# American Legal Philosophy at Mid-Century - A Review of Edwin W. Patterson's Jurisprudence, Men and Ideas of the LaW

**Year:** 1954
**Author:** Lon L. Fuller
**Keywords:** #fuller #human_ends #interaction #action #natural_law_theory
**Permanent Notes:**
**Literary Notes:**

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**Summary:**

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(FULLER, 1954, p. 457458Fuller describes Patterson's position as American legal realism with a pragmatic element.

> Patterson sees American Legal Realism as a useful and necessary step in the evolution of legal philosophy in this country, not as a permanent way of life. He profits from semantic studies of meaning, without converting his philosophy of law into, a philosophy of words

(FULLER, 1954, p. 458)Fuller disagrees with Patterson regarding fundamental questions.

> On certain issues of legal philosophy - ancient and ever-recurring I find myself in fundamental disagreement with Patterson. In what follows I shall try to clarify the nature of our differences as I see them

(FULLER, 1954, p. 458-459)Fuller does not disagree with Patterson in regard to many particular questions, but he does disagree over the grounds of those claims.

> On most particulars I am sure Patterson and I would be in substantial agreement. Where we chiefly disagree is as to the grounding of those particulars. Hence when I speak of cases and specific issues, I do not mean to imply that Patterson would decide them differently than I do; I am saying only that I believe his philosophy does not satisfactorily justify and support the decisions that both of us would pro

## THE IMPERATIVE THEORY OF LAW
(FULLER, 1954, p. 459)Fuller comments how Patterson defends a sort of imperative theory of law and holds that those who reject it usually do so based on shaky religious or ethical grounds

> Throughout his book Patterson makes reasonably apparent his sympathy for the view that the fundamental reality of law lies in the organized force of the state. Yet his mild partisanship for this theory scarcely prepares the reader for the following statement on page 179: Those who attack it [the imperative conception of law] usually profess to have in reserve either some immutable set of ideals, which if revealed turn out to be authoritative religious or ethical doctrines, or else some hunch about the soul of society which seems too ineffable for com

(FULLER, 1954, p. 459-460)Fuller claims that Austin's main concern was a normative one, namely, to promote the "desideratum of social order".
This is the reason why Austin would be interested in preserving "the integrity of the word 'law'".
As Fuller puts it, law would be something which commands attitudes directed toward its "proper objects" (or rather subjects).

> Not much reading between the lines of Austin's famous Lectures is needed to see that his basic interest was in promoting the desiratum of social order, and that everything else was for him a means to that end. In his quest for order, Austin was particularly intent on preserving the integrity of the word "law/' a word commanding attitudes he wished to see directed toward the proper objects

(FULLER, 1954, p. 460)Fuller argues that _it is because_ Austin was concerned with the maintenance of social order that he could not have as his starting the point the notion that law is that which is right and/or just.

> Since his basic interest was in social order, Austin could not take as his starting point the notion that law is that which is right and just. Soth Hobbes and Bentham, each in his own vivid idiom, had described the "war of all against all" and "the cut-throat scene we should have of it" if the answer to the question, What is law? were left to the individual conscience. Nor could Austin find his anchorage in rules established by custom. Many disputes are left unregulated by customary rules. Furthermore, the "spontaneous adoption" of a rule by an unidentified mass was too indefinite a test for a mind intent on a sharp line of distinction between what is law and what is not.

(FULLER, 1954, p. 461)Fuller criticizes Patterson's point that Kelsen's notion of the basic norm would not be a "natural-law" concept. Contra Patterson, Fuller argues that Kelsen himself would have admitted that his notion would represent the "minimum" of natural-law without which there can be no legal system.
Fuller's mistake, in my view, lies in assuming that _because_ Kelsen's notion of the Basic Norm constitutes the _minimum_ of natural-law that it must be the case that the Basic Norm would be a Natural Law concept. This seems to be wrong for two reasons:
1) The assumption of a notion X (such as the Basic Norm) can be a necessary condition for a theory of natural law without being a sufficient condition.
2) The Basic Norm is just a hypothetical norm which is presupposed by the legal scientist as a category which explains the possibility of legal cognition. It is not treated as a moral fact or as a norm which exists. It is just a hypothesis which makes legal talk about legal normativity intelligible

> It was this difficulty in theories like Austin's that led Kelsen to substitute for the personified "sovereign one or many" the idea of a "basic norm" by which the capacity to create law within a given legal order is defined. It is misleading to assert, as Patterson does,15 that Kelsen insists his basic norm is not a "natural-law" concept. On the contrary, he has in effect admitted that it represents the minimum of "natural law" without which any system of positive law is impossible.16 Kelsen's theory of the "basic norm" asserts essentially that you have to accept or postulate at least one rule governing the law-making process before that process itself can get started, just as a hundred men placed in a room together could not acquire the capacity for "corporate action" without accepting at least one organizational principle, even if it were only, "What Jo

(FULLER, 1954, p. 462-463)Fuller criticizes the common version of the imperative theory of law -- supposedly shared by "many Americans tonday" -- according to which law is grounded in force. He rejects this idea for two reasons:
1) Force alone cannot be the ground of legal obligations;

2) It is inconsistent to hold that a theory about the grounds of legal obligations cannot lie in a "moral power" while insisting that legal obligations be defined in terms of force _if_ the discussion takes as its starting point the normative problem of how to define law and legal obligations in such a way as to guarantee social order (i.e. a normative or moral starting point).

> I stress these differences not because I am particularly eager to pit the refinements of one "theory" against another, but because I think something fundamental is at stake. Many Americans today accept as a truism the identification of law with force. Not having given serious thought to the matter, they tend to identify this "force" with physical coercion. They resist strongly any suggestion that the power on which law must rest is essentially a moral power, reflecting the persuasive force of accepted rules. Paradoxically, the motive that lies back o the insistence that law be defined in terms of physical power is itself generally moral in nature. It rests on a fear that if we start with accepted rules, the way is then opened up for fastening on society some all-embracing orthodoxy. Force is at least ideologically colorless.

(FULLER, 1954, p. 463)Fuller shares some of the moral preoccupations which seem to be behind the insistence that legal obligations should not be grounded in moral considerations so as to maintain law-making "ideologically neutral", but points out that the theories that arise out of these worries miss the mark.
Instead of holding that law be grounded in sheer force, Fuller argues, we should try and focus on a two-step theoretical endeavor of (1) determining the _moral principles which ground or make law possible_ and (2) develop a normative theory about how to protect them and promote their understanding.

> I have a profound sympathy for what might be called the moral motivation underlying the viewpoint I have just described. I share the fear on which it is based. But it is possible to react to a justified fear in morbid and mistaken ways. In my opinion the impulse to keep our law-making process "ideologically neutral" deserts its cause when it embraces the theory that identifies law with organized force. Rather its proper objective should be to discern those minimum principles that must be accepted in order to make law possible and then to protect the integrity of those principles and to promote a general understanding of them. From this point of view, it is possible to discern a number of desiderata

(FULLER, 1954, p. 463)Fuller makes an interesting point that it is not enough to just ground law in general acceptance of rules. We also need to account for the _reasons_ why these rules are necessary (that is, pragmatically necessary, probably).

As Fuller adds, it is important that we do not confound constraints (I think by this he means the reasons according to which those rules are necessary) that are necessary to the law-making process with those that are not necessary.

> The sanction back of the fundamental rules of the game, without which the game itself could not go on, is and can only be general acceptance. This general acceptance can be assured only if the rules are kept simple and understandable. In this respect Kelsