“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy. It is the object of this book to identify those goods and those requirements of practical reasonableness, and thus to show how and on what conditions such institutions are justified and the ways in which they can be (and often are) defective.” So wrote John Finnis at the outset of Natural Law and Natural Rights. We often think of Finnis as being distinctive among legal philosophers in the modern era in wishing to place this question at the very centre of jurisprudential inquiry. It is not an approach to the subject that we immediately connect, in our reflections, with the legal philosophy of that other prominent opponent of legal positivist understandings of the legal order, Lon Fuller. But as Kristen Rundle’s excellent book Forms Liberate reminds us, Fuller was unwavering in his insistence that there is something distinctive and important about legal forms, that there are aspects of the human condition, of incalculable importance to us, that can be “secured only through the institutions of human law.” At the same time, Fuller also connected this distinctiveness of form with the issue of practical deliberations, of the manifestation and respect of human agency.
The main purpose of Forms Liberate is to “reclaim” Fuller’s jurisprudential concerns from the periphery of present-day philosophical debates, and to return them to the centre of our inquiries so that they might interrogate the assumptions, both of method and of substance, that continue to structure the domain of inquiry. The title of the book comes from a working note of Fuller’s, written during the preparation of his “Reply to Critics,” in which all except those two words are scored out: “forms liberate.” Drawing heavily upon Fuller’s private papers, the book attempts to explain the significance of that image for Fuller’s project, to situate it in the context of Fuller’s thinking as a whole. Rundle suggests that Fuller never managed successfully to articulate his agenda within the much narrower context that Hart forced upon their famous exchanges, which often left Fuller bewildered: in particular, “Fuller losing himself and some of his best ideas to the challenge of understanding why Hart and others had dismissed him so harshly…” (P. 5.)
A great deal of Forms Liberate is devoted to uncovering the broader context of Fuller’s jurisprudential vision. It is informed above all by “eunomics,” the theory of good order. Previous studies of Fuller have explored the significance of this dimension of his thinking, but none have done so with as much sensitivity, patience and depth as is exhibited here. The extensive employment of Fuller’s unpublished papers reveal aspects both of Fuller’s work, its motivations, ambitions, concerns, and of Fuller as a thinker. The book aptly conveys how much we stand to gain by examining, as Fuller does, the meaning and import of the variety of legal forms: the distinctive forms of contract law, of property, or of adjudication itself. What marks these out, and what makes them significant, as forms of governance?
Everyone is familiar with Fuller’s enumeration of the eight fundamental principles of legality in The Morality of Law, and his insistence that taken together they amount to an “internal morality of law.” Rundle does more than previous interpreters of Fuller to show in detail how this question of “internal morality” is guided by a vision of “what it means for a lawgiver to treat the legal subject with respect as a responsible agent.” (P. 8.) The principles create not only a certain ethos on the part of the lawgiver as to the meaning of his role, not only a set of constraints upon the form in which power is exercised, but at the same time, a “particular conception of the legal subject as someone who must possess the necessary responsible agency to be able to interact with general rules, and the conditions through which they are communicated…” (P. 9-10.) Hart too gave consideration to this very question, at the beginning of Chapter VII of The Concept of Law, but unlike Hart, Fuller develops a perspective from which the distinctive form of law instantiates a relationship with responsible agents that demands “more than forbearances.” (P. 10.) The principles of legality are not simply constraints upon lawmaking (least of all intimations of efficient lawmaking), but hint at “an idea that is broader”: a conception of the relationship between law and human agency that is “reflected in the observance of the eight principles but which is not exhausted by them.” (P. 92.)
Previous encounters with Fuller’s jurisprudence have emphasized the law’s creation, when in accordance with the eight principles, of domains in which an individual is rendered free of the will of others, thus enjoying a domain of privacy and freedom in which to elaborate and pursue his own interests. But as Rundle points out, the implications that Fuller wished to draw out were considerably broader, amounting above all to 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.” (P. 97, quoting Dworkin.) The citizen is not one who is simply “acted upon,” whose only response to being governed by laws is obedience or disobedience. It is the situation of someone who has regard for how her conduct affects the position of others in society, who is capable of acting not only out of her own interests but as an active participant in the legal order. (Pp. 99-100.) Rundle connects this image with the Greek spoudaios, but it could equally be associated with the image of the person whose practical deliberations are properly centred upon the fostering, and perhaps even enhancement, of the common good: one who possesses, and comprehends, their duties in justice.
