# The Morality of Law

**Year:** 1969
**Author:** Lon L. Fuller
**Keywords:** #natural_law_theory #fuller #rule_of_law #legal_positivism #anti_positivism #virtue_ethics
**Permanent Notes:**
**Literary Notes:**

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**Summary:**

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# I. THE TWO MORALITIES
(Fuller, 1964, p. 3)The first chapter of the book is concerned with two important deficiencies in the literature concerning the relation between law and morality

> The content of these chapters has been chiefly shaped by a dissatisfaction with the existing literature concerning the relation between law and morality. This literature seems to me to be deficient in two important respects.

(Fuller, 1964, p. 4)Law is constantly distinguished from morality without there being much work on the part of legal theorists in clarifying what morality is

> compared with morality, it seems to be assumed that everyone knows what the second term of the comparison embraces. Thomas Reed Powell used to say that if you can think about something that is related to something else without thinking about the thing to which it is related, then you have the legal mind. In the present case, it has seemed to me, the legal mind generally exhausts itself in thinking about law and is content to leave unexamined the thing to which law is being related and from which it is being distinguished.

(Fuller, 1964, p. 4)The first chapter of the book introduces the thesis that a failure to distinguish between a morality of aspiration and a morality of duty has been the cause of much obscurity in the discussion about the relation between law and morals.

> n my first chapter an effort is made to redress this balance. This is done chiefly by emphasizing a distinction between what I call the morality of aspiration and the morality of duty. A failure to make this distinction has, I think, been the cause of much obscurity in discussions of the relation between law and morals.

(Fuller, 1964, p. 4)The second dissatisfaction of Fuller with the literature concerning law and morality is explained in the second chapter.

Fuller argues that a failure to acknowledge the full dimension of what he calls "the internal morality of law" has led many theorists to just dismiss it as some form of formal conception of "legal justice" (such as argued by Hart in the concept of Law, probably).

Fuller mentions that the internal morality of law has rather to do with the "directions of human effort essential to maintain any system of law". This would apply even to legal systems with evil or mistaken objectives or ends.

> he other major dissatisfaction underlying these lectures arises from a neglect of what the title of my second chapter calls, “The Morality That Makes Law Possible.” Insofar as the existing literature deals with the chief subject of this second chapter—which I call “the internal morality of law”—it is usually to dismiss it with a few remarks about “legal justice,” this conception of justice being equated with a purely formal requirement that like cases be given like treatment. There is little recognition that the problem thus adumbrated is only one aspect of a much larger problem, that of clarifying the directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be regarded as mistaken or evil.

(Fuller, 1964, p. 4)In the fourth chapter, Fuller examines whether and to which extend a form of substantive natural law may be derived from the idea of a morality of aspiration.

> he chapter closes with an examination of the extent to which something like a substantive “natural law” may be derived from the morality of aspiration.

## The Moralities of Duty and of Aspiration

(Fuller, 1964, p. 5)The distinction between a morality of duty and a morality of aspiration is not new, Fuller argues, but it is not fully acknowledged in recent discussions.

> Let me now turn without further delay to the distinction between the morality of aspiration and the morality of duty. This distinction is itself by no means new.? I believe, however, that its full implications have generally not been seen, and that in particular they have not been sufficiently developed in discussions of the relations of law and morals.

(Fuller, 1964, p. 5)The morality of aspiration is the kind of morality typically discussed in greek philosophy. It concerns an idea of virtue or the realization of one's fullest capabilities.
Fuller mentions how the ancient greeks didn't have as central the notions of right and wrong or of moral claims and duties, but rather those of proper and fitting conduct.

> he morality of aspiration is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty. But these overtones are usually muted, as they are in Plato and Aristotle. Those thinkers recognized, of course, that a man might fail to realize his fullest capabilities. As a citizen or as an official, he might be found wanting. But in such a case he was condemned for failure, not for being recreant to duty; for shortcoming, not for wrongdoing. Generally with the Greeks instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.®

(Fuller, 1964, p. 5-6)Whereas the morality of aspiration starts "from the top", the morality of duty starts "from the bottom". It is mostly concerned with standards of conduct that constitute the basic moral rules without which an ordered society is impossible.

The morality of duty is the morality of the ten commandments (thou shalt not kill).

It is concerned more with "though shalt not" rather than "thou shalt" and it does not condemn or look down upon men who failed to live up to the highest aspiring standards of human excellence.

> Where the morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark. It is the morality of the Old Testament and the Ten Commandments. It speaks in terms of “thou shalt not,” and, less frequently, of “thou shalt.” It does not condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead, it condemns them for failing to respect the basic requirements of social living.

(Fuller, 1964, p. 6)Fuller comments how Adam Smith employs an analogy between rules of grammar and the criteria of literary perfection or excellence in order to distinguish the morality of duty and the morality of aspiration.

Whereas the rules of grammar prescribe the minimum for the maintenance of language as as instrument of social communication, the principles of good writing provides us general ideas of perfection.

> In his Theory of Moral Sentiments, Adam Smith employs a figure that is useful in drawing a distinction between the two moralities I am here describing.* The morality of duty “may be compared to the rules of grammar”; the morality of aspiration “to the rules which critics lay down for the attainment of what is sublime and elegant in composition.” The rules of grammar prescribe what is requisite to preserve language as an instrument of communication, just as the rules of a morality of duty prescribe what is necessary for social living. Like the principles of a morality of aspiration, the principles of good writing, “are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions of acquiring it.”

(Fuller, 1964, p. 6)Fuller takes the example of "deep play", i.e., the idea of gambling for high stakes to explain further the distinction between the two moralities.

> It will be well at this point to take some form of human conduct and ask how the two moralities might proceed to pass judgment on it. I have chosen the example of gambling. In using this term I do not have in mind anything like a friendly game of penny ante, but gambling for high stakes—what in the translation of Bentham's The Theory of Legislation is called by the picturesque term, “deep play.”

(Fuller, 1964, p. 6-7)Fuller points out how a hupothetical moral legislator (à la Bentham) would have the responsibility of deciding whether gambling was harmful to the point that we had to consider the existence of a general moral duty to refrain from engaging in it.

> How would the morality of duty view gambling thus defined? Characteristically it would postulate a kind of hypothetical mora legislator who would be charged with the responsibility of deciding whether gambling was so harmful that we ought to consider that there is a general moral duty, incumbent on all, to refrain from engaging in it. S

(Fuller, 1964, p. 7)Suppose that the hypothetical moral legislator came to the conclusion that we had a general moral duty to refrain from gambling.

Fuller claims that, in this case, we can argue that this moral judgement would have an almost direct bearing on legislation, i.e., it would imply that we ought to have some kind of legal rule that prohibits gambling in a set of cases and under particular conditions.

