# Human interaction and the law

**Year:** 2001 [1969]
**Author:** Lon L. Fuller
**Keywords:** #fuller #human_ends #interaction #social_arrangements #customary_law #imperativist_theory_of_law #rule_of_law
**Permanent Notes:**
**Literary Notes:**

___

**Summary:**

___
## Editor's Note
(FULLER, p. 231)Winston claims that Fuller thought that an analysis of law such as Hart's neglects the relation or rather continuities between legal institutions and alternative forms of social ordering

> uller saw in such accounts, I think, a failure to recognize important continuities between our familiar legal institutions and alternative forms of social ordering. He regarded such a conception of law as too narrow and parochial, having the ironic consequence of hiding from view some pervasive features of our own institutions and thus rendering us unable to draw upon common experience in making cross-cultural comparisons.

(FULLER, p. 231)Winston highlights that Fuller seemed to think that a "formal" description of an agency in terms of constitutive rules is the least enlightening aspect of its character as a social phenomenon and that more is learned by shedding light on the purposes it serves and the means at its disposal

> In many instances, with legal institutions being no exception, the formal description of an agency in terms of its constitutive rules is the least enlightening aspect of its character as an ongoing social phenomenon. More can be learned from the purposes it is being made to serve and the resources at its disposal (including authoritative rules as one element).

(FULLER, p. 231)One important aspect in Fuller's account of social arrangements and institutions is the attention to their interactional aspect, i.e., the fact that social arrangements are a product of "countless interacting individuals that underlie official conduct".

> tress on the “official” character of an agency tends to overestimate its autonomy. In Fuller’s view, the practices of countless interacting individuals that underlie official conduct at any moment are what give the latter its shape and force.

(FULLER, p. 232) One interesting insight from Fuller is that law does not consist only of discrete and a set of official declarations, but is continuous with conventions and ever-changing shared understandings of those practices.
> In its fullest sense, then, “the law " does not consist only of discrete and readily identi- fied sets of official declarations but is continuous with conventions and understandings that are partly inchoate and evolving

## Human Interaction and the Law
(FULLER, p. 232) In this text Fuller uses "law" in a very broad sense, including not only legal systems of states and nations but also "law-like" social arrangements like labour unions, professional associations, churches, etc.
> As it is used in my title, I mean the word law to be construed very broadly. I intend it to include not only the legal systems of states and nations, but also the smaller systems—at least “law-like” in structure and function—to be found in labor unions, professional associations, clubs, churches, and univer- sities. These miniature legal systems are, of course, concerned with the mem- ber’s duties and entitlements within the association itself. They find their most dramatic expression when the etring member is called up to be tried for of- fenses that may lead to his being disciplined or expelled.

(FULLER, p. 232) One of Fuller's background aims with this article is to give an account of the moral and psychological aspects that underpin law and make it possible.
> We must come to perceive and understand the moral and psychological forces that un- derlie law generally and give it efficacy in human affairs.

### The Nature and Significance of "Customary Law"

(FULLER, p. 232) Fuller begins his text by highlighting the common distinction between on the one hand what is often called enacted, or authoritatively declared or _made_ law and, on the other hand, _customary_ law. Customary law is not the product of official enactment but owes its force to the fact that it is expressed in the conduct of men toward one another.
> I If in search of this understanding we turn to treatises on jurisprudence, we shall find that they commonly begin by distinguishing two kinds of law. On the one hand, there is enacted or authoritatively declared law—what may be called made law; on the other hand, there is what is known as customary law. Customary law is not the product of official enactment, but owes its force to the fact that it has found direct expression in the conduct of men toward one another.

(FULLER, p. 232-233) Fuller notices how customary law is often deemed as an artifact of primitive law and regarded as a kind of "museum piece" of interest only to anthropologists.
> The discus- sion of customary law is largely confined to the question, Why should it be thought to be law at all? After some discussion along this line, and some treat-ment of its function in primitive societies, customary law is generally dismissed as largely irrelevant to advanced civilizations. It tends to be regarded as a kind of museum piece offering an object for serious study only to anthropologists curious about the ways of tribal peoples.

(FULLER, p. 233)Fuller argues that _even_ if we accept this casual view of customary law we still have two good reasons to attribute importance to customary law:
1. Much of international law still is customary law
2. Much of the world today (he wrote this text in1969) is still governed by customary law, as is the case  in India, Africa and "the Pacific".

> Even if we accept the rather casual analysis of the subject offered by the treatises, it still remains true that a proper understanding of customary law is of capital importance in the world of today. In the first place, much of international law, and perhaps the most vital part of it, is essentially customary law. Upon the successful functioning of that body of law world peace may depend. In the second place, much of the world today is still governed internally by customary law.

(FULLER, p. 233)The thesis that Fuller wants to advance, however, is more radical, namely, the idea that we cannot understand enacted law unless we first understand customary law.

> The thesis I am going to advance here is, however, something more radical than a mere insistence that customary law is still of considerable importance today. I am going to argue that we cannot understand “ordinary” law (that is, officially declared or enacted law) unless we first obtain an understanding of what is called customary law.

(FULLER, p. 233)Fuller claims that there is a problem in the very term "customary law"

> In preparing my exposition I have to confess that at this point I encountered a great frustration. This arises from the term “customary law” itself.

(FULLER, p. 233)The problem lies in the pejorative notion of customary law as something which owes its force to mere habit or usage.

> Instead of serving as a neutral pointer, it prejudges its subject; it asserts that the force and meaning of what we call customary law lie in mere habit or usage.

(FULLER, p. 233)Against the view that customary law owes its force and meaning to mere force or habit, Fuller wants to argue for the following thesis:
- Interactiononal nature of customary law (INCL): "customary law can best be described as a _language of interaction_".

> Against this view I shall argue that the phenomenon called customary law can best be described as a language of interaction.

(FULLER, p. 233)In order to justify this thesis, Fuller begins by claiming that people require a social setting in which the actions of the other participants fall generally within some predictable pattern, so that they can interact meaningfully.

> To interact meaningfully men require a social setting in which the moves of the participating players will fall generally within some predictable pattern. To engage in effective social behavior men need the support of intermeshing anticipations that will let them know what their opposite numbers will do, or that will at least enable them to gauge the general scope of the repertory from which responses to their actions will be drawn.

(FULLER, p. 233-234)Fuller then argues that we commonly say that customary law offers an "unwritten code of conduct".

He elaborates on this notion and claims that the idea of a _code_ of conduct should be understood not only as (i) a kind of set of basic rules which prohibits certain conducts, but also as (ii) something which confers _meaning_ to certain foreseeable and approved actions, which then become a kind of orientation point for ongoing interaction.

> We sometimes speak of customary law as offering an unwritten code of conduct. The word code is appropriate here because what is involveds not simply a negation, a prohibition of certain disapproved actions, but also the obverse side of this negation, the meaning it confers on foreseeable and approved actions, which then furnish a point of orientation for ongoing interactive responses.

(FULLER, p. 234)Fuller draws from Talcott Parsons and Edward Shills' notion of "complementary expectations" and claims that this is one of the functions which customary law performs, that is, that of setting basic principles of conduct and normative expectancies regarding human interaction in a given context.

> Professors Parsons and Shils have spoken of the function, in social action, of “complementary expectations”;' the term complementary expectations indicates accurately the function I am here ascribing to the law that develops out of human interaction, a form of law that we are forced—by the dictionaries and title headings—to call customary law.

