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An Unobeyable Law Is Not a Law: Lon Fuller’s “Desiderata” Reconsidered


In this Article, I discuss the question of Lon L. Fuller’s proper placement within the outline of legal theory, particularly the extent to which he can be viewed as defending a kind of natural law tradition. In considering this question, I advance three closely related claims about Fuller’s conception of the rule of law. First, I claim that his eight “desiderata” are formal features of a legal system, and I rebut a recent argument by Professor John Gardner, who suggests that modality, rather than formality, better describes the rule of law. Second, I claim that the formal desiderata can be viewed as both inclusion conditions by which, per Fuller, law can be identified, and as standards by which law so identified may be judged. In other words, the rule of law for Fuller is not merely a set of standards but is also part of his concept of law in that a certain threshold compliance with the rule of law is necessary for a form of social ordering to qualify as law at all. I answer Hart’s “instrumentalist” attack on Fuller, claiming that, though law may be “compatible with very great iniquity,” as Hart asserts, there are particular iniquities law tends to cabin and subdue. Finally, I argue that the eight desiderata can plausibly be subsumed under the heading of Fuller’s sixth desideratum, that law not be impossible to obey. The latter desideratum deserves pride of place because it underscores what is central to Fuller’s concept of law more generally, namely, the inherent assumption of and respect for what Professor Kristen Rundle has recently described as the dignity and responsible human agency of those subject to law. I conclude that Fuller differs from natural law theorists insofar as his formal concept of rule-of-law-compliant law is largely indifferent to the justness of law’s substantive aims but that, contra positivism, Fuller views law as a system of social ordering in which certain moral choices have already been made—choices reflected in the tendency of the desiderata to promote justice and respect for the citizen subject to law.