> Weighing all these considerations, the moralist of duty might well come to the conclusion that men ought not to engage in gambling for high stakes, that they have a duty to shun “deep play.” How is such a moral judgment related to the question whether gambling ought to be prohibited by law? The answer is, very directly. Our hypothetical legislator of morals could shift his role to that of lawmaker without any drastic change in his methods of judgment. As a lawmaker he will face certain questions that as a moralist he could conveniently leave to casuistry.

(Fuller, 1964, p. 7-8)Fuller points out that our hypothetical moral legislator turned lawmaker would have to make some considerations related to the moral costs of legislating a negative moral duty (problems of range, problems of application, problems of selective enforcement, etc), but this does not imply that there is a sharp break between the kind of reasoning about the moral status of gambling according to the morality of duty and the question of whether we should legislate against gambling.

> As a statutory draftsman he will confront the difficulty of distin-guishing between gambling for small stakes as an innocent amusement and gambling in its more desperate and harmful forms. If no formula comes readily to hand for this purpose, he may be tempted to draft his statute so as to include every kind of gambling, leaving it to the prosecutor to distinguish the innocent from the truly harmful. Before embracing this expedient, often described euphemistically as “selective enforcement,” our moralist turned lawmaker will have to reflect on the dangerous consequences that would attend a widened application of that principle, already a pervasive part of the actual machinery of law enforcement. Many other considerations of this nature he would have to take into account in drafting and proposing his statute. But at no point would there be any sharp break with the methods he followed in deciding whether to condemn gambling as immoral.

(Fuller, 1964, p. 8)Fuller then considers how we should see gambling according to the morality of aspiration.
In this case, we wouldn't be so concerned with the specific harms that may flow from gambling, but whether it is "an activity worthy of a man's capacity".
Fuller mentions the idea of gambling as a sort of "fetishism" in which a man cultivates risk without bearing the costs and the need for responsibility that comes with it.

> Let us now view gambling as it might appear to the morality of aspiration. From this point of view we are concerned not so much with the specific harms that may flow from gambling, but with the question whether it is an activity worthy of man’s capacities. We would recognize that in human affairs risk attends all creative effort and that it is right and good that a man engaged in creative acts should not only accept the risks of his role, but rejoice in them. The gambler, on the other hand, cultivates risk for its own sake. Unable to face the broader responsibilities of the human role, he discovers a way of enjoying one of its satisfactions without accepting the burdens that usually accompany it. Gambling for high stakes becomes, in effect, a kind of fetishism. The analogy to certain deviations in the sex instinct is readily apparent and has in fact been exploited to the full in an extensive psychiatric literature on obsessive gambling.®

(Fuller, 1964, p. 8)Judging gambling according to the morality of aspiration means looking at gambling not considering whether it should be permitted or prohibited, but as something to be disdained. It would be a conduct "unbefitting a being with human capacities".

> he final judgment that the morality of aspiration might thus pass on gambling would not be an accusation, but an expression of disdain. For such a morality, gambling would not be the violation of a duty, but a form of conduct unbefitting a being with human capacities.

(Fuller, 1964, p. 9)Fuller highlights how the morality of aspiration has no direct bearing on the law.

To answer whether gambling should be legally permitted or prohibited we ought to turn to the morality of duty.

> What bearing would the judgment thus passed have on the law? The answer is that it would have no direct bearing at all. There is no way by which the law can compel a man to live up to the excellences of which he is capable. Por workable standards of judgment the law must turn to its blood cousin, the morality of duty. There, if anywhere, it will find help in deciding whether gambling ought to be legally prohibited.

(Fuller, 1964, p. 9)What the morality of aspiration loses in direct bearing on the law it gains in the pervasiveness of its implications, Fuller argues.

Fuller adds how, in one aspect, our whole legal system can be seen as setting up conditions for purposeful and creative activity and rescuing people "from the  bling play of chance".

There is a sense in which we can see law as having a moral aspiration, according to Fuller -- this relates interestingly with Dworkin's idea of law's point and with Shapiro's idea of law's moral function and with the ideology of law.

> But what the morality of aspiration loses in direct relevance for the law, it gains in the pervasiveness of its implications. In one aspect our whole legal system represents a complex of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity. When in transacting affairs with another a man pays money under a mistake of fact, the law of quasi contract compels a return. The law of contracts declares void agreements entered under a mutual misapprehension of the relevant facts. Under the law of torts a man may become active without having to answer for injuries that are the fortuitous by-product of his actions, except where he enters upon some enterprise causing foreseeable risks that may be reckoned as an actuarial cost of his undertaking and thus subjected to rational calculation in advance. In the early stages of the law, none of these principles was recognized. Their acceptance today represents the fruit of a centuries-old struggle to reduce the role of the irrational in human affairs.

(Fuller, 1964, p. 9)Fuller points out that the morality of duty cannot compel a man to live "the life of reason".

The rules of the morality of duty constitute the necessary conditions for the thriving of the morality of aspiration, but they do not sufficient conditions for the achievement of that end.

> ut there is no way open to us by which we can compel a man to live the life of reason. We can only seek to exclude from his life the grosser and more obvious manifestations of chance and irrationality. We can create the conditions essential for a rational human existence. These are the necessary, but not the sufficient condititons for the achievement of that end.

## The Moral Scale
(Fuller, 1964, p. 9-10)Fuller argues that there is a sort of moral scale where the morality of duty ends and the morality of aspiration begins

> As we consider the whole range of moral issues, we may conveniently imagine a kind of scale or yardstick which begins at the bottom with the most obvious demands of social living and extends upward to the highest reaches of human aspiration. Somewhere along this scale there is an invisible pointer that marks the dividing line where the pressure of duty leaves off and the challenge of excellence begins. The whole field of moral argument is dominated by a great undeclared war over the location of this pointer.

(Fuller, 1964, p. 10)There are those who try to pull the dividing point of the moral scale upward. In doing this, they are trying to transform standards of excellence into moral duties. This is largely what the moralist tries to do.

> There are those who struggle to push it upward; others work to pull it down. Those whom we regard as being unpleasantly—or at least, inconveniently—moralistic are forever trying to inch the pointer upward so as to expand the area of duty. Instead of inviting us to join them in realizing a pattern of life they consider worthy of human nature, they try to bludgeon us into a belief we are duty bound to embrace this pattern. All of us have probably been subjected to some variation of this technique at one time or another. Too long an exposure to it may leave in the victim a lifelong distaste for the whole notion of moral duty.

(Fuller, 1964, p. 10)Fuller considers an objection to this distinction between the two moralities. This objection draws from Plato and is based on an account that we could call the Platonic View of The Good (PVG).

According to the PVG, we cannot, nor should try to draw a line where the morality of duty ends and the morality of aspiration starts. This is so because determining our duties requires first determining what is excellence or what is perfectly good.

