Fuller, the Nazis, and Law

The world has just commemorated the eightieth anniversary of the liberation of Auschwitz-Birkenau, a Nazi extermination camp which was a key engine of the Holocaust. In the aftermath of World War II, there was a fierce debate among legal scholars about how best to view this and other atrocities committed by the Nazi government. Had the Nazis simply passed and enforced valid laws whose content was evil?, (as legal positivists such as H.L.A. Hart contended), or had the Nazis made laws which were defective because of they failed to clear a threshold of serious injustice?, (as Gustav Radbruch insisted, now presenting a natural law view of law), or was there something about the way in which the Nazis had governed Germany and the territories they conquered which meant that the Nazis had, in some respects, failed to use law at all? Lon L. Fuller, an American professor, argued in favour of this last view.

The Nazis had imposed a reign of terror on their subjects: they passed retrospective laws, which declared things to be a crime which had not been a crime at the time the acts took place; they issued secret orders and decrees; they arrested and imprisoned people without any intention of bringing them to trial, they gave immunity to more or less organised groups who carried out burglaries, destruction of property, committed assaults and murders; Nazi judges imposed criminal penalties on acts which did not fall within the wording of statutes but were held to be analogous; and, from Kristallnacht in 1938 onwards, the Jews were first persecuted with impunity, then rounded up, and enslaved, worked to death, and finally murdered on an industrial scale.

Fuller insisted that this was not simply a use of law as a tool for bad ends; it was a deliberate and ultimately systematic abandonment by the Nazi regime of any commitment to law at all. Fuller put forward his argument in The Morality of Law (1964), originally given as 4 lectures, and defended it against attacks by Hart and other legal positivists by adding a fifth chapter to the revised edition in 1969.

In The Morality of Law, Fuller contended that there are a set of eight formal requirements for good law-making. Good law-makers make laws which are general (#1), published (#2), prospective (#3), clear (#4), non-contradictory (#5), not impossible to comply with (#6), not constantly changing (#7), and enforced by officials in congruity with what is written down (#8). When those requirements are largely honoured, then the purposes of law, which are to promote human freedom and flourishing, are respected. Law-makers who conscientiously seek to act in accordance with these principles govern according to the rule of law.[1]

Legal positivists accused Fuller of being confused, suggesting that he had simply described what a ruler has to do if the ruler wishes to use law as the way in which they wish to govern. As Joseph Raz famously put it, law is simply like a knife, which can be put to any purpose you choose. However, the force of Raz’s critique begins to unravel when you think about the different kinds of knife which exist. Some are designed to chop vegetables, others to cut down undergrowth, others to maim and harm. Instruments which are made for one purpose can often be misused for another.

Fuller rejected the legal positivists’ accusations. He insisted that the eight principles he had identified were the inner morality of law. He even went so far as to say that they amounted to a kind of procedural natural law. They were natural law principles because they drew attention to an intrinsic connection between law and morality (a conceptual link which Hart and other legal positivists denied), because they showed law to be an exercise of reason and not just of brute power, and because they highlighted that making and obeying law is a purposive exercise. In short, they were a vital reminder that law cannot be described without understanding the role good law can play in protecting human freedom and promoting human flourishing.

In the chapter he added to the revised edition of The Morality of Law, Fuller pointed out the difference between a legal system and a regime of managerial direction. When we go to work, Fuller said, the manager wants us to work to achieve the manager’s purposes. In such an environment, the manager does not have to follow all eight of Fuller’s principles in order for us to work efficiently. However, what a law-maker does, if they conscientiously try to observe the eight principles, is to open up possibilities for their subjects to pursue their own goals, to make their own life-choices, to have those life-choices respected by others, and to build safe homes, find rewarding occupations, and contribute to flourishing communities in which violence is the exception and breaches of the peace are condemned and addressed. Dan Priel has argued that Fuller has a particular vision of the kind of freedom which he thinks good law-making promotes. That freedom is not just autonomy or the freedom to be left alone. It is, instead, “it is enfranchisement, “effective participation” in the affairs of the community.[2]

Fuller’s ideas about the distinctive contribution of good law-making to human flourishing were insightful but he was not a theologian. He rejected the idea that his eight principles were derived from ‘any “brooding omnipresence” in the skies.”’[3] Procedural natural law is a necessary, but not a sufficient, basis for good law-making. Good laws recognise fundamental human equality, promote human dignity, and accord with the substantive as well as the procedural elements of natural law. Another writer who wrestled with the Nazi atrocities was C.S. Lewis. He insisted that: “The very idea of freedom presupposes some objective moral law which overarches rulers and ruled alike.”[4] Fuller’s agnosticism about the existence of such an objective moral law leaves his account of freedom feeling translucent and ephemeral.

Fuller’s writings highlight not one but two threats to the rule of law. One threat is the collapse of law into anarchy[5] or tyranny. The other threat is the deformation of law into managerial direction. The surveillance capitalism made possible by technological developments can abide by or mimic many of the requirements of legality, but only serves the purposes of the controllers rather than enabling the flourishing of subjects. Writing in the 1960s, Fuller warned that: “Today greed and the thirst for power most commonly find their outlet in the exploitation of institutional forms no longer animated by any clear sense of purpose.”[6] In our world today, both managerialism and tyranny can be found in different countries. Only a return to substantive natural law will be an effective antidote to purposelessness, social engineering, and the pursuit of self-interest by would-be tyrants.

If you want to read more about Fuller’s ideas, pick up a copy of David McIlroy’s book, The End of Law: How Law’s Claims relate to Law’s Aims.

[1] Lon L. Fuller, The Morality of Law, revd. ed. (New Haven: Yale University Press, 1969), 209-10.

[2] Fuller, ‘Freedom as a Problem of Allocating Choice’, 103.

[3] Fuller, The Morality of Law, 96.

[4] C.S. Lewis, ‘The Poison of Subjectivism’, in Christian Reflections, ed. Walter Hooper (London: Geoffrey Bles, 1967), 72, 81.

[5] A threat which Richard O’Sullivan saw arising from a rejection of the belief in the divine origin of, and substantive content of, the natural law: ‘Introduction: The Christian Spirit of the Common Law’, in Under God and the Law: Papers read to the Thomas More Society of London. Second Series. (Oxford: Basil Blackwell, 1949), xxiii footnote 1.

[6] Fuller, The Morality of Law, 176.