(FULLER, p. 234)Fuller hints at the problems with accounts of law explain it as being a set of discrete enacted norms by drawing a parallel with linguistics: suppose we were to encounter a book on language that in its first paragraph (i) defined a spoken language as a set of patterns of sound men make with their mouths, and (ii) that those patterns of sounds were set by custom and tradition and finally (iii) that the fact that the set of sounds only change in terms of minor modifications and additions due to the force of habit. 
Fuller claims that our reaction would be to reply that this (i) does not tell us what language is _for_, namely, communication and that (ii) it is this purpose of language which explains why is it that those patterns of sound will generally continue to be used by the next generations, i.e., because people want to be _understood_

> Pursuing the comparison with language, let us suppose we were to open a treatise on linguistics and were to encounter the following statement as the first paragraph of the book: A spoken language consists of certain patterns of sound men make with their mouths. The forms of these patterns of sound are set by custom and tradition; such is the force of habit that within any given culture men will always be found to make the same general set of sounds that their ancestors did, with at most minor modifications and additions. Surely, our reaction would be, this is a most curious way to open a discussion of language. We would be apt to say: But this statement does not tell us what language is for. Plainly its purpose is communication. If that is its purpose, why then of course men will go on using generally the same sounds their fathers did and that their neighbors do now: the reason they do this is simply that they want to be understood.

(FULLER, p. 234)Fuller argues that this kind of introductory account of linguistics is more or less the kind of account of customary law we find on jurisprudence treatises

> Yet in spirit and thought this imaginary introduction to linguistics is not far from what we find about customary law in treatises on jurisprudence.

(FULLER, p. 235)Fuller refers to Holland's "Encyclopedia of the Social Sciences", where he explains customary law with help of the figure of the "lonely pathmaker" who is followed by other people by force of habit, which is taken to be the element which accounts for the existence and prevalence of customary law in primitive societies.

> In the first edition of the Encyclopedia of the Social Sciences the article on customary law begins by citing Holland, borrows his figure of the lonely pathmaker, and ends its first paragraph by explaining the role played by customary law in primitive societies as being due to “the force of habit” which “prevails in the whole early history of the race.”3

(FULLER, p. 235-236)Fuller then draws attention to Salmond's account of customary law, which he deems better.

Salmond claims that customary law is justified as a standard for decision by courts because custom would be the embodiment of principles directed to the "national conscience" and that custom normally can be seen as something which raises a presumption of something which "deserves to obtain a sanction of law".

> Let me now quote briefly a passage from an author generally more favorable to—and, I would say, more perceptive about—customary law than those I have just quoted. Salmond in his Jurisprudence discusses the question, What reasons can justify a court in adopting customary practice as a standard of decision? One of these reasons he sees as consisting of the fact that custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice, and public utility. The fact that any rule has already the sanction of custom, raises a presumption that it deserves to obtain a sanction of law also. ... Speaking generally, it is well that courts of justice, in seeking those rules of right which it is their duty to administer, should be content to accept those which have already in their favor the prestige and authority of long accep-tance, rather than attempt the more dangerous task of fashioning a set of rules for themselves in the light of nature.*

(FULLER, p. 236)Fuller highlights that Salmond's account can be corrected in the following way: just like society may have rules imposed on it from above, it may also reach out for rules which seem to be acknowledged by collective preference and which facilitates and directs human interaction (often in a silent way).

Those kinds of rules are customary rules and, for Fuller, customary law.

> But as touching the nature of customary law the notion expressed seems to be that, just as a society may have rules imposed on it from above, so it may also reach out for rules by a kind of inarticulate collective preference. Men are seen as directing their interactions by a law that their society has, in some silent way, told them is just and proper.

(FULLER, p. 236)Fuller points out that what is missing in this account of customary law is an explanation of the social processes through which customary law comes into being and by which they are sustained.

> hat is missing is any inquiry into the actual social processes through which this law came into being and by which it is sustained.

(FULLER, p. 236)Fuller says that the problem in many accounts of customary law are not the questions legal theorists make, but the ones that they don't make, such as questions related to (i) the process through which customary law is created; (ii) what are the purposes and the functional needs that customary law serves; (iii) do these functional needs still exist and to what measure in our society?

> The point I wish to make here relates, in any event, not so much to what the writers say about customary law, but to what they do not say. They ask nearly every question that can be asked about customary rules except this one: What are the processes by which these rules are created? They ask, What should we do about inherited customary law? but not such questions as, What functions did that law serve among those who brought it into being? Do the same functional needs exist in our society, and if so, how are we ourselves meeting them? Do we have processes going on around us that are similar to those which before state-made law existed brought customary rules into being?

(FULLER, p. 236)In what follows Fuller tries to answer some objections against the Interactional Nature of Customary Law (INCL) Thesis.

> I should like to consider certain objections that may be raised against the proposal to view customary law as a language of interaction.

(FULLER, p. 236)The first objection against INCL is that in primitive societies there can be rules that have nothing to do with human interaction, such as rules regarding offenses against deities and spirits and foreseeing punishment against them

> The first of these objections is that customary law in primitive societies may lay down rules that have nothing to do with human interaction. There may be offenses against deities and spirits; a man may be punished, even by death, for an act committed out of the presence of other persons where that act violates some taboo.

(FULLER, p. 236)Fuller's reply to this objection is that it does not acknowledge how in animistic societies the range of significance of one man's actions may extend to acts which affect to what is perceived as a spiritual dimension of social life.

> The answer to this is, 1 suggest, that animistic views of nature may vastly extend the significance one man’s acts may have for his fellows.

(FULLER, p. 237)The second objection against INCL is that it attributes to customary law a "functional aptness" or "neatness of purpose" which does not fit the realities of primitive law, which is marked by what seems like pointless ceremonies and ritualistic routines, such that we cannot say that customary law necessarily serves the purpose of facilitating effective communication or the development of stable expectations that organize and facilitate interation.

> A further objection to the conception of customary law as a language of interaction may be stated in these terms: Any such conception is much too rationalistic and attributes to customary law a functional aptness, a neatness of purpose, that is far from the realities of primitive practice. Customary law is filled with ritualistic routines and pointless ceremonies; these may cater to a certain instinct for drama, but they can hardly be said to serve effective communication or the development of stable expectations that will organize and facilitate interaction.

(FULLER, p. 237)Fuller responds to this objection by claiming that ritualism serves precisely this function of communication in labeling a given act so that there can be no mistake as to their meaning (or intended meaning).

> In answer I would assert, on the contrary, that a significant function of ritual is precisely that of communication, of labelling acts so that there can be no mistake as to their meaning.

(FULLER, p. 238)Fuller mentions the example of wedding ceremonies in customary sustems as one manner to facilitate communication and clarification in societies without state-kept official records of marriage

> Certainly among a people who have no state-kept official records to show who is married to whom, the elaborate wedding ceremonies found in some customary systems can be said to serve a purpose of communication and clarification.

(FULLER, p. 239)Fuller also mentions how much of customary law of primitive peoples serve the function of making the meaning of certain acts clear in regard to reciprocal acts of hostility toward other group of people. The same seems to apply to the following kind of diplomatic practice: Country X demands withdrawal from Rank 1 Diplomat of Country Y because of some offense. Country Y then reciprocates and demands withdrawal from Rank 1 Diplomat from Country X from its embassy.
> ut much of the customary law of primitive peoples, it should be recalled, serves exactly the same function. Open and unrestricted hostilities between tribes often become in time subject to tacit and formalized restraints and may, in the end, survive only as a ritualistic mock battle.” Furthermore, in the diplomatic practice I have described here there may be present a richer reciprocity than appears on the surface.