> I have just spoken of an imaginary pointer that marks the line dividing duty from aspiration. The task of finding the proper resting place for this pointer has, I think, been needlessly complicated by a confusion of thought that runs back at least as far as Plato. I have in mind an argument along these lines: In order to judge what is bad in human conduct, we must know what is perfectly good. Every action must be appraised in the light of its contribution to the perfect life. Without a picture of the ideal of human existence before us, we can have no standard, either for imposing duties or for opening new avenues for the expression of human capabilities. Those who accept this line of reasoning will reject as either meaningless or insoluble the problem of correctly locating the line where duty leaves off and aspiration begins. In their view it is obvious that the morality of aspiration is the foundation of all morality. Since the morality of duty must inevitably incorporate standards borrowed from the morality of aspiration, there is neither occasion nor warrant for drawing a clear line between the two moralities.

(Fuller, 1964, p. 10-11)Fuller notices how the PVG has curiously been used to reach opposite conclusions about the objectivity of moral judgements. It has been used to support that: (i) we agree on what is bad, such that we must agree on the perfectly good (since the PVG is true); (ii) we disagree on what is perfectly good, such that our agreements on what is bad must be an illusion (since the PVG is true).

> Curiously, the view that all moral judgments must rest on some conception of perfection has historically been employed to reach diametrically opposed conclusions concerning the objec-ivity of moral judgments. One side argues as follows: It is a fact of experience that we can know and agree on what is bad. It must follow that we have in the back of our minds some shared picture of what is perfectly good. The task of moral philosophy is therefore to bring to articulation something we already know and agree upon. This is the route taken by the Platonic Socrates. The opposing party reasons as follows: It is obvious that men do not agree on what is perfectly good. But since meaningful judgments as to what is bad are impossible without an agreement on what is perfectly good—an agreement that plainly does not exist —it must follow that our apparent agreement on what is bad is an illusion, born perhaps of social conditioning, habituation, and shared prejudice.

(Fuller, 1964, p. 11)The problem with the PVG is that we seem to agree that killing is bad without agreeing on the most basic moral principles or about what excellence is.

> This assumption is contradicted by the most elementary human experience. The moral injunction “thou shalt not kill” implies no picture of the perfect life. It rests on the prosaic truth that if men kill one another off no conceivable morality of aspiration can be realized. In no field of human endeavor is it true that our judgments as to what is undesirable must be secretly directed by some half-perceived utopia.

(Fuller, 1964, p. 11)As Fuller highlights, in human affairs, we know what is unsuited and what is reasonably suited for an end without knowing which artifact is perfectly suited for such end.

For instance, if someone asks for a hammer, I can know which tools will most likely not serve him.

The same is true about rules and institutions, according to Fuller. We can know what is plainly unjust without committing ourselves to saying what perfect justice is like.

> In the whole field of human purpose—including not only human actions but artifacts of every kind—we find a pervasive refutation for the notion that we cannot know what is unsuited to an end without knowing what is perfectly suited to achieve it. In selecting instruments for our purposes we can and do make out everywhere with imperfectly defined conceptions of what it is we are trying to achieve. No ordinary human tool, for example, is perfectly suited to any particular task. It is designed rather to accomplish an indefinite range of tasks reasonably well. A car-penter’s hammer serves adequately over a large but indefinite range of uses, revealing its deficiencies only when we try to use it to drive very small tacks or heavy tent stakes. If a working companion asks me for a hammer, or the nearest thing to it available to me, I know at once, without knowing precisely what operation he is undertaking, that many tools will be useless to him. I do not pass him a screwdriver or a length of rope. I can, in short, know the bad on the basis of very imperfect notions of what would be good to perfection. So I believe it is with social rules and institutions. We can, for example, know what is plainly unjust without committing ourselves to declare with finality what perfect iustice would be like.

(Fuller, 1964, p. 12) As Fuller remarks, to say that we can distinguish what is clearly injust, immoral or a duty does not mean that drawing the line in the moral scale is an easy task.
> None of the arguments just advanced is intended to imply that there is no dificulty in drawing the line that separates the morali- ty of duty from that of aspiration. Deciding where duty ought to leave off is one of the most difiicult tasks of social philosophy.

(Fuller, 1964, p. 12) This means, however, that (i) we should face the problem suggested by the existence of such a moral scale and that (ii) we know enough to set the basic conditions that constitute the core of the morality of duty.
> individual differences of opinion are inevitable. What is being argued here is that we should face the difiiculties of this problem and not run away from them under the pretext that no answer is possible until we have constructed a comprehensive morality of aspiration. We know enough to create the conditions that will permit a man to lift himself upward. It is certainly better to do

(Fuller, 1964, p. 12) Fuller considers the objection according to which this characterization is inadequate, because the morality of duty is a matter of the relation man-society, whereas the morality of aspiration concerns the relation Man-God.
> This is perhaps the point to forestall one further misunder- standing. It has been suggested that the morality of duty relates to man’s life in society, while the morality of aspiration is a matter between a man and himself, or between him and his God.“' This is true only in the sense that as we move up the ladder from obvious duty to highest aspiration individual differ- ences in capacity and understanding become increasingly im-

(Fuller, 1964, p. 13) Fuller's reply to this objection is that the morality of aspiration can concern the relation Man-God, but that it also concerns the relation Man-Society.

As Fuller reminds us, a great deal of virtue ethics presupposes that we are political animals that have to find the good life in a "life shared with others".
> portant. But this does not mean that the social bond is ever broken in that ascent. The classic statement of the morality of aspiration was that of the Greek philosophers. They took it for granted that man as a political animal had to find the good life in a life shared with others. If we were cut ofi from our social inheritance of language, thought, and art, none of us could aspire to anything much above a purely animal existence. One of the highest responsibilities of the morality of aspiration is to preserve and enrich this social inheritance.

