11 Lon L. Fuller

Kreon: Now tell me, briefly and concisely:

were you aware of the proclamation prohibiting those acts?

Antigone: I was.

Kreon: You still dared break this law?

Antigone: Yes, because I did not believe

That Zeus was the one who had proclaimed it;

Neither did justice,

Or the gods of the dead whom Justice lives among

The laws they have made for men are well marked out

I didn’t suppose your decree had strength enough ,

Or you, who are human,

To violate the lawful traditions

The gods have not written merely, but made infallible.

These laws are not for now or yesterday,

they are alive forever;

And no one knows when they were shown to us first.

I did not intend to pay, before the gods, for breaking these laws

Because of my fear of one man and his principles.

I was thoroughly aware I would die

Before you proclaimed it;

of course I would die, even if you hadn’t

No, I do not suffer from the fact of death

But if I had let my own brother stay unburied

I would have suffered all the pain I do not feel now.

And if you decide what I did was foolish,

You may be fool enough to convict me too.1

This is a dialogue between Kreon King of Thebes and Antigone his niece living under his protection who decided to bury her dead brother even though Kreon had prohibited his burial. As per the orders of Kreon dead body of all who had fought against Kreon had to left in open to be devoured by the vultures. Antigone defies Kreon on the ground that she would rather obey the law of God and humanity than law of one man.

This is the reply and stand which judges at the Nuremberg trial and jurists like Lon. L. Fuller would have expected from persons who were obliged to commit atrocities under the orders of Nazi party and obey the laws of Hitler against the laws of humanity. Fuller is in total agreement with Gustav Radbruch that it was the excess of positivist thinking that had made Nazi regime possible. Command of the sovereign had become the final word in deciding its legal character. The command of positive law theory need not follow any norm of society or principles of

1 Sophocles, Antigone Translated by Richard Emil Braun (Oxford University Press, 1973) pp. 38-39

humanity. Can killing at the order of state be called murder? Judges at Nuremberg and Fuller said yes. Can an act done at the orders of sovereign be illegal? Again the answer was yes because the order of sovereign was invalid! This was revival of natural law for the purpose of re-infusing values in the commands of the sovereigns. This revival sought to put certain normative limitations on the law making powers of the sovereign. Lon.L. Fuller is the foremost jurist dedicated to the effort of infusing moral content in the laws made by 20th century sovereigns.

Fuller developed his theory on criticism of Hart’s theory of independence of legality from any criteria of morality.2 For Fuller law has to contain both inner morality and substantive morality in order to pass the test of legality. In most cases adherence to former would guarantee adherence to latter too.3

Inner Morality of Law: Inner morality of law is concerned with propriety in law making process which would ensure that only just laws are made by the State. For this purpose Fuller asks us to imagine sovereign Rex who wants to completely overhaul the legal system in his kingdom. He repeals all existing laws in his kingdom and starts making new laws for his kingdom by process of trial and error. In this process eight principles of law making are discovered which should be followed in any law making process. These are as follows:

1. Laws should be general in character

2 Lon. L. Fuller, Positivism and Fidelity to Law: A Reply to Prof. Hart 71 Harv. L. Rev. 630

3 Since Hart-Fuller debate is discussed in another module, in this module only substantive aspects of Fuller’s theory is discussed.

2. Law should be made public: Rex initially keeps these laws secret from the public. But public resents this secrecy as they would like to know in advance the laws which would make their actions illegal so they can avoid it.

3.  Laws should be prospective in nature. Subjects should know the laws in advance.

4.  Laws should be clear and understandable

5. Laws should not be self-contradictory

6. It should not ask to do impossible: “To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no end but confusion, death and chaos.”4

7. It should not be changed frequently: “A law that changes every day is worse than no law”5

8. There should be congruence between official action and declared rule.

When these rules for law making are followed, the resultant law is more often than not a just law.