(FULLER, p. 239)One problem with the expression "customary law" is its emphasis on the idea that mere repetition of act A creates a right to A and that the strength of right A can increase or decrease merely in virtue of the repetitive behavior related to A.

> As I have already observed, the principal objection to this word lies in its suggestion that the mere repetition of some action by A will create in others a right that A shall repeat this action, with an added implication that the strength of this claim will vary directly with the duration in time of A’s repetitive behavior. Of course, no theorist of customary law in fact embraces any such absurdity, however much the language employed may seem at times to suggest the contrary.

(FULLER, p. 239-240)Intead of just highlighting the element of custom, habit or repetition, Fuller claims that it would be better to speak of an obligation of customary law arising when a stabilization of interactional expectancies occurs, i.e., when a normative expectation regarding how one ought to behave and how others will probably behave and expect others to behave arises.

Notice that this makes Fuller's account of how customary rules arise very close to Hart's Practice Theory of Rules.
There is also an interesting proximity between Fuller's account and Luhmann's notion of normative expectancies (not coincidentally, since Fuller seems to draw from Parsons)

> Instead, therefore, of speaking vaguely of an obligation arising through mere custom or repetition, it would be better to say that a sense of obligation will arise when a stabilization of interactional expectancies has occurred so that the parties have come to guide their conduct toward one another by these expectancies.

(FULLER, p. 240)Fuller also highlights that we should not be misled by the term _interactional expectancy_ into thinking that those expectancies must be conscious. In fact, most of the time they aren't and we only realise we had those expectancies when they are not met in human interactions.

> The term interactional expectancy is itself, however, capable of producing difficulties. We shall be misled, for example, if we suppose that the relevant expectancy or anticipation must enter actively into consciousness. In fact the anticipations which most unequivocally shape our behavior and attitudes toward others are often precisely those that are operative without our being aware of their presence.

(FULLER, p. 240)Fuller illustrates his claim with an example of the rules of grammar: we often only become aware of them when they are broken and it is their breach that leads us to articulate them explicitly for the first time.

> Our conduct toward others, and our interpretations of their behavior toward us, are, in other words, constantly shaped by standards that do not enter consciously into our thought processes. The analogy of language is once again useful; often we only become aware of rules of grammar when they are broken, and it is sometimes their breach that leads us to articulate for the first time rules we had previously acted on without knowing it.

(FULLER, p. 240)Fuller points out that an analysis of the term "interactional expectancies" should also deal with the problem of people who are in some sense _outsiders_ to the expectancies that generally organize the life of a particular group

> Any analysis in terms of “interactional expectancies” must also confront the problem of the man who is in some sense an outsider to the expectancies that organize the life of a particular group. He may be literally an outsider, a trader, for example, coming from a distance to sell his wares among a tribal people. Or, though born and raised within the group, he may be “alienated,” too imperceptive to understand the system, or perhaps too perceptive to accept some of its built-in absurdities and anomalies.

(FULLER, p. 240)Fuller says a fully fledged analysis of this problem would exceed the scope of his paper, but he mentions how it is only because of the "intrusion of the true outsider" that we have the notion of economic trades arranged by virtue of explicit contract.
This notion will be further elaborated when Fuller speaks of the kind of interaction that takes place between friendly strangers.

> t would, of course, be impossible to undertake here any adequate analysis of the problems suggested. A guess may be hazarded, though, that it is to the intrusion of the true outsider“the stranger” in Simmel’s famous essay*—that we owe, not only the invention of economic trade, but the more general discovery that itis possible for men to arrange their relations with one another by explicit contract.

(FULLER, p. 240-2421)Fuller then considers the objection according to which an account of customary law centred around the notion of stabilizing interactional expectancies would be at the same time overinclusive and underinclusive, since it would fit very well rules of etiquette, for instance, while not fully fitting many rules of law which are taken to be customary.

> Now for the difficulties produced by the noun in the expression customary law. If we speak of a system of stabilized interactional expectancies as a more adequate way of describing what the treatises call customary law, we encounter the embarrassment that many of these expectancies relate to matters that seem remote from anything like a legal context. For example, rules of etiquette fully meet the suggested definition, yet one would scarcely be inclined to call rules of this sort rules of law.

(FULLER, p. 241)Fuller mentions how Hoebel tried to deal with this problem by defending that a given customary rule in a primitive society was a customary rule of law if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group socially recognized as having the privilege of doing so.

> mong those who take the question seriously the answer proposed by Hoebel has perhaps attracted the most attention; it will repay us to consider it for a moment. Hoebel suggests that in dealing with stateless or primitive societies “law may be defined in these terms: A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting.”

(FULLER, p. 241)Fuller thinks that are several difficulties with this solution, among them the following: It defines law by an imperfection, i.e., a customary rule is legal iff there is the threat of sanction in the case of its violation.

This would define law by an imperfection because it both holds that (i) the function of (customary) law is to "produce an ordered relationship among the members of a society" and that (ii) if the law serves its function _too_ well, to the point that there is never any occasion to resort even to the _threat_ of force, then it fails to be law.

> here are, I suggest, a number of difficulties with this solution. First, it seems to define “law” by an imperfection. If the function of law is to produce an ordered relationship among the members of a society, what shall we say of a system that works so smoothly that there is never any occasion to resort to force or the threat of force to effectuate its norms? Does its very success forfeit for such a system the right to be called by the prestigious name of “law”?

(FULLER, p. 242)Fuller thinks that another and more basic problem in Hoebel's solution is that it ignores the _systematic_ quality of primitive or customary law.

It reduces its law to a set of rules of "do's and don'ts" and ignores how it also sets a "program for living together".

> Perhaps the basic objection to Hoebel’s proposal is that it ignores the systematic quality of primitive law. The law of the tribe or extended family is not simply a chart of do’s and don’ts; it is a program for living together. Some parts of the program may achieve articulation as distinct norms imposing specially defined sanctions. But the basic logic of customary law will continue to inhere in the system as a whole.

(FULLER, p. 242-243)Fuller also comments how, in primitive societies, just like in vehicular traffic, there is a system of "interlocking roles".

To put it another way, primitive society is coordinated by the attribution of different roles to different persons and by standards which guide conduct in the cases where someone steps out of his role.

A central standard which guides conduct in these situations is reasonableness, Fuller claims.

> Primitive society, like vehicular traffic, is run by a system of interlocking roles. When one man steps out of his role, or a situation arises in which a familiar role forfeits some or all of its meaning, then adjustments will have to be made. There can be no formula to guide these adjustments beyond that of reasonableness—exercised in the light of the demands of the system as a whole

### II. The Interactional Foundations of Contract Law
(FULLER, p. 244)Fuller then proceeds to analyse the interactional foundations of contract law. The reason for this is that customary and contract law share a consensual element, such that elucidating one helps understanding the other.

> The brief account of contract law that follows has been included here primarily for the light it may shed on customary law, which is often and properly said to contain a consensual element. In this shared aspect contract law and customary law are indeed near-cousins, and a study of either will help to understand the other.