## The Vocabulary of Morals and the Two Moralities

(Fuller, 1964, p. 13) Fuller suggests that one reason why the distinction between the morality of duty and the morality of aspiration is not fully appreciated by us may lie in our moral vocabulary.
> One reason the distinction between the morality of duty and that of aspiration does not take a firmer hold in modern thought lies, I believe, in the fact that our moral vocabulary itself straddles this distinction and obscures it. Take, for example, the term

(Fuller, 1964, p. 13) Fuller points out that we commonly speak of "value judgements" instead of value perception and that this may have to do, as well as reinforce the idea that expressions of value have to do with conclusive moral statements (such as judgements given by a judge) and with something inevitably subjective.
> “value judgment.” The concept of value is congenial to a moral-q. ity of aspiration. Had we chosen some other companion for it,: and spoken, say, of “the perception of value,” we would have hadl an expression thoroughly at home in a system of thought directed: toward the achievement of human excellence. But instead we. coupled “value” with the term “judgment,” an expression which: suggests not a striving toward perfection, but a conclusion about. obligations. Thus a subjectivism appropriate to the higher reaches: of human aspiration spreads itself through the whole language of moral discourse and we are easily led to the absurd conclusion: that obligations obviously essential for social living rest on some essentially ineffable preference. f

(Fuller, 1964, p. 13) Fuller reminds us that knowledge of facts alone do not imply knowledge of a moral duty.
> The much debated question of the relation between fact and value would, I believe, be clarified if the disputants took pains to keep in mind the distinction between the moralities of duty and of aspiration. When we are passing a judgment of moral duty, it seems absurd to say that such a duty can in some way flow directly from lmowledge of a situation of fact. We may understand the facts from top to bottom, and yet there will still seem to intervene an act of legislative judgment before we conclude that a duty

(Fuller, 1964, p. 14) The same is not true regarding the morality of aspiration, Fuller argues. Knowledge of facts imply knowledge about aspiration or about excellence.

This is an aspect where the morality of aspiration is similar to aesthetics, Fuller says, in that interpretation about art requires knowledge of the purpose of the work of art.
> It is quite otherwise with the morality of aspiration, which in this respect shows its close affinity with aesthetics. When we seek to comprehend some new form of artistic expression, our effort— if it is well informed—will direct itself at once to the purpose pursued by the artist. We ask ourselves, “What is he trying to do? What does he seek to convey?” When we have answered these questions, we may like or dislike the work in question. But no distinct step intervenes between our understanding and our ap- proval or disapproval. If we disapprove, but remain distrustful of our judgment, we do not ask ourselves whether we have applied the wrong standard of approval, but whether we have after all truly understood what the artist was trying to do. Indeed. I. A.

(Fuller, 1964, p. 14) What Fuller wants to emphasize with this point is that the "discursive justification" of judgements of the morality of aspiration is different from that of judgements of moral duties.
> These last remarks are not intended to deny the quality of rationality to the morality of aspiration. Rather they are intended to assert that the discursive kind of justification that characterizes judgments of duty is out of place in the morality of aspiration. This point is illustrated. I believe. in the Platonic Socrates.

(Fuller, 1964, p. 14) Fuller highlights how Socrates claimed that knowledge of the good life implied (i) moral reasons to act and, more importantly, (ii) by itself motivates an agent to pursue it.

That is, knowledge of the good already implies motivation to attain the good life.
> Socrates identified virtue with knowledge. He assumed that if men truly understood the good they would desire it and seek to attain it. This view has often been considered as being either puzzling or absurd—depending on the modesty of the critic. If Socrates were teaching a morality of duty, the criticisms of him would certainly have been justified. But his was a morality of aspiration. He sought to make men see and understand the good life so that they would strive to attain it. His argument would not

(Fuller, 1964, p. 15) Fuller highlights that Socrates' point is only true because he was talking about the morality of aspiration. It would not be true in the case of judgements of moral duties.

A possible problem with Fuller's point is that knowledge of the good life is not simply knowledge of facts. It is in fact knowledge about what is good, about what is excellence or, to put it differently, knowledge about moral facts.
> have been clarified, but confused, if he had said, “First, I shall demonstrate what the good life is like so that you may understand it and discern what kind of man you would become if you led it. Then I shall advance reasons why you ought to lead such a life."

(Fuller, 1964, p. 15) Fuller points out that our moral vocabulary has lost the association between virtue and the morality of aspiration.

As he also reminds us, the notion of a "sin" in the Bible originally referred to the idea of "missing the mark" or strive from excellence, and not simply the idea of violating a duty.
> With us the word “virtue” has become thoroughly identified with the morality of duty. For modems the word has largely lost its original sense of power, efficacy, skill, and courage, a set of connotations that once put it plainly within the morality of aspiration. The word “sin” has undergone a similar migration. With us to sin is to violate a duty. Yet the words translated in the Bible as “sin” contained originally the metaphor of “missing the mark.” Something of this original figure remained among the early Christians, for they listed among the deadly sins, not only Avarice and Unchastity, but also what Sidgwick calls “the rather singular sins” of Gloominess and Languid Indifference.10

## Marginal Utility and the Morality of Aspiration

(Fuller, 1964, p. 15) After elaborating on the relation between the morality of duty and law and the morality of aspiration and aesthetics, Fuller wants to draw a parallel between the two moralities and two conceptions of economics.
> I have suggested that if we look for affinities among the human studies, the morality of duty finds its closest cousin in the law, while the morality of aspiration stands in intimate kinship with aesthetics. I now propose an inquiry that may seem a little bizarre, that of determining the relationship between the two moralities and the modes of judgment characteristic of economic science.

(Fuller, 1964, p. 16) Fuller points out how the two biggest strands of definition of economics are: (i) economics is about relationships of exchange; (ii) economics is about the principle of marginal utility.
> There are, however, a few serious attempts to come to grips with the problem of properly defining economic science.12 In these, two general views emerge. One is that economics has to do with relationships of exchange. The other is that the heart of economics lies in the principle of marginal utility, the principle by which we make the most effective allocation of the resources at our command in achieving whatever objectives we have set for ourselves. The standard figure employed for distinguishing be-

(Fuller, 1964, p. 17-18) Fuller draws a parallel between (i) the economics of exchange and the morality of duty and (ii) the economics of marginal utility and the morality of aspiration.
> The economics of exchange has a close affinity with the morality of duty. The economics of marginal utility is, as it were, the economic counterpart of the morality of aspiration. Let me begin with this second relationship.

The economics of exchange has a close affinity with the morality of duty. The economics of marginal utility is, as it were, the economic counterpart of the morality of aspiration. Let me begin with this second relationship.
> The morality of aspiration has to do with our efforts to make the best use of our short lives. Marginal utility economics deals with our efforts to make the best use of our limited economic resources. The two are not only alike in what they seek to do, but also in their limitations. It is said that the morality of aspiration necessarily implies some conception of the highest good of man, though it fails to tell us what this is. Exactly the same criticism, with the same force, can be directed against the marginal utility principle. The consumer is viewed by marginal utility economics as seeking to equalize the return for each dollar he spends. When he has spent so many dollars for books that the return from this particular expenditure begins to diminish perceptibly, he may shift his expenditures to some other direction, say, for a richer and more satisfying diet. In this shift—in the very idea that one can compare and equalize expenditures for radically different things —there seems to be implied some ultimate criterion that stands above books, food, clothing, and all the other things and services for which men may spend their money. The marginal utility economist cannot describe what this criterion is, though, unlike the moralist of aspiration, he has a word to cover his ignorance. That word is, of course, “utility.” When the utility derived from a dollar’s worth of Commodity A declines to a point where it is lower than the utility derived from a dollar’s worth of Commodity B, the consumer shifts his expenditure toward the second kind of good. It is with this word “utility” that the economist draws a veil over his failure to discern some economic good that stands above all particular goods and serves to guide choice among them. The economist’s default remains, however, in essence the same as that of the moralist who purports to show men the way to the Good Life, without defining what the highest aim of life is or should _be.13