Substantive Morality: According to Fuller Law has a purpose. Commenting on the open-texture of law and hard cases of H.L.A. Hart, Fuller stated that when a judge interprets any law he takes into account the purpose of the law. A judge does not exercise his discretion in vacuum. The social purpose which was force behind the enactment of the law is taken into account by the judge in interpreting ambiguous terms or exercising discretion in hard cases. In this way we see Fuller is close to Dworkin who says that judge has discretion in the weak sense because a legal system not only comprises of rules but also of principles and in hard cases judge takes those principles into account.6 Inner morality of law normally ensures substantive morality also. However, Fuller accepts that law should aim at substantive morality. For this purpose he distinguishes between morality of duty and morality of aspiration. According to him morality of duty is the minimum substantive morality which every legal system should embody within itself. Morality of aspiration is the ideal or goal of

4. Lon L. Fuller, The Morality of Law 37 (1969)

5 Id.

6 Sheela Rai, “Hart’s Concept of Law and the Indian Constitution” (2002) 2 SCC (Jour) 1.

complete justice towards which a legal system should progress. Success in this progress would depend on many factors. Therefore no legal system should blindly proceed towards morality of aspiration as it would result in sacrifice of individual rights and liberty.

Taking clue from Aristotle, Fuller suggests that every legal system should work out a ‘mean’ between morality of duty and morality of aspiration and should work towards achievement and maintenance of this ‘mean’.7

Fuller and the Indian Legal System: Fuller developed his theory as a check on excess of positivist thinking which emphasized too much on autonomy of law from any social or moral norms. According to positivists, proclamation of State laying down certain norms was ‘law’ which had to be followed by the citizens of that State, irrespective of its content. Positivists

7 Lon. L. Fuller The Morality of Law (1969)

were preoccupied with identifying law as a distinct institution from other social and religious institutions. Fuller and others who revived the natural law thinking were concerned with the content of the ‘law’ on which depended the obligation of the individual to obey or disobey it.

How far Indian legal system incorporates morality within its ambit? Many provisions of the constitution empower the legislature to make laws which enforce moral principles, for example articles, 19(2), 19(4), 25 and 26. However, this is not what Fuller is concerned with. Enforcement of morality would be more within the ambit of Hart-Devlin debate that has been dealt in another module. Fuller is concerned with validity of immoral laws. Should an immoral enactment or command be considered a ‘law’ at all? Actually a legal system within itself normally does not have an answer to this question. A law made by its authorized bodies after adopting authorized procedure is normally not questioned on the grounds of morality or natural law principles unless there is another higher law within the legal system against which its validity can be checked. This higher law or the fundamental law in the Indian legal system is the Constitution of India. It can also be called Hart’s secondary rule of recognition. This secondary rule of recognition can have terms like ‘reasonableness’ non-arbitrariness’, ‘justice’ ‘fair and just process’ which would allow the courts of the country in the process of examining the validity of legislative or administrative actions through the process of judicial review, to import prevailing principles of morality and natural law.

The Indian Supreme Court has transformed its role drastically from A.K. Gopalan to present day. In A.K. Gopalan v. State of Madras8 the Supreme Court refused to examine ‘law’ in terms of ‘jus’ (justice). It adopted a strict positivist posture that law would be considered only as a ‘lex’ and it would not be examined on the grounds of reasonableness and justice. Even though in Keshavanand Bharti9 the court propounded the theory of basic structure and sought to limit the amending power of the legislature on the basis of certain ‘fundamental principles’

