Jurisprudence 315

University of Miami School of Law

Lon Fuller: Means & Ends

In reading this essay, it is useful to focus on the types of arguments that Fuller rejects.

There are two basic types, both of which are forms of philosophical absolutism:

1. "What is the highest human good"; "What is the ultimate aim of human life"
• You could argue that any discussion of law, especially one that would be in any way utilitarian, would first have to answer this question, since only by reference to this question can you answer any others. This is precisely the argument that Fuller does not intend to engage.
• Note that others -- including "practical philosophers" such as Posner, in contrast to Fuller -- believe that "ultimate" questions of philosophy do have relevance for "jurisprudence".
• What about the claim that the preservation of human life is the greatest good? Fuller argues that this is falsified by practice: we undertake risky projects, allow dangerous driving, etc.
2. "Everything is relative, isn't it?"

Fuller concludes that the unconditional primacy of ends over means is a logical mistake. For our purposes, however, the most important part of the argument is Fuller's rejection of the other extreme: the argument that one must as an initial matter focus only on means rather than ends.

Fuller's ambition is more than simply pointing out a logical error. In this essay, he hopes to re-characterize the ends/means relationship in legal philosophy. [Note that this means something other than "do the ends justify the means?" -- it refers to whether one focuses one's attention on the means to an end, or on the ends themselves.]

How does Fuller want us to think about philosophical problems?

• In a way that recognizes the complexity of social, economic, and legal institutions.
• An institution often serves more than one goal.
• These goals often (always? almost always?) lack a "lexical" ordering: "We love that we may be loved; and we want to be loved that we may love freely."
• Fuller asserts that social arrangements may not have a single "natural" form, but there is a limit to their plasticity.
• Thus, utilitarianism makes a false assumption about what arrangements are possible to achieve maximization. In fact, at best we maximize subject to constraints.

Is Fuller's approach a sufficient foundation from which to attack relativism?

The argument that Fuller's approach is sufficient think so, since the claim that not all arrangements are possible suggests that at least the "impossible" ones can legitimately be attacked.

Admittedly, this raises the problem of how we tell whether a proposed social arrangement is viable or deserves to be condemned.

• Experiment?
• Best guess?

And, what about the response that once we admit that there are states of being that you can't get to from here, that's enough to invalidate a theory based on trying various forms of social organization? In other words, if outcomes are path-dependant, don't we need to know our ultimate goal for fear of foreclosing the most desirable outcomes by taking the wrong path?

Fuller's reply is in effect that no matter what path you set down, Utopia isn't going to happen:

• We need rules, which means freedom can't be pure;
• Freedom depends upon the formal arrangements for its realization

[NOTE: we will see arguments that suggest informal rules are at least as important as formal rules.]

Fuller concludes that,

• Simple rules are better than complex rules;

How does Fuller think he (we) can get away with staying on the middle ground?

Analogy to architecture:

• We must focus on the possible. When designing a building we don't start with an investigation into the nature of the beautiful and then wait until we feel confident we know something about that which is most beautiful -- people need places to live.

• Similarly, we don't approach the problem of designing a house with the idea that all homes are equally worthwhile, so why bother to try to build a "good" one.

Everything below this line is optional:

Compare Judge Posner's view with Lon Fuller's. Posner echoes the traditional view that:

• "Law" is definitionally equal to "publicly declared and enforceable norms". [We'll come back to the validity of that view later on.]

• "Law" does NOT equal a "self-help" system.
• Law creates an "agency problem": How to cabin the discretion of the "law caste" (i.e. lawyers and judges)? How to ensure that the "law caste" acts in interests of all society [This incidentally, is a distinctly modern twist on the age-old problem].

Posner asserts, with much reason, that traditionally Jurisprudence has concerned itself greatly with the care and mentation of judges. Thus, many traditional jurisprudential works, at least in the Anglo-American tradition, concern problems such as,

• Where do judges get their ideas?
• Is judicial decision making "subjective" or "objective"?
• Is (or ought to be) the foundation of judicial decision making positive [man made] law or natural law
• Are judges objective? What is "objectivity"? Is it possible?

• According to Posner, two historical movements make issue of "objectivity" central to jurisprudence:
• The increasing division of labor, leading to the creation of a "law caste" and the "agency problem".