(FULLER, p. 244)Fuller wants to argue for the claim that contract law can also be understood as a _source of social order_ that sets "stable interactional expectancies"

> In keeping with the general objective just outlined we shall be concerned here with contract as a source of social order, as one means for establishing “stable interactional expectancies.”

(FULLER, p. 245)Fuller starts from the assumption that both contract and customary law could be understood broadly as the law that the parties themselves bring into existence by their agreement.

> If we permit ourselves to think of contract law as the “law” that the parties themselves bring into existence by their agreement, the transition from customary law to contract law becomes a very easy one indeed. The difficulty then becomes, not that of subsuming the two kinds of law under one rubric, but of knowing how to draw a clear line of division between them.

(FULLER, p. 245)Fuller mentions how one form of distinguishing customary and contract law would be by distinguishing the appropriate kinds of interactional expectancies which give rise to each kind of law.
In the case of customary law, it would be actions. In the case of contract law, it would be words. 
However, Fuller argues, this would be too simple, because interactional regularities from outside the contract also affect it in the process of its interpretation.

> We may say of course (using the jargon I have inflicted on the reader here) that in the one case the relevant interactional expectancies are created by words; in the other, by actions. But this is too simple a view of the matter. Where words are used, they have to be interpreted. When the contract falls within some general area of repetitive dealings, there will usually exist a body of standard practice in the light of which verbal ambiguities will be resolved. Here, in effect, interactional regularities in the world outside the contract are written into the contract in the process of interpretation.

(FULLER, p. 245-246)Another problem with this kind of distinction is that the interactions of the parties could also affect their agreement (e.g. the practical construction of further agreements by the parties which is demonstrated by their interactions)

> The meaning of a contract may not only be determined by the area of practice within which the contract falls, but by the interactions of the parties them-selves after entering their agreement. If the performance of a contract takes place over a period of time, the parties will often evidence by their conduct what courts sometimes call a practical construction of their agreement; this interpretation by deeds may have control over the meaning that would ordinarily be attributed to the words of the contract itself.

(FULLER, p. 246)Fuller highlights that just like the words of a contract have to be interpreted in light of their "interactional context", the set of actions that bring customary law into existence sometimes have to be interpreted _as if_ they were words.

> If the words of a contract have to be interpreted in their interactional context, or in the light of the actions taken under them by the parties, the actions that bring customary law into existence also have to be interpreted sometimes almost as if they were words. This problem of interpretation is at once the most crucial and most neglected problem of customary law; intrinsically difficult, it is made more so by inept theories about the nature of customary law, such as those explaining it as an expression of “the force of habit” that “prevails in the early history of the race.”

(FULLER, p. 246-247)Fuller mentions the doctrine of _opinio necessitatis_, i.e. the idea that customary law when and only when a given set of actions is motivated by a sense of obligation.

> Into this vacuum there is projected at least one articulate attempt at formulating a test. This is found in the doctrine of opinio necessitatis. According to this principle (which still enjoys some esteem in international law) customary law arises out of repetitive actions when and only when such actions are motivated by a sense of obligation, in other words, when people behave as they do, not because they want to, or because they act unreflectively, but because they believe they have to act as they do.

(FULLER, p. 247)Fuller thinks the doctrine of _opinio necessitatis_ is inadequate to account for customary law, since it becomes tautological in the case of established customary law and defective in accounting for customary law in the process of being born.
I am not sure whether this is a good objection. Probably not.

> his seems a curiously inept solution. In clear cases of established customary law, it becomes a tautology; in situations where customary law is in the process of being born, it defaults.

(FULLER, p. 247)Fuller's account of the process through which customary law comes into existence draws from the American Law Institute's Restatement of Contracts and argues that an obligation of customary law arises when
1. A acts in a way so as to reasonably give B to understand that A will act similarly in similar situations
2. B has in substantial ways prudently adjusted his affairs to the expectation that A will act in accordance with his expectations, so that A can be said to have an obligation towards B;
3. This pattern of interaction between A and B spreads through the relevant community.

Fuller adds how this rule of customary law will normally become part of a large system or a "complex network of reciprocal expectations".

Notice how, for Fuller, those kinds of  obligations arising of social interactions are a consequence of some notion of reciprocity between a given social group. This point is also highlighted in chapter 1 of The Morality of Law.

> One might suggest that a better approach could be found in the principle contained in Section 90 of the American Law Institute’s Restatement of Contracts. As formulated to fit the problem at hand this principle would run along these (unfortunately somewhat complex) lines: Where by his actions toward B, A has (whatever his actual intentions may have been) given B reasonably to understand that he (A) will in the future in similar situations act in a similar manner, and B has, in some substantial way, prudently adjusted his affairs to the expectation that A will in the future act in accordance with this expectation, then A is bound to follow the pattern set by his past actions toward B. This creates an obligation by A to B. If the pattern of interaction followed by A and B then spreads through the relevant community, a rule of general customary law will have been created. This rule will normally become part of a larger system, which will involve a complex network of reciprocal expectations.

(FULLER, p. 247)Fuller argues that the distinction between customary and contract law based in the range of its application (customary law applies to the whole relevant group whereas contract law applies only to the parties which agreed to it) does not hold entirely.

For instance, something which could be called "two-party customary law" could (and does, according to Fuller) exist, even though we hesitate to employ the word _law_ in this sense.
Sort of a controversial point for me, examine later.

> The familiar phenomenon of the spread of customary law from one social context to another suggests a further distinction between customary law and contract law that deserves critical examination here. It may be said that a contract binds only the parties to it, while customary law normally extends its rules over a large and at times somewhat unclearly defined community. The first observation is that while this spread of customary law is a common occurrence it is by no means inevitable. Something that can be called twoparty customary law can and does exist; it is, again, only linguistic prejudice that makes us hesitant about this employment of the word law.

(FULLER, p. 248)Fuller highlights how the adoption of a given pattern of interaction between A and B by C and D may take place not necessarily because of its special aptness for their case, but because it is a manner of interaction in which the _meaning_ of an action will be recognized by its addressee.

> enerally we may say that where A and B have become familiar with a practice obtaining between C and D, A is likely to adopt this pattern in his actions toward B, not simply or necessarily because it has any special aptness for their situation, but because he knows B will understand the meaning of his behavior and will know how to react to it.

(FULLER, p. 248)The idea that a contract binds only those who made it is also rejected by Fuller as a too formal idea which ignores how many contracts nowadays are unilateral in their formulation and representation of interests.

> As for the proposition that a contract binds only those who made it, who actively and knowingly assented to its terms, a mere glance at modern contracting practice is sufficient to reveal how unreal and purely formal this proposition can become. Only a tiny fraction of the “contracts” signed today are actually negotiated or represent anything like an explicit accommodation of the parties’ respective interests. Even contracts drafted by lawyers, and in theory specially fitted to the parties’ situation, are apt to be full of traditional or standard clauses borrowed from other contracts and from general practice.

(FULLER, p. 248-249)Another distinction considered by Fuller between contract and customary law is their different processes through which they come into existence: contract law arises out of stipulation by parties, whereas customary law arises out of persisting usage.

> There remains for discussion one further distinction that can be made between contract law and customary law. This lies in the notion that a contract comes into effect at once, or when the parties stipulate it shall, while custom becomes law only through a usage observed to have persisted over a considerable period.

(FULLER, p. 249)Fuller argues that this distinction too does not hold, as there are instances of customary law (e.g. in international law) which could happen suddenly.