8 AIR 1950 SC 27

9Keshvanand Bharti v. State of Kerala (1973) 4 SCC 225

of the Constitution, in ADM Jabalpur vs. Shiv Kant Shukla10 again except for Khanna, J. the Supreme Court adopted a strict positivist stance. However, after the emergency the Supreme Court changed its posture. In Maneka Ghandi v. Union of India11 the court clearly stated that procedure established by law under art. 21 cannot be any procedure, but has to be just, fair and reasonable procedure. Meaning of terms ‘life’ and ‘personal liberty’ under article 21 have also been interpreted in wider sense. Article 14 similarly has been interpreted in wider sense. Violation of article 14 is now not judged only on the basis of reasonable classification and intelligible differentia. Even if the law does not violate the two criteria it can still be held to be arbitrary because in the case E.P. Royappa12 Bhagwati, J. stated that equality and arbitrariness are sworn enemies. Best example where law was held to be violating article 14 even though there was reasonable classification which corresponded with the object of legislation is Nergesh Meerza13. In this case the Supreme Court held that the rule whereby services of air hostesses was terminated on first pregnancy was arbitrary as it insulted the ‘Indian motherhood’. This case is a good example where the court held a law to be bad on moral grounds even though in strict positivist terms there was nothing in the primary rule of obligation which conflicted with the secondary rule of recognition. In this way a positive norm was adapted to provide justice in particular facts of the case.

Morality, however, is a subjective notion and in a particular case it becomes tricky to predict what the demand of morality is. The Bearer Bond Case14 is a classic example which shows that morality can be a debatable issue. In this case the majority of the Supreme Court refused to declare a law unconstitutional on the grounds of morality and stated that morality cannot be a criteria for declaring a law arbitrary. Even if a law is considered immoral, it may be more prudent to allow the law to be implemented. Therefore in the process of judicial

10(1976) 2 SCC 521

11(1978)1 SCC 248

12E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3

13Air India vs. Nergesh Meerza (1981) 4 SCC 335

14R.K. Garg vs. Union of India (1981) 4 SCC 675

review, Court may have to balance demands of morality with many requirements of statecraft.

The new expanded interpretation of articles 21 and 14 is helping not only to provide justice in many cases but also to fill in the gaps due to absence of law. In this way right to education, right to health, prevention of harassment of women at workplace were recognized as part of right to life under article 21 by the Supreme Court at a time when there were no laws to protect these interests of Indian citizens. Decisions of the court persuaded the Parliament to examine these issues and to come out with suitable legislations and amendments in the Constitution. This way we see that actual positive law followed the decisions of the court which were made according to certain aspirations of society which were considered to be good. But what can be the mean between morality of duty and morality of aspiration? The Supreme Court decision in Minerva Mills v. Union of India15 highlights a situation where it would be necessary to safeguard individual rights and liberties against socially friendly policies. In the Indian context fundamental rights can be called morality of duty and directive principles morality of aspirations. In Minerva Mills case the Supreme Court declared that amendment of the Constitution whereby precedence was given to all laws implementing directive principles over fundamental rights was not in consonance with the basic structure of the Constitution because in the Indian Constitutional scheme there was a balance between the fundamental rights and the directive principles and this balance was part of the basic structure of the Constitution. What the Supreme Court called as balance between fundamental rights and directive principles was the ‘mean’ between morality of duty and morality of aspiration mentioned by Lon. L. Fuller.

With regard to inner morality of law Indian legal system provides for rule of law and procedure established by law and that procedure should be just, fair and reasonable.16 Laws in India are made public by publication in the gazette. They are normally general in nature.

15Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625

16Maneka Gandhi v. Union of India

Although in the case of Chiranjeet Lal v. Union of India17 the Supreme Court had allowed single person law, normally courts find single person laws incompatible with article 14 of the Constitution. In Indra Nehru Gandhi v. Raj Narain18 Mathew, J. stated that constitutional amendments were also law and they cannot be made to decide particular cases, they have to be general in nature. Art. 20(1) prohibits retrospective laws in criminal liability. But there is no such prohibition for civil liability. Best examples are tax laws. However, with development of international accountability, retrospective civil liability as in the Vodafone Case19 can create problems for the national legal system. As for the inner contradiction in laws and laws requiring impossible acts is taken care of in cases of interpretation of the laws and in judicial review. Official actions have to be incongruence with the existing laws otherwise they are declared ultra-vires and arbitrary in the process of judicial review.20