(Fuller, 1964, p. 18) For Fuller, the notion of utility in Bentham stretches the notion of pleasure too much, whereas the notion of utility in Mill becomes a conception of excellence.
> Bentham’s attempt to substitute for the goal of excellence that of pleasure was in effect simply to introduce into morality the same covert default that is inveterate in economics. It is impossible to maintain the assertion that all human striving is directed toward pleasure unless we are willing to expand the notion of pleasure to the point where it becomes, like utility in economics, an empty container for every kind of human want or striving. If, following Mill, we try to be more selective about what goes into the con- tainer, we end, not with the greatest happiness principle, but something like the Greek conception of excellence.

(Fuller, 1964, p. 18) Fuller argues that the notion of balancing is central in both the morality of aspiration and the economics of marginal utility.

More than that, however, the notion of balancing seems to be characteristic of all beings who pursue a plurality of ends.
> ' In default of some highest moral or economic good, we resort ultimately, both in the morality of aspiration and in marginal utility economics, to the notion of balance—not too much, not too little. This notion is not so trite as it seems, It is a characteristic of normal human beings that they pursue a plurality of ends; an obsessive concern for some single end can in fact be taken as a symptom of mental disease. In one passage Aquinas seems to

(Fuller, 1964, p. 18) Bibliography on description and prescription. Fuller, contra Ernest Nagel, seems to find something tricky in describing evaluative processes in morally neutral terms. Hart, in the Postscript, seems to think otherwise.
> 13. It may be objected that the comparison in the text confuses descrip- tion with prescription. Unlike the moral philosopher, the wonomist, it may be said, is indifferent to the question what the consumer ought to want; he merely describes a process of evaluation and finds the term “utility” useful in this description. But this view dodges the difficulties involved in trying to describe in wholly non-evaluative terms a process that is itself evaluative. (these difficulties were the occasion for an ex- change between myself and Professor Ernest Nagel; see 3 Natural Law Forum 68-104 [1958]; 4 id. 26—43 [1959].) The economist may not care what the consumer wants, but he cannot be indifferent to the process by which the consumer reaches his decision as to what he wants. If he is to understand that process, the economist must be capable of participating in it vicariously and have an understanding of its terms.

(Fuller, 1964, p. 19) Aristotle's notion of virtue should not be equated with a banal conception of the "middle way". Aristotle's was the hard way of the virtuous man.
> Whatever one may think of this paradoxical reasoning, there is nothing banal about Aris- totle’s conception of the just mean. This mean is not to be con- fused with the modern notion of “the middle way.” For modems the middle way is the easy way, involving a minimum of commit- ment. For Aristotle the mean was the hard way, the way from which the slothful and unskilled were most likely to fall. In this respect it made the same demands on insight and intelligence that sound economic management does.

## Reciprocity and the Morality of Duty

(Fuller, 1964, p. 19) Fuller draws attention to an interesting connection between duties and exchange: duties can arise of explicit exchanges and contracts.

However, it's also clear that not all duties arise of explicit exchanges.
> It is obvious that duties, both moral and legal, can arise out of an exchange, say, an exchange of promises or the exchange of a promise for a present act. A territory exists, therefore, that is shared in common by the concepts of exchange and duty. On the other hand, it would certainly be perverse to attempt to construe all duties as arising out of an explicit exchange. We can assert, for example, that the citizen has a moral duty to vote, and to inform himself sufliciently to vote intelligently, without implying that this duty rests on a bargain between him and his government or be- tween him and his fellow citizens.

(Fuller, 1964, p. 19) To account more adequately for the relationships between exchange and duties, Fuller argues, we need to shed light over the role of the so-called "principle of reciprocity" as a mediating principle.
> To establish the affinity between duty and exchange we require a third member, a mediating principle. This is to be found, I think, in the relationship of reciprocity. Exchange is, after all, only a particular expression of this more general, and often more subtle, relationship. The literature of the morality of duty is in fact filled with references to something like the principle of reci- procity.

(Fuller, 1964, p. 20) To reformulate the Golden Rule ("Judge not, that ye be not judged. For with judgement ye judge, ye shall be judged; and with what measure ye mete, it shall be measured to you again... Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets") as an explicit bargain -- something like Golden Rule I "So soon as I have received from you assurance that you will treat me as you yourself would wish to be treated, then I shall be ready in turn to accord a like treatment to you" -- would distort it.

It would become the language of cautious or even hostile trade. According to Fuller, the golden rule so interpreted would "dissolve the social bond altogether".
> Teachings like these—and they are to be found in all moralities of duty—do not, of course, imply that every duty arises out of a face-to-face relationship of bargain. This becomes apparent if we rephrase the Golden Rule to read something like this: “So soon as I have received from you assurance that you will treat me as you yourself would wish to be treated, then I shall be ready in turn to accord a like treatment to you.” This is not the language of morality, nor even of friendly commerce, but of cautious and even hostile trade. To adopt its thought as a general principle would be to dissolve the social bond altogether.

(Fuller, 1964, p. 20) What the golden rule hints at is not a network of bargains, but a network of pervasive bonds of reciprocity.

As Fuller cares to highlight, claims of moral duty tend to justify themselves by appeal to reciprocity.
> What the Golden Rule seeks to convey is not that society is composed of a network of eXplicit bargains, but that it is held together by a pervasive bond of reciprocity. Traces of this con- ception are to be found in every morality of duty, from those heavily tinctured by an appeal to self-interest to those that rest on the lofty demands of the Categorical Imperative. Whenever an appeal to duty seeks to justify itself, it does so always in terms of something like the principle of reciprocity. So in urging a reluctant voter to the polls it is almost certain that at some point we shall ask him, “How would you like it if everyone acted as you propose to do?”

(Fuller, 1964, p. 21) Possible objection: these appeals to reciprocity relato to the _rhetoric_ of duty, but not to its _sociology_, i.e., to how these social and moral practices in fact take place.
> I It may be objected that these remarks relate to the rhetoric of. duty rather than to its sociology. It is natural that a moralist trying to push men toward an unpleasant duty should include in his argument some appeal to self-interest

(Fuller, 1964, p. 21) Fuller's reply: this objection underestimates the degree in which reciprocity is present in our moral practices.
To built a case for this claim, Fuller draws attention to the following reformulation of the Golden Rule: (GRII) "So soon as it becomes perfectly clear that you have no intention whatever of treating me as you yourself would wish to be treated, then I shall consider myself as relieved from the obligation to treat you as I would wish to be treated".

According to Fuller, such a reformulation would not distort the central notion behind the Golden Rule. This is so because reciprocity works a a kind of "fail-safe point" in which one is justified in abstaining from an otherwise moral duty to Φ.
> This argument underestimates, I believe, the extent to which the principle of reciprocity has roots not only in our professions but in our practices as well. The rephrasing of the Golden Rule I presented a short while ago was an obvious perversion of its intent. I do not think its meaning would be distorted, however, if we were to add a qualification reading somewhat as follows: “So soon as it becomes perfectly clear that you have no intention whatever of treating me as you yourself would wish to be treated, then I shall consider myself as relieved from the obligation to treat you as I would wish to be treated.” Here the element of reciprocity is displaced by several removes from the duty itself; it represents a kind of “fail-safe” point. Men are certain to be of

(Fuller, 1964, p. 21) Fuller exemplifies his position by pointing out how a claim about a fellow citizen's moral duty to vote loses force if there is no reciprocity, i.e. if there is no "fulfillment of certain expectations concerning the actions of others" (e.g. that his vote be counted as vote in the electoral process).

This applies even to a case where such a citizen wants to vote, although he knows his vote won't be counted and all he wants to do is demonstrate election abuse. This is so because there must be _some_ reciprocity even then -- his action would be pointless if "all the world remains indifferent and unmoved by his action".
> So when I urge on a fellow citizen that he has a duty to go to the polls, my appeal will certainly lose its force if he knows quite well there is no likelihood that his ballot will be counted. The duty to vote is not absolute, but depends upon the fulfill- ment of certain expectations concerning the actions of others. This would be true even of a citizen who might vote knowing his ballot would not be counted where his object was to make a test case of certain election abuses. If all the world remains indifferent and unmoved by his action—does not come forward with some reaction to it—then it remains utterly pointless.

(Fuller, 1964, p. 21) Reciprocity seems to be a notion implicit in every duty that "runs toward society" or "toward another human being".

We could maybe think of the absence of duties in some social bonds, like a couple deeply in love or a group of people united by some serious emergency. But, as Fuller warns, these seem to be exceptions that contrast with a large picture of duties which arise in social life.
> In this broad sense there is a notion of reciprocity implicit in the very. notion of duty—at least in the case of every duty that rims toward society or toward another responsible human being. One can imagine a social bond that knows nothing of duties. Such a bond might exist between a couple deeply in love, or among a small band of men united by some emergency—making,

(Fuller, 1964, p. 22) Fuller argues that, as soon as contributions are designated and measured, there must be a point where, if the degree of reciprocity diminishes, so diminishes too the degree of contribution required by another agent, or even a point where, if the degree of reciprocity diminishes below a given threshold, there ceases to be a duty to act in a given way.

As Fuller highlights, the point of those duties is to maintain those patterns of conduct that are now destroyed (due to the lack of reciprocity).
Notice also how this seems to dialogue interestingly with Dworkin's notion of associative or role obligations.
> But so soon as contributions are designated and measured—which means so soon as there are duties—there must be some standard—however rough and approximate it may be— by which the kind and the extent of the expected contribution is determined. This standard must be derived from the pattern of a social fabric that unites strands of individual action. A sufficient rupture in this fabric must—if we are to judge the matter with any rationality at all—release men from those duties that had as their only reason for being, maintaining a pattern of social . interaction that has now been destroved.

(Fuller, 1964, p. 22) There is in this argument, according to Fuller, an implicit notion of anonymous collaboration of men through institutions
> In the argument just presented there is implicit the notion of a sort of anonymous collaboration among men by which their activities are channeled through the institutions and procedures of an organized society.

(Fuller, 1964, p. 22) Fuller highlights that relationships of reciprocity need not be self-serving. For instance, A and B can promise to both donate the same amount X to charity.
> ” In the argument just presented there is implicit the notion of a sort of anonymous collaboration among men by which their activities are channeled through the institutions and procedures of an organized society. This conception seems a long way from that of a simple exchange of economic values. But we should recall that even the direct and explicit relationship of reciprocity is by no means confined to anything like a horse trade. Suppose, for example, that two men exchange promises to give equal sums to the same charity. Here the usual self-serving motives of ex- change are absent, as is also the notion of performances running between the parties to the exchange. Yet in this case we certainly have a relation of reciprocity and, assuming no rights of the charity have intervened, the repudiation of his promise by one of the parties ought in fairness to excuse the other. The duties of both arise from and depend upon a relation of reciprocity that is not different in kind from that which unites the members of a society in more complex ways.

(Fuller, 1964, p. 22) If it is true that duties are generally grounded in the principle of reciprocity, Fuller argues, it must also be true that it accepts of different degrees of reciprocity and that we can perceive these different degrees
> If it is true that duties generally can be traced to the principle of reciprocity, it is also true that the reciprocity out of which a given duty arises can be visible, as it were, in varying degrees. At times it is obvious to those afiected by it; at others it traces a more subtle and obscure course through the institutions and practices of society.

(Fuller, 1964, p. 22-23) Fuller poses himself the question of under what circumstances does a duty become most visible.
His answer to this question is composed of three circumstances.
> This suggests the question: Under what cir-cumstauces does a duty, legal or moral, become most understand- able and most acceptable to those affected by it? I think we may discern three conditions for the optimum efficacy of the notion of duty. First, the relationship of reciprocity out of which the

(Fuller, 1964, p. 23) First, the duty arises of a voluntary agreement between the affected parties.
> First, the relationship of reciprocity out of which the duty arises must result from a voluntary agreement between the parties immediately affected; they themselves “create” the duty.

(Fuller, 1964, p. 23) Second, the reciprocal actions between the parties must be equal, according to some (correct) measure
> Second, the reciprocal performances of the parties must in some sense be equal in value. Though the notion of voluntary assump- tion itself makes a strong appeal to the sense of justice, that appeal is reinforced when the element of equivalence is added to it. We cannot here speak of an exact identity, for it makes no sense at all to exchange, say, a book or idea in return for exactly the same book or idea. The bond of reciprocity unites men, not simply in spite of their differences, but because of their differences. When, therefore, we seek equality in a relation of reciprocity what we require is some measure of value that can be applied to things that are different in kind.

(Fuller, 1964, p. 23) Third, the duty must be theoretically and practically reversible. That is, if A has in relation to B a duty to Φ, then it must also be the case that B must be capable of having a duty to Φ in relation to A.
> Third, the relationships within the so- ciety must be sufficiently fluid so that the same duty you owe me today, I may owe you tomonow——in other words, the relation- ship of duty must in theory and in practice be reversible. Without this symmetry we are likely to be stumped by Rousseau’s question, What is the reason that I, being myself, should act as if I were the other person, when I am virtually certain that I shall never be found in his situation?16

(Fuller, 1964, p. 24) Fuller points out that the kind of society whjere these conditions are best met is one of economic traders. This is so because of (i) voluntary exchanges, (ii) free market measure and assessment of different goods and (iii) the reversible character of trader roles, both in theory and in practice.
> When we ask, “In what kind of society are these conditions most apt to be met?” the answer is a surprising one: in a society of economic traders. By definition the members of such a society enter direct and voluntary relationships of exchange. As for equality it is only with the aid of something like a free market that it is possible to develop anything like an exact measure for the value of dis- parate goods.l7 Without such a measure, the notion of equality loses substance and descends to the level of a kind of metaphor. Finally, economic traders frequently change roles, now selling, now buying. The duties that arise out of their exchanges are therefore reversible, not only in theory but in practice. The re- versibility of role that thus characterizes a trading society exists nowhere else in the same degree, as becomes apparent when we consider the duties running between parent and child, husband and wife, citizen and government.

(Fuller, 1964, p. 24) Fuller highlights how Hayek predicates the Rule of law on the market principle
> Hayek sees the rule of law itself as dependent on a condition of society such that men may meet today to legislate their duties not knowing tomorrow whether they will owe these duties or be their beneficiaries. Understand- ably, Hayek identifies such a society with one organized on the market principle, and predicts a collapse of the rule of law for any society which abandons the market principle.18

(Fuller, 1964, p. 25) Pachukani's theory of law and the state holds that both legal and moral duties are determined by economic relations and that the achievement of communism would imply the end of law and the State
> Pashukanis’ theory became known as the Commodity Ex- change Theory of Law, though it might better have been called the Commodity Exchange Theory of Legal and Moral Duty. The theory was built on two pillars of Marxist thought: first, in the organization of society the economic factor is paramount; legal and moral principles and institutions therefore constitute a kind of “superstructure" reflecting the economic organization of so- ciety; second, in the finally achieved state of communism, law and the state will wither away.

(Fuller, 1964, p. 25) Legal rights and duties are, according to Pachukanis, determined by economic relationships of exchange.
> In its main outlines Pashukanis' argument was quite simple. The economic organization of capitalist society is determined by exchange. It follows therefore thatthe legal and political institu- tions of such a society will be permeated with notions derived from exchange. 80 in bourgeois criminal law we find a table of crimes with a schedule of apprOpriate punishments or expiations —a kind of price list for misbehavior. In private law the dominant figure is that of the legal subject who owes duties, possesses rights, and is granted the legal power to settle his disputes with others by agreement. The legal subject is thus the legal counterpart of the economic trader. With communism economic exchange will be abolished, as will all the legal and political conceptions that derive from it. In particular communism will know nothing of legal rights and duties.

(Fuller, 1964, p. 25-26) Pachukanis argues that the priority of economic relationships of exchange as grounding applies even to moral duties. He considered, for instance, that Kant's second formulation of the Categorical Imperative was only possible and an expression of the notion of subjects as market traders.
> The same analysis was extended to the field of morals. With achieved communism, morality as it is usually understood (that is, as the morality of duty) will cease to perform any function. How far Pashukanis carried his theory may be seen in his attitude toward Kant. Kant‘s view that we should treat our fellow man as an end, and not merely as a means, is usually regarded as one of the noblest expressions of his philosophy. For Pashukanis it was merely the reflection of a market economy, for it is only by enter- ing relationships of exchange that we are able to make others serve our ends at the same time we serve theirs.

(Fuller, 1964, p. 26) According to Fuller, Pachukanis would argue that, because of the grounding relation between economy and moral duties, the achievement of communism would imply the end of moral duties (or at least of moral duties as determined by economic relations).
> Indeed, any kind of reciprocity, however circuitously it may operate through social forms, casts men in a dual role, as ends in themselves and as means to the ends of others. Since there is no clear stop or breaking point between implicit reciprocity and explicit exchange, Pashukanis ends with the conclusion that when communism is finally achieved all moral duties will disappear.

(Fuller, 1964, p. 27) Interesting quote from Whicksteed, according to which it is not due to a question of selfishness that we enter into business relations with others.

Rather, we mutually serve each other's goals by serving our own because the goals of the others are relatively indifferent to us.
> We enter into busi- ness relations with others, not because our purposes are selfish, but because those with whom we deal are relatively indifferent to them, but are (like us) keenly interested in purposes of their own, to which we in our turn are relatively indifferent . . . There is surely nothing degrading or revolting to our higher sense in this fact of our mutually furthering each other’s purposes because we are interested in our own

## Locating the Pointer on the Moral Scale

(Fuller, 1964, p. 27-28) Fuller point out how bringing the dividing point of the moral scale downward implies the diminishing of spontaneity or inspiration, while bringing it upward implies turning moral duties more flexible by moral agents.
> This line of division serves as an essential bulwark between the two moralities. If the morality of duty reaches upward beyond its proper sphere the iron hand of imposed obligation may stifle experiment, inspiration, and spontaneity. If the morality of aspira- tion invades the province of duty, men may begin to weigh and qualify their obligations by standards of their own and we may end with the poet tossing his wife into the river in the belief— perhaps quite justified—411m he will be able to write better poetry in her absence.

(Fuller, 1964, p. 28) A similar relation holds between the economics of exchange and the economics of marginal utility. The economics of exchange imposes limits to the economics of marginal utility in the form of contracts and property rights.
> A similar relation holds between the economics of exchange and of marginal utility. Before the principle of marginal utility nothing is sacred; all existing arrangements are subject to being reordered in the interest of increased economic return. The eco- nomics of exchange is, in contrast, based on two fixed points: property and contract. While it permits interested calculation to reign everywhere else, such calculation is excluded when the question is fidelity to contract or respect for property. Without a self-sacrificing deference toward these institutions, a regime of exchange would lose its anchorage and no one would occupy a sufficiently stable position to know what he had to offer or what Ihe could count on receiving from another. On the other hand, the

(Fuller, 1964, p. 28) On the other hand, property and contract rights must be optimal in their boundaries, that is, they should not constrain the possibilities of the optimal use of resources according to the principles of marginal utility.
> On the other hand, the rigidities of property and contract must be held within their proper boundaries. If they reach beyond those boundaries, society's effort to direct its resources toward their most effective use is frustrated by a system of vested personal and institutional interests, a “re- served market,” for example, being a kind of property right reach- ing beyond its proper domain. Here we encounter again what is