> This is, again, too simple a view of the matter. The notion that customary law comes into effect gradually and only over a considerable period of time comes about, in part because of mistaken implications read into the word customary, and in part because it is true that normally it takes some time for reciprocal interactional expectancies to “jell.” But there are circumstances in which customary law (or a phenomenon for which we have no other name) can develop almost overnight. As an authority in international law has observed, “A new rule of customary international law based on the practice of States can emerge very quickly, and even almost suddenly, if new circumstances have arisen which imperatively call for regulation—though the timefactor is never wholly irrelevant.”

(FULLER, p. 249-250)The second problem with this distinction is that there are two different moments in which contract law binds parties: the first is marked by its celebration, the second by the different kinds of possible actions that follow by the parties and which could have legal effects. For instance, the failure from one of the parties in honoring his part of the contract can lead to the right of legal redress by the other party.
I am not sure whether this is a good objection by Fuller.

> The second early legal manifestation of the contract principle involves the situation of the half-completed exchange. A delivers fish to B in return for B’s promise of a basket of vegetables. B keeps the fish but refuses to deliver the vegetables. Plainly there is nothing mysterious about the fact that in this situation legal redress became available at an early period in history. It should be noted, however, that the obligation enforced rests not on mere words, but primarily on the action (and inaction) that followed the words.

### III. The Interactional Foundations of Enacted Law
(FULLER, p. 251)Fuller then proceeds on analyzing whether enacted law too could be seen as serving the purpose of ordering and facilitating the interactions of citizens.

> Can we regard enacted law itself as dependent on the development of “stable interactional expectancies” between lawgiver and subject? Does enacted law also serve the purpose of ordering and facilitating the interactions of citizens with one another?

(FULLER, p. 251)Fuller points out that normally the prevalent picture of enacted law is one where it is an instrument of social control that arises out of necessity due to men's defective moral nature.
Under this picture, law is an exercise of authority which does not necessarily come into existence by virtue of an "interplay of reciprocal expectancies"

> It cannot be said that there are no traces of ideas like these in the literature. What can be said is that it requires some diligence to find them. As for the general purpose of enacted law, the standard formula—in both jurisprudence and sociology—is to the effect that law serves as an instrument of social control. Sometimes this conception is coupled with the notion that the necessity for law arises entirely from man’s defective moral nature; if men could be counted on to act morally, law would be unnecessary. As for the way law is conceived to come into existence, it is by an exercise of authority and not from anything like an interplay of reciprocal expectancies. The law does not invite the citizen to interact with it; it acts upon him.

(FULLER, p. 251)Fuller argues for the rejection of this image of law by point out how many central areas of law such as contract, agency, marriage, divorce, property and rules of court procedure cannot simply be reduced to act against human's defective moral nature, but rather primarily serve the purpose of setting the "terms of mens's relation with one another", i.e., organizing and facilitating human interaction.
As Fuller adds, it doesn't seem correct to claim that _if_ humans' moral nature was not defective that it would follow that those legal rules would have no purpose. It would be, for Fuller, like claiming that language would be unnecessary if men were intelligent enough to communicate without it.

As Fuller highlights, the law does set constraints and enables provisions, but it also does _more_: it also has a _facilitative function_.
Notice how this seems to suggest some proximity between Fuller's account of the law and Raz's claim that coerciveness is not a necessary property of the law backed by the Society of Angel's thought experiment.

> Let us test the question whether enacted law serves to put in order and facilitate human interaction by inquiring how this conception applies to some actual branches of the law. First, consider the law embraced under the following headings: contract, agency, marriage and divorce, property (both private and public), and the rules of court procedure. All of these vital branches of the law serve primarily to set the terms of men’s relations with one another; they facilitate human interaction as traffic is facilitated by the laying out of roads and the installation of direction signs. To say that these branches of law would be unnecessary if men were more disposed to act morally is like saying that language could be dispensed with if only men were intelligent enough to communicate without it. The fact that the branches of law just listed include restraints as well as enabling provisions detracts in no sense from their facilitative quality; there is no more paradox here than there is in the proposition that highway traffic can be expedited by signs that read, No Left Turn, or Stop, Then Enter.

(FULLER, p. 251)A possible objection against Fuller's account of enacted law is that rules of criminal law hardly seem have this _facilitative_ quality.

They seem to prohibit X because it is wrong, not because it can "detract from the potential richness of man's relations with his fellows".
Notice also how Fuller seems to understand this idea of this facilitative function of the law as something which optimizes the conditions for the pursuit of a life _worthy of someone's capabilities_, as he seems to suggest in the first chapter of The Morality of Law. That is, there is a relation between law's function of organizing and facilitating human interaction and the morality of aspiration, it seems.

> An interactional theory of law can hardly claim acceptance, however, simply because it seems apt when applied to certain branches of the law, such as contracts, property, agency, and marital rights. The law of crimes, for example, presents a quite different test, for here an interactional view encounters an environment much less congenial to its premises. There would, for example, be something ludicrous about explaining the rule against murder as being intended to facilitate human interaction by removing from men’s confrontations the fear that they may kill one another. Murder, we are likely to say, is prohibited because it is wrong, not because the threat of it can detract from the potential richness of man’s relations with his fellows.

(FULLER, p. 252)Fuller thinks that this objection ignores how rules of criminal law were created precisely to limit the ways in which people would interact with each other in situations such as "A kills member of a family B". A rule of criminal law would ensue, for instance, that family revenges would follow some kind of standard.

> Students of primitive society have seen the very inception of the concept of law itself in limitations on the blood feud. A member of family A kills a member of family B. In a primitive society the natural response to this act is for the members of family B to seek revenge against family A. If no limits are set to this revenge, there may ensue a war to the death between the two families.

(FULLER, p. 252)Fuller claims that his interactional element of rules of criminal law have been ignored due to legal and moral progress, which pushed this element to the periphery of criminal law's function.
Fuller also seems to draw a relation of constrast between deontic rules such as "You ought to φ" and norms or conventions which serve the purpose of facilitating human interaction.

> Today the law against murder appears on the surface to have become entirely divorced from its interactional origins; it is seen as projecting its imperative, “thou shalt not kill,” over the members of society generally and without regard to their interrelations. But what has in fact happened is that interactional issues that were once central have, as the result of legal and moral progress, been pushed to the periphery, where they remain as lively as ever.

(FULLER, p. 252)Fuller highlights that he is _not_ advancing the thesis that law _always_ serves the purpose of ordering and facilitating human interaction.
For instance, criminal laws relating to "crimes without victims", according to Fuller, can hardly fit this picture (criminalization of drug use, homossexuality, prostition, gambling, etc.).

> I trust it is clear that I am not advancing here the thesis that law, in its actual formulation and administration, always serves exclusively the purpose of ordering and facilitating human interaction. There are, certainly, some manifestations of law which cannot readily be forced into this frame of thought. Perhaps the most significant of these lies in that portion of the criminal law relating to what have been called “crimes without victims.” Included here are laws forbidding the sale of intoxicants and contraceptive devices, the use of marijuana, homosexual practices, prostitution, and gambling.

(FULLER, p. 253)Fuller suggests that it is not really a coincidence that it is in the area of rules of criminal law of crimes without victims that law has been most often an instrument of moral failure.