Law and Morality: Role of Judiciary: In liberal legal regimes natural law principles are imbibed in certain in certain terms under the fundamental law of that country. Terms like ‘reasonableness’, ‘due process’, arbitrary etc. give scope to the judiciary to ensure that laws promulgated by the legislature adhere to basic principles of that social and legal system. However, for this it is necessary that judiciary itself has to be sensitive and accountable to the general public of that legal system. In most of the modern democracies judiciary forms the oligarchic branch of the governance system. In such a situation there is a danger that the legal system may get divorced from the prevailing social principles as the judges may have no connection or accountability to the general population of that system. Fuller’s or even Hart’s legal system would fail in this scenario as the legal system may lose the general social acceptance.

17AIR 1951 SC41

181975 Supp (3) SCC 217

19Vodafone International Holdings B.V. vs. Union of India & Anr. Civil Appeal o. 733 of 2012 available at <http://supremecourtofindia.nic.in/outtoday/sc2652910.pdf>

20For an exhaustive analysis of cases see Udai Raj Rai, Fundamental Rights and their Enforcement (Prentice Hall of India, 2011)

Hence it is necessary that appointment of members of judiciary especially higher judiciary is made through a process where wider social and political participation is possible. This is necessary to retain higher judiciary that takes decision on important constitutional matter as responsive to social, economic and political principles instead to becoming an insular group of persons who have lost touch with people of India.21

21Sheela Rai, “The Theory of Natural Law and the Indian Constitution” Indian Bar Review Vol. XXVIII (2& 3) 2001, at p. 217.

Morality of Law and Weapon of Civil Disobedience: Advocates of natural law feel that immoral laws lack the character of ‘law’ therefore there is no obligation on the subjects to obey them. In case the legal system itself is abhorrent to the general idea of morality, solution is simple, revolution. In this case there is little difference between solutions given by Hart and Fuller. But often it happens that particular laws in a legal system may not be acceptable to the general idea of morality. In such a case the weapon accepted in civilized societies is that of ‘civil disobedience’. Civil disobedience was used and developed by Socrates, Thoreau and Mahatma Gandhi as a tool to force change in immoral or unjust laws. Thoreau used it to oppose certain taxes which he considered unjust. Mahatma Gandhi used it to oppose taxes on salt. Mahatma Gandhi linked civil disobedience with morality by naming it ‘Satyagrah’. According to him the word Satyagrah is combination of two Sanskrit words ‘Satya’ and ‘Agrah’ ‘Satya’ derived from root ‘Sat’ means that ‘which exists’ and ‘truth’. Therefore only truth can exist. ‘Agrah’ means to persuade. Something which is untrue or bad cannot exist and bad or immoral laws are not laws at all. Civil disobedience is a persuasion to not enforce law which cannot exist and a subject should be under no obligation to obey it.

We can see that Mahatma Gandhi’s concept of satyagrah is similar to what Fuller and judges at Nuremberg trial expected of persons accused of obeying Nazi law. Something which Antigone had done by saying she does not recognized existence of laws of Kreon as they were against laws given by Zeus.

Further Readings:

1. Lon L. Fuller, The Morality of Law Yale University Press, 1977
2. Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart” Harvard Law Review, Vo. 71 No. 4(Feb, 1958) pp. 630-672
3. R.D. Dixit, Civil Disobedience: A Philosophical Study (Gdk Publications, 1980)
4. Sheela Rai, “The Theory of Natural Law and the Indian Constitution” Indian Bar Review Vol. XXVIII(2&3) 2001 pp. 201-220
5. Sheela Rai, “Hart’s Concept of Law and the Indian Constitution” (2002) 2 SCC (Jour)
6. Udai Raj Rai, Fundamental Rights and their Enforcement (Prentice Hall of India, 2011)