(Fuller, 1964, p. 29) A pervasive problem of social design is balancing a supportive structure and adaptive fluidity. This, according to Fuller, applies to many areas of social life.
It is not simply a matter of a dilemma between freedom and security, but rather a matter of balancing among society as a whole.
> 'A pervasive problem of social design is therefore that of main- taining a balance between supporting structure and adaptive fluidity. This problem is shared by morals, law, economics, aesthetics, and—as Michael Polanyi has shown—also by sci- ence.‘22 The nature of this problem is nOt adequately perceived when we think of it in trite terms as an opposition between se- curity and freedom, for we are concerned not merely with the question whether individuals are or feel free or secure, but with attaining a harmony and balance among the processes—often anonymous—of society as a whole.23

(Fuller, 1964, p. 29) Fuller suggests that the essential (or maybe salient0 feature of (moral and legal) rights and duties is their tendency to "resist qualification" and "represent sticking points in human resolution".
> Holmes once observed that every legal right tends to become absolute.“ One may sug- gest that it is just this tendency toward the absolute that con- stitutes the essential meaning of “a right,” whether it be legal or moral. In like manner one may say of the notion of duty that its meaning lies in a resistance to qualification. In contrast to mere desiderata, counsels of prudence, appeals to vague ideals and the like, rights and duties (whether they be moral or legal) represent sticking points in human resolution. In proper cases they may be qualified, but they may be counted on to resist qualification.

(Fuller, 1964, p. 29-30) Fuller claims that Hart's notion of defeasible concepts (something like "S is attributed legal status L unless excuse X is the case") may be a manifestation of the morality of duty in law.
> The view just expressed is closely akin to H. L. A. Hart’s notion of “defeasible concepts."25 To say that a man has entered a contract is not just to tip the scales of justice indeterminately toward the conclusion that he may possibly have incurred an obligation. It is to say that he is obligated unless some specific ground of excuse, such as incapacity or duress, can be established. One may suggest that what is manifested here is an impulse of the morality of duty, expressing itself within the law, to maintain the integrity of its domain and to protect that domain from the erosions threatened by a view that attempts to solve too many simultaneous equations at once.

## Rewards and Penalties

(Fuller, 1964, p. 30) The distinction between the two moralities is also found in the common understanding of penalties and rewards
> I refer to the way in which that distinction finds tacit recognition in our social practices concerning penalties and rewards.

(Fuller, 1964, p. 30) in the morality of duty, penalties have priority over rewards
> In the morality of duty it is understandable that penalties should take precedence over rewards. We do not praise a man, or confer honors on him, because he has conformed to the mini- mum conditions of social living. Instead we leave him unmolested and concentrate our attention on the man who has failed in that Iconformity, visiting on him our disapproval, if not some more tangible unpleasantness. Considerations of symmetry would sug-l

(Fuller, 1964, p. 30) Although not in a perfectly symmetrical fashion, the opposite is true in the morality of aspiration, where priority is given to praising excellence.

Fuller argues that praise does not play the same role as penalties in the morality of duty because, as one goes up in the scale of human excellence, "the less competent are others to appraise his performance".
> Considerations of symmetry would sug- gest that in the morality of aspiration, which strives toward the superlative, reward and praise should play the role that punish- ment and disapproval do in the morality of duty. To some extent this mirror image maintains itself in practice. But perfect sym- metry is marred by the fact that the closer a man comes to the highest reaches of human achievement, the less competent are others to appraise his performance.

(Fuller, 1964, p. 31) Both penalties and rewards must be attributed according to rational criteria; that said, the criteria to be met in the attribution of penalties are much more demanding than those of the morality of aspiration (e.g. the principle of due process).
> Wherever distinctions are granted or deprivations imposed it is natural to select some um- pire or committee to make the decision, and, no matter whether the issue be that of penalty or award, the deciding agency is expected to act with intelligence and impartiality. Nevertheless there is a great difference in the procedures generally established for meting out penalties as contrasted with those which grant awards. Where penalties or deprivations are involved we sur- round the decision with procedural guaranties of due process, often elaborate ones, and we are likely to impose an obligation of public accountability. Where awards and honors are granted we are content with more informal, less scrutinized methods of decision.

(Fuller, 1964, p. 31) The reason for this difference, according to Fuller, is that in the case of penalties we are talking about lower levels of human achievement, where comparative certainty and formal standards for judging can take place; In the case of awards, on the other hand, one is talking about human achievements whose praise is intuitive and somewhat subjective.
> The reason for this difference is plain. Where penalties and deprivations are involved we are operating at the lower levels of human achievement where a defective performance can be recognized, if care is taken, with comparative certainty and formal standards for judging it can be established. At the level where honors and prizes become appropriate we see that there would be little sense, and a good deal of hypocrisy, in surround- ing a decision that is essentially subjective and intuitive with the procedures appropriate to the trial of a law suit.

(Fuller, 1964, p. 32) Fuller highlights how we are normally content with informal and somewhat subjective procedures for the attribution of honorary awards.

A possible objection considered by Fuller is the beatification process. However, as Fuller points out, in this case we talking about a procedure to authorize a cult, and not simply of an award or praise.
> Generally we are content with informal methods of decision— often screened from the public—when selections are made for honorary degrees, military decorations, hero medals, literary and scientific prizes, foundation awards, and testimonial dinners. One outstanding exception to this laxness may seem to be presented by the elaborately formal procedure of beatification in the Roman Catholic Church. But this procedure does not in fact constitute an exception. Its object is not to honor a saint, but to authorize a cult. In the language of administrative law, it is a certification procedure. The required performance—including as it does the working of miracles—of necessity runs off the top of the scale of human achievement. Presumably, however, it falls within the lower rungs of the supernatural.

(Fuller, 1964, p. 32) Fuller concludes the chapter by stating that the common sense view about morality rejects the Platonic View of the Good (PVG) as a good view about our moral epistemology.
We can much more easily recognize a harsh departure from satisfactory conduct than a slight departure from perfect conduct.

Moreover, we can recognize those harsh departures without a clear account of perfection.
> In the social practices I have just described there is a standing refutation for the notion, so common in moral argument, that we must know the perfectly good before we can recognize the bad or the barely adequate. If this were true, it would seem to be much easier to assess a five per cent deviation from perfection than to judge a ninety per cent departure. But when it actually comes to cases, our common sense tells us that we can apply more objective standards to departures from satisfactory perfor- mance than we can to performances reaching toward perfection. And it is on this common sense view that we build our institutions and practices.

# II. THE MORALITY THAT MAKES LAW POSSIBLE

# III. THE CONCEPT OF LAW

# IV. THE SUBSTANTIVE AIMS OF LAW

# V. A REPLY TO CRITICS

# APPENDIX: THE PROBLEM OF THE GRUDGE INFORMER

___
FULLER, Lon L. The Morality of Law. 2. ed. New Haven: Yale University Press, 1969.