> It is no accident, I think, that it is in this area—the area precisely where legal restraint appears most unequivocally as an “instrument of social control”—that the grossest failures of law have everywhere occurred. It is an area characterized by corruption, selective and sporadic enforcement, blackmail, and the open tolerance of illegality. There is no need to argue here that this body of law requires critical reexamination. The problem is to know by what guiding principle to direct that reexamination.

(FULLER, p. 253)A common assumption is that law fails in the area of crimes without victims because one cannot enforce morality by law.

But Fuller thinks this is mistaken, as legal rules prescribing that one keep one's promises may be successful in making people keep their promises and strengthen the moral sense of obligation.

> We should begin by asking ourselves why the law fails so notably in this general area of crimes without victims. The usual answer is that you cannot enforce morality by law. But this is not so. Keeping promises may be a moral obligation, yet the law can and does successfully force people to keep their promises. Not only that, but the legal enforcement of promises, far from weakening the moral sense of obligation, tends to strengthen it.

(FULLER, p. 253)Fuller thinks that the cliché that one cannot enforce morality by law does not hold precisely in the cases where law's function is to "reinforce interactional expectancies and facilitate a respect for them"

> here are areas of human concern, then, where the cliché that you can’t make men act morally by law does not hold. These are, I believe, precisely the areas where the law’s sanctions reinforce interactional expectancies and facilitate a respect for them.

(FULLER, p. 253)Fuller draws from the distinction between wrongs and sins in primitive systems --- where a wrong is "an act that inflicts a palpable damage on the fabric of social relations" and a sin is something which produces a "more diffuse harm by spreading a kind of corruption" --- to argue that we should probably leave modern sins alone.

> In dealing with primitive systems a distinction is sometimes taken between wrongs and sins.'5 A wrong is an act that inflicts a palpable damage on the fabric of social relations; a sin is thought to work a more diffuse harm by spreading a kind of corruption. Typically in primitive societies wrongs and sins are dealt with by different standards and different procedures, formalized “due process” being not uncommonly relaxed in the case of sins. While | would not recommend a resort to sorcery or ostracism as a way of dealing with modern sins, I think we might profitably borrow from primitive society some of the wisdom displayed in the basic distinction between wrongs and sins. Perhaps we might also add to that wisdom the insight that the best way for the law to deal with at least some modern sins is to leave them alone.

(FULLER, p. 253-254)Fuller then wants to argue for the thesis that the existence of enacted law depends on the development of _stable interactional expectancies_ between the lawgiver and the subject of law --- call it the Interactional Foundations of Enacted Law Thesis (IFEL)

> It is time now to turn to what may seem the more basic question: Does enacted law itself depend for its existence on the development of “stable interactional expectancies” between lawgiver and subject?

(FULLER, p. 254)Fuller's strategy to argue for IFEL is to first reject the thesis that law is essentially an exercise of authority

> To answer this question in the affirmative, as I shall here, is to run counter to an assumption now generally accepted in jurisprudence and sociology, the assumption, namely, that the essential characteristic of law lies simply in the fact that it is an exercise of authority.

(FULLER, p. 254)Fuller starts by first considering how we can distinguish between legal authority and managerial authority with help of the notion of the generality of its directives.
The problem with this idea, he argues, is that a managerial direction could very well proceed by general rules alone

> n ancient answer to this question—rather lost from view in contemporary discussions—is that the basic characteristic of law lies in its generality. Law lays down general rules. Managerial direction may proceed by specific orders: “Here, do this,” “A, change places with B,” or “Report tomorrow at eightthirty.” The difficulty here is that managerial direction also often proceeds by general rules or standing orders.

(FULLER, p. 254)If we want to grasp the difference between a managerial direction and law, we have to understand the _reason_ why law must take the form of general rules, i.e., because law does not simply tell what someone must do in order to accomplish a given task or realize a particular end. Rather, it lays down _baselines against which to organize his life_.

> o perceive the distinction between the office of boss and that of lawgiver we have to go behind the quality of generality and ask why it has been thought that law must take the form of general rules. The answer is a relatively simple one: The law does not tell a man what he should do to accomplish specific ends set by the lawgiver; it furnishes him with baselines against which to organize his life with his fellows.

(FULLER, p. 254)Another way to put this idea is to say that law provides a framework for the citizen within which to live his life.

This is not to say, as Fuller highlights, that the framework cannot be too loose or too constrictive, to the point that the managerial directives would be better.
One could maybe question whether (i) this framework could fail to be a morally acceptable framework and still be law or (ii) be morally unjustified and not even purport to be a morally acceptable framework and still be law.

> Law provides a framework for the citizen within which to live his own life, though, to be sure, there are circumstances under which that framework can seem so uncomfortably lax or so perversely constrictive that its human object may believe that straightforward managerial direction would be preferable.

(FULLER, p. 254)If we accept IFEL as true, as Fuller thinks we should, then we ought to accept the following (I guess):

1.(IFEL) The central purpose of the law is to establish baselines for human interaction

2. (Lawgiver-Subject Reciprocity Thesis) In order for law to adequately serve the purpose of establishing baselines for human interaction, there has to be interactional expectancies between lawgiver and subject in the following manner: (i) the lawgiver must be able to anticipate how citizens will interact with the law and (ii) citizens must be able to anticipate how the government will abide by its own declared rules 
3. A failure in either (i) or two (ii) would result in law's failure in functioning as a framework for human interaction.

4. IFEL can only be true if the Lawgiver-Subject Reciprocity Thesis is true.
5. The Lawgiver-Subject Reciprocity Thesis is true.

I think that the flaw in Fuller's reasoning is not acknowledging (or denying) that a legal system can fail to live to its purpose and still be a legal system.

> If we accept the view that the central purpose of law is to furnish baselines for human interaction, it then becomes apparent why the existence of enacted law as an effectively functioning system depends upon the establishment of stable interactional expectancies between lawgiver and subject. On the one hand, the lawgiver must be able to anticipate that the citizenry as a whole will accept as law and generally observe the body of rules he has promulgated. On the other hand, the legal subject must be able to anticipate that government will itself abide by its own declared rules when it comes to judge his actions, as in deciding, for example, whether he has committed a crime or claims property under a valid deed. A gross failure in the realization of either of these anticipations—of government toward citizen and of citizen toward government—can have the result that the most carefully drafted code will fail to become a functioning system of law.

(FULLER, p. 255)Fuller claims that many books which discuss the generality of legal rules fail to recognize that the enactment of general rules becomes meaningless if government considers itself free to disregard those very rules.
My impression is that this is just plain wrong by Fuller. The fact that this is a possibility shows something interesting about the nature of legality.

> It is a curious fact of history that although the older books are full of discussions of the principle that law implies general rules, there is almost no explicit recognition that the enactment of general rules becomes meaningless if government considers itself free to disregard them whenever it suits its convenience

(FULLER, p. 255)Fuller claims that the fact that citizens commonly have faith that government respects and subjects itself to the law it makes partly explains the importance of it and the potential for such an offense to undermine the moral foundations of a legal order.

> ertainly there is no intention here to suggest that the ordinary citizen should go about with a code book in his hand ascertaining whether government is conforming to its own rules. Normally, and by and large, the citizen must of necessity accept on faith that his government is playing the game of law fairly. But precisely because this faith plays so important a role in the functioning of a legal system, a single dramatic disappointment of it, or a less conspicuous but persistent disregard of legality over a whole branch of law, can undermine the moral foundations of a legal order, both for those subject to it and for those who administer it.