Reading Forms Liberate, I was struck by the many points at which Fuller’s attempts to understand the meaning and requirements of “good order,” and its connection to legal forms, connect with the questions of justice, order and community that lie at the heart of the inquiry in Natural Law and Natural Rights. Indeed the association of these concerns with the very manifestation of practical reasonableness is an abiding concern of both inquiries. There seems to me to be much room for fruitful engagement with this range of issues, not least because the specifically legal philosophy of NLNR is usually accorded less prominence than the considerations attaching to its political and social theory: as Rundle points out early on, “Fuller was a lawyer, not a philosopher. Thus, in his writings we do not find, as we do in Hobbes or Kant, a trajectory of inquiry that starts with the premise of human agency and moves from this to the necessity of law…” (P. 9.) It is therefore a matter for regret that Finnis is mentioned only twice in Forms Liberate, both times en passant. Rundle (in a sense understandably) wants above all to put Fuller in dialogue with Raz and Dworkin. To do so is to place Fuller’s concerns at the centre of current debates.
Raz undoubtedly demonstrates a concern with the significance of practical reasoning and agency, and in this sense promises to “open up a novel site of engagement with Fuller.” (P. 23.) But as Rundle observes, the distinctive nature of Raz’s concerns provides much less scope for connecting this inquiry, as Fuller would undoubtedly have wanted, with the question of the law’s relationship to morality. Similarly, Dworkin’s jurisprudential vision in bringing into question contested conceptions of the value of legality, has resulted in his “arriv[al] in territory that was Fuller’s primary turf. (Id.) But I wonder how far this is really the case. Dworkin has no abiding interest in the distinctive form of law. In Justice in Robes, he divides the concept of law into a “doctrinal” and a “sociological” concept. The former pertains to the identification of legal standards, specifically bringing into question the extent to which the law has a moral dimension; the latter pertains to the law’s status as a distinctive type of social institution (Justice in Robes, 1-5). Whereas the doctrinal concept represents (in Dworkin’s eyes) a question of huge practical and philosophical importance, the sociological concept is devoid of philosophical significance, deriving temporary significance from whatever purposes sociological inquiries are thought to fulfill (Id. at 2-3). There is no sense in which, therefore, legal order possesses importance as an object of moral contemplation in virtue of its distinctive form.
The important chapters, 6 and 7, of Forms Liberate certainly offer much food for thought, not only about Fuller’s body of work and its implications, but also about the way in which Raz’s and Dworkin’s outlooks should be understood. But there is a potential cost of distortion in allying Fuller’s concerns about legality to these projects, with their associated philosophical baggage. Is there (for example) more than a superficial similarity (perhaps a similarity of terminology) between Fuller’s and Dworkin’s concern for “responsible agency” as a central object of thought? (P. 173-74.) The meaning of “agency” is for Dworkin bound up with an avowedly Protestant understanding of community, (Law’s Empire, 190) and of the process of reasoning itself, which does not straightforwardly cohere with concerns about the nature of “good order.” More than anything, it generates concerns with the “guidance” and “constraint” of governmental power, and the manner in which these concepts demonstrate respect for individual rights (Id. at 93): a very different question to one focused upon the distinctive characteristics and concerns of the spoudaios, and the conditions for its emergence. Rather than “overstating” the points of difference between Fuller and Dworkin (Forms Liberate, 188), I wonder whether the book significantly understates them.
The book’s final chapter asks “what can be learned from the project of reclaiming and re-situating Fuller for the kinds of conversations we might now have about the animating themes of his jurisprudence…” (P. 191.) Specifically, the question is what we can learn about the way Fuller’s thinking “engages with, interrupts or gives content to the ideas of morality, instrumentalism and legality.” (Id.) Repeatedly, the sense gained from Fuller’s work, both published and unpublished, is that he regarded the dominant positivistic conceptions as “fundamentally incomplete”: that the difficulty with source-based conceptions of law “is their failure to qualify their instrumentalism with the legality of law.” (P. 197.) The overall image of Fuller is of a philosophically-minded lawyer thinking his way into, and amongst, these problems, seeking answers to them but at the same time seeking to foster an awareness of how complex and intractable they are. Forms Liberate presents a sympathetic picture of a thinker whose very lack of certainty formed part of a conception and method of philosophy: not as a distinctive kind of activity which might take as its object law, as a source of interesting puzzles that stand to be “solved”; but as a kind of reflection upon legal problems, and upon the implications of legal forms and doctrines, being prepared to extend the inquiry ever more broadly and deeply, perhaps without end.
To this end, one might ask for what purpose it is desirable to “reclaim” Fuller. Is it, as here, to put Fuller into more direct and fruitful dialogue with the dominant philosophical conversations of the day? Or should we be revisiting Fuller’s work as a source of insights into those conversations that we are not having, but ought to? Are Fuller’s ideas and concerns displayed in their best light, and their full significance, when in dialogue with philosophers such as Raz, Shapiro and Dworkin? Or when contemplated in the light of the philosophies and concerns of Aristotle, Plato, Kant, Aquinas? Forms Liberate elucidates Fuller’s thinking in a way that leaves the door invitingly open to such inquiries, even if it does not itself undertake them.
Rundle has produced a highly informative and thought-provoking book, rich in detail, sensitivity and rigour. It succeeds admirably in its aim to re-orientate our understandings of Fuller’s thinking, and leaves the reader with the desire to revisit and reflect anew on his central concerns.