• Three "stages" of "growing efficacy of law in society":

• Law [first?] becomes aspirational (e.g. Soviet constitution): laws are written to effect/force/promote social change rather than reflect what ex existing understandings [It's interesting to speculate to what extent Posner would identify with theories of the "organic nature" of law springing from the masses -- something that in various guises has appealed to figures a diverse as Gramci and Karl Llewelyn.]
• Law on the books is live and growing, but differs from law in action due to structural impediments. The bar is not upset about this. (US 1800-1960).
• Bar wakes up to "delivery"/"reality" issues (US today -- the highest form of legal life).

[Note the (debatable?) insinuation of a metaphor of movement forward towards an end -- this verges on the fallacy Quentin Skinner called the "Whig interpretation of history"]

• But in fact, issue of objectivity has always been with us.

Posner suggests that there have been several stages in the intellectual history of Jurisprudence:

1. The Greeks:
1. Antigone (Posner at 9) As Posner says, the legal/moral issue in the play is whether Poynices, who died in traitorous attack on the city, should get an honorable burial or suffer a traitor's burial, thought to have horrible consequences in the afterlife.
2. Creon, the leader of the city, represents "civic and instrumental reasoning" -- he believes it is important to deter treason by making punishment horrible. Antigone represents the polar view that: "law must conform to dictates of nature [gods]" -- a family must bury its own no matter what.
1. Note the close (but not inevitable?) link between natural law theories and religious ones. Nature need not be a divinity (it can be a Force, ie. "science"), but natural law theories fit neatly with divinity (e.g. Aquinas).
2. Note also a view not mentioned by Posner, but championed by Hegel: both Creon and Antigone are "right" -- that is the essence of tragedy. Query: is this particular type of Hegelianism a fertile view for a theory of law? What would Fuller say?
3. Thrasymachus [Thra sim ma' kus] represents positivism, the view that law is that no more or less than that whic is commanded by those with political will -- or rather, as Posner somewhat dubiously interpolates Thrasymachus's position, the law is that duly commanded by those with legitimate right to command it.
4. Socrates to Posner represents the view that law is an ideal and at least partially discoverable form -- a brooding omnipresence in the sky. [One might ask how this really differs from Antigone's view?].
2. Bentham
1. Bentham revived the issue of objectivity with his attack on the natural law underpinnings of Blackstone (rights are "nonsense on stilts")
3. Legal Formalism (e.g. Langdell);
1. Growing problem of, "Where does the common law come from?" is answered by Langdellism
1. Platonic idea of forms of law existing out there regains popularlity.
2. This dovetails with the growth of the scientific idea of law as discoverable by studying cases (data).
3. The issue of law's legitimacy remains unresolved.
4. Holmes and legal realism
1. Holmes (anti-formalism).
1. Law is not a science
2. Law changes over time
3. Law derives from life: "the life of the law has not been logic, it has been experience".
4. IE: Law is the pragmatic application of force deployed for concrete political reasons.
1. This includes popular prejudice
2. This changes over time, with fashions ("the Constitution does not enact Mr. Herbert Spencer's social statistics")
3. The judge's job is to shape the law to conform to -- or anticipate -- politically dominant community desires.
2. Posner's take on Legal realism. Posner denies that the judge's job is to do what Holmes says they do, but argues that judges act as if they agreed with Holmes.
5. H.L.A. Hart, and Positivism
1. Posner argues that H.L.A. Hart = Thrasymachus in Oxford clothing
2. I will argue that there is a little more to Hart than that.
6. The Legal Process school.
7. Dworkin
1. The judge is like a legislator, but isn't a legislator, and relies on "principles" to guide "discretionary: decisions on those occasions where it is right to use "discretion" at all.
1. Principles sometimes conflict [Hegel on tragedy? Fuller on love? Neither: see below]
2. Each case has a uniquely right answer [there is no tragedy; there is lexical order]
3. Hence there is no such thing as true judicial discretion in the sense of a free choice -- just people (judges) searching for right answers.
1. [Does it follow that a judge who thinks there is discretion is a bad judge?]
2. Problem: by defining principles to include all moral sentiments held by judges, have we defined the problem of discretion away?