(FULLER, p. 256)When we recognize these complexities about the law, the picture of law as an exercise in authority becomes difficult to maintain.

> When these complexities are taken into account the task of creating and administering a legal system will be seen as a very different kind of enterprise than is suggested when it is described simply as an exercise of authority for the purpose of effecting social control.

(FULLER, p. 256)There is a relation between the ordering and facilitating quality of the law and the need for not regulating every matter in advance.

> If we view law as serving the purpose of putting in order and facilitating human interaction, it is apparent that the making of law involves the risk that we may be unable to foresee in advance the variety of interactional situations that may fall within the ambit of a preformulated rule.

(FULLER, p. 257)The virtue of common law, for Fuller, lies in its capacity to regulate social and legal matters as they appear concretely.

> he virtue of the common law is that, proceeding case by case, it can fit and refit its prescriptions to the configurations of life as they reveal themselves in litigation. What the common law lacks in the way of clear advance formulation, it may more than make up for by its capacity to reshape and reword its rules in the light of the actual situations that offer themselves for decision.

### IV. Interactions Between Law and Its Social Context
(FULLER, p. 257)After arguing for the thesis that there is a relation of reciprocal influence between social environment and law, Fuller wants to argue that different forms of law can be more appropriate than other forms upon different social contexts

> Implicit in all that has gone before in this discussion is the view that law and its social environment stand in a relation of reciprocal influence; any given form of law will not only act upon, but be influenced and shaped by, the established forms of interaction that constitute its social milieu. This means that for a given social context one form of law may be more appropriate than another, and that the attempt to force a form of law upon a social environment uncongenial to it may miscarry with damaging results.

(FULLER, p. 257)Fuller draws a spectrum of human relationships that starts at intimate and ends at hostile relationships. Between those two poles there is the social interaction of "friendly strangers".

> For present purposes I shall employ simply the notion of a spectrum or scale of relationships, running from intimacy, at the one end, to hostility, at the other, with a stopping place midway that can be described as the habitat of friendly strangers, between whom interactional expectancies remain largely open and unpatterned.

(FULLER, p. 258)Intimate relationships would have difficulties in regulating their interactions by means of contracts, because (i) it would be difficult for people united by affection to negotiate with one another and (ii) because the unpredictable contingencies of intimate social arrangements makes contract an inadequate mean of regulating interactions.

> If we start with the “intimate” end of the scale, it is apparent that contract is an instrument ill-suited to ordering the relations within a functioning family. We are apt to put this in affective terms, saying that people united by affection would have difficulty in negotiating with one another and that any attempt to do so might disturb the harmony of the home. But the problem also has what may be called an operational aspect; the allocation of household responsibilities is affected by shifting and unpredictable contingencies: someone becomes ill, one of the children falls behind in his schoolwork, father has to be away on a trip, etc. No degree of contractual foresight would be equal to dealing in advance with all these permutations in the internal affairs of the family.

(FULLER, p. 258-259)Contracts are often also a bad means of regulating and facilitating interactions between parties which stand in a social relation of hostility, because (i) contracts require a certain amount of trust between the parties and (ii) that each of the parties also disclose up to a degree what each's intentions are, which is a difficult endeavour for a relation marked by hostility.

> If we move to the opposite end of the spectrum and consider contracts between parties standing in what I have called a social relation of hostility, a contractual regulation becomes, once again, not only difficult to negotiate, but also often an inept device for achieving the end sought. The simple way of explaining this is to say that hostile parties don’t trust one another, and mutual trust is essential for both the negotiation and the administration of a contract. But the problem, once again, has what may be called an operational aspect. The negotiation of a contract of any complexity will involve an intricate fitting together of diverse interests. This, in turn, means that in the course of negotiations—in the stand he takes for or against some demanded concession—each party is compelled to make some disclosure of the internal posture of his own interests.

(FULLER, p. 259)Fuller argues that contract law is most effective between friendly strangers (it is also the area of human interaction for which contracts were first conceived, he says)

> I should like now to turn to the middle ground of the spectrum of social contexts, the area I have previously described as the habitat of friendly strangers, between whom interactional expectancies remain largely open and unpatterned. This is precisely the area where contractual law is most at home and most effective; it is also here, without much doubt, that the very notion of explicit contracting was first conceived.

(FULLER, p. 259-260)Fuller highlights how, weird as it sounds, that we can be more open so as to negotiate and further our interests --- in a manner that is often not possible within an intimate group like the family

> We are prone to suppose that as we move away from relations of intimacy our freedom of expression and action becomes progressively restricted; with strangers we are ill at ease; it is only with close friends that we are free to say what we think and declare what we would like to have. But in fact, in dealing with intimates we are, often quite without knowing it, restrained by a host of unarticulated expectations—compelled, as it were, to act out roles tacitly assigned to us in previous encounters. As Simmel points out, it is often precisely the stranger who receives “the most surprising openness—confidences which would be carefully withheld from a more closely related person.” It is this openness of the relations between strangers that facilitates negotiation in a manner that would be impossible (and probably inadvisable) within an intimate group like the family.

(FULLER, p. 261)Fuller's first observation regarding the aptness of customary law is that it runs across all the spectrum of intimacy-hostility.

In the case of intimate social groups, reciprocal expectations often arise and people organize their lives based on them.

On a _formal level_, Fuller thinks we could call those reciprocal expectations customary law. I think we have little reason to do so and that this would not fit our practice and thus be an overinclusive notion of customary law.

> Turning now to customary law, the first observation is that this form of law is at home completely across the spectrum of social contexts, from the most intimate to those of open hostility. That the family cannot easily organize itself by a process of explicit bargaining does not mean there will not grow up within it reciprocal expectancies of the sort that, on a more formal level, would be called customary law.

(FULLER, p. 261)The most active development of customary law lies in the first of commercial dealings, which is most typically the milieu of friendly strangers

> At the midrange, it should be observed that the most active and conspicuous development of customary law in modern times lies precisely in the field of commercial dealings.

(FULLER, p. 261)Customary law is also seem prominently between persons in a hostile social relationship. This is the case of nations or groups in war, for instance, where half-bargains are done through deeds.

> Finally, while enemies may have difficulty in bargaining with words, they can, and often do, profitably half-bargain with deeds. Paradoxically the tacit restraints of customary law between enemies are more likely to develop during active warfare than during a hostile stalemate of relations; fighting one another is itself in this sense a social relation since it involves communication.

(FULLER, p. 261)That customary law is seen across the whole spectrum does not mean that it is seen with the same properties or quality. Much to the contrary, according to Fuller.

> That customary law is, as I have expressed it, at home across the entire spectrum of social contexts does not mean that it retains the same qualities wherever it appears. On the contrary, it can change drastically in nature as it moves from one end of the spectrum to the other.

(FULLER, p. 261)At the most intimate level, customary law has to do with roles and functions, allocation of authority and relationships of trust

> t the terminal point of intimacy customary law has to do, not primarily with prescribed acts and performances, but with roles and functions. The internal operations of a family, kinship group, or even tribe, may demand, not simply formal compliance with rules, but an allocation of authority, and a sense of trusteeship on the part of those who make decisions and give directions.

(FULLER, p. 261)In the middle area of friendly strangers, customary law often takes the form of commercial dealings and focuses more on the consequences to exterior conduct rather than on internal qualities or persons.

