to the case did not know
when they acted
what the law would later be determined to be.

90.

Lon Fuller exercise: Question 3
And, aren’t the laws supposed to be public,
so people know what is expected of them?
Isn’t it also failure of publicity,
if people don’t know what the law is,
before they act?

91.

Lon Fuller exercise: Question 3
But the retroactivity of a decision by a court
is unavoidable:
the dispute has to be resolved.
Anyway, the result cannot be predicted in advance.
(If the result could be predicted in advance,
there would be no litigation.)

92.

Lon Fuller exercise: Question 3
We will discuss this problem further
in Unit 2 of the module.
On to Question 4…

93.

Short writing: ANSWER BOTH [PART 1] AND [PART 2]
[PART 1] What, according to Fuller, is
the purpose of law?
[PART 2] What was the point in
today’s lesson, that was hardest
for you to understand.
Come up with two questions
about that point,
and try to answer those questions.
Even if you don’t have any
questions, imagine two questions…
…a family member or friend
would ask you, if you told them
about today’s lesson,
and try to answer those questions.
It’s good practice
to explain something you understand.
As lawyers, you will have to
explain things you understand,
to clients and to others.

94.

END OF LESSON