> In the middle area, typified by arm’s length commercial dealings, customary law abstracts from qualities and dispositions of the person and concentrates its attention on ascribing appropriate and clearly defined consequences to outward conduct.

(FULLER, p. 261-262)In the area of hostile relations customary law takes a limited and negative form, being instantiated rather through symbolism and ritual (for instance, declarations of war)

> Finally, as we enter the area of hostile relations, a decided change in the general flavor of customary law takes place. Here the prime desideratum is to achieve—through acts, of course, not words—the clear communication of messages of a rather limited and negative import; accordingly there is a heavy concentration on symbolism and ritual.

(FULLER, p. 263)Fuller argues that what is constant among different systems of customary law is the interactional processes through which those systems come into being

> I would suggest generally that if we seek to discover constancies among the different systems of customary law we shall find them in the interactional processes by which those systems come into being, rather than in the specific product that emerges, which must of necessity reflect history and context. I would suggest further that if we look closely among the varying social contexts presented by our own society we shall find analogues of almost every phenomenon thought to characterize primitive law.

(FULLER, p. 263)The area where enacted law is most at home according to Fuller, just like contract law, is the middle area of the spectrum, that is, that of the friendly strangers.

> At the outset it is apparent, I think, that the “home ground” of enacted law coincides largely with what we have already found most congenial to the organizing principle of contract, that is, with the middle area on the spectrum of social contexts—the region populated by friendly strangers, whose relations with one another generally stand open in the sense of not being prestructured by bonds of kinship or the repulsions of a shared hostility.

(FULLER, p. 263)Contract and enacted law both share an ineptitude in regulating relations of intimacy, like the one of a family.

Just like a contract would be "too blunt an instrument" to shape the affairs of a family, Fuller argues, the same could be said about state-made regulations.
One could maybe object about this regarding some aspects: enacted law seems to effectively regulate _some_ aspects of intimate relations, such as in the case of number of children or the admissibility of physical punishment.

> If enacted law and contractual law are alike in finding especially congenial the midpoint on the spectrum of social contexts, they also share an ineptitude for attempting anything like an internal regulation of the family. If a contract of the parties themselves is too blunt an instrument for shaping the affairs of a family, the same thing could be said with added emphasis if any attempt were made to impose detailed state-made regulations on the intimate relations of marriage and parenthood.”8

(FULLER, p. 263-264)Fuller thinks that what explains the aptitude of customary law in regulating relations of intimacy lies in the fact that customary law does not limit itself to deontic rules, that is, rules of the form "One ought to φ" (although Fuller doesn't employ this terminology).

Rather, customary law also (i) attributes roles and functions and (ii) "hold those discharging those roles and functions to an accounting of their performance". 

Fuller does not seem to develop much on (ii), but I think it has to do with general principles which guide our conduct when people deviate from those roles, such as the case of the principle of reasonableness.
This seems also to relate somewhat with Fuller's distinction between a morality of duty and a morality of aspiration (Cf. The Morality of Law)

> Yet, as I have observed here, much of customary law serves—and often serves well—the function of putting in order the relations of kinsmen. What is the explanation for this special quality of the customary law of family affairs? I think it is to be found in the fact that customary law does not limit itself to requiring or prohibiting precisely defined acts, but may also designate roles and functions, and then, when the occasion arises, hold those discharging these roles and functions to an accounting for their performances.

(FULLER, p. 264)Fuller highlights that this account of customary law's function does not contradict the Interactional Nature of Customary Law Thesis, because stable interacional expectancies can arise both with reference to acts and roles and functions.

> This conception does not conflict with the analysis of customary law presented at the beginning of this essay. Stable interactional expectancies can arise with reference to roles and functions as well as to specific acts; a language of interaction will contain not only a vocabulary of deeds but also a basic grammar that will organize deeds into meaningful patterns.

(FULLER, p. 264)Fuller thinks that the very qualities that make enacted law inept to regulate intimate relations are the ones which make it an adequate instrument to regulate impersonal relations, namely, the fact that enacted law imposes rules that (i) serve as limits to people's actions in their pursuit of their own goals and (ii) measure a man's acts against the law and not "the man himself against some ideal behind the law's prescriptions".

I think Fuller overemphasizes this relationship between enacted law and the morality of duty here. Enated law most commonly has to do with the kinds of impersonal, deontic rules which he mentions, but is also has to do with rules which prescribe officials to assess facts or conducts according to general moral principles.

> It is important to observe that the very qualities of enacted law that make it an inept instrument for regulating intimate relations are precisely those which lend to it a special capacity to put in order men’s interactions within the larger impersonal society. Within that wider context the basic necessity is to impose rules that will serve to set the limits men must observe in their interactions with one another, leaving them free within those limits to pursue their own goals. This in turn means that the law must deal with defined acts, not with dispositions of the will or attitudes of mind. The rule of law measures a man’s acts against the law, not the man himself against some ideal perceived as lying behind the.law’s prescriptions.

(FULLER, p. 264)Primitive legal systems do not distinguish the moral character of a person from the morality of his acts

> Primitive systems of law, including the common law of England in its early period, accept without qualms this commonsense view of the matter and show but little concern to preserve a distinction between the man and his act.

(FULLER, p. 264-265)Contemporary legal system often distinguish between a person's moral character and the morality of his action.

The best examples of such distinctions come from criminal law.

> ll of this has, of course, changed drastically. In a criminal trial today personal acquaintances of the defendant would normally be excluded from the jury, evidence of past misconduct is inadmissible, and it is unthinkable that a witness, however well acquainted he might be with the defendant, would be allowed to tell the jury what kind of person he considers him to be.?° The task of the jury is to determine as best it can just what act or acts the defendant committed and then to measure those acts against the prescriptions of the law.

(FULLER, p. 265)Fuller on the importance of symbolisms regarding the distinctive institutional role played by different actors for the principle of the rule of law.

> his symbolism is, however, of vital importance. If it were ever completely lost from view the principle of legality, the rule of law, would become an empty sham. The apparent contradictions within the total processes of the criminal law are tolerable because it is generally perceived, at least by those directly concerned, that distinctive institutional roles are played by those who arrest, prosecute, defend, try, sentence, parole, release, and pardon—all of these roles being directed toward the discharge of differing functions.

(FULLER, p. 266)Fuller argues that we should not see enacted and contract law as alternatives to customary law for the regulation of human conduct, but rather as supplements to each other.

> When we view the matter in this light it becomes apparent that in a complex modern society enacted law and the organizational principles implicit in customary law are not simply to be viewed as alternative ways of ordering men’s interactions, but rather as often serving to supplement each other by a kind of natural division of labor.

(FULLER, p. 266)The upshot of Fuller's argumentation is that we should tweak our image of society as a combination of indivudals' moral sense and the social control exercised by law.

Rather, our social arrangement is also constantly oriented by each individual's actions toward one another, which cannot be reduced to either some form of conventional morality, nor to enacted law.

> Much that is written today seems to assume that our larger society is enabled to function by a combination of the individual’s moral sense and social control through the threatened sanctions of state-made law. We need to remind ourselves that we constantly orient our actions toward one another by signposts that are set neither by morals, in any ordinary sense, nor by words in lawbooks.

___
FULLER, Lon L. Human Interaction and the Law. *In*: WINSTON, Kenneth I. **The Principles of Social Order**: Selected Essays of Lon L Fuller. Ed. rev. Oxford: Hart Publishing, p. 231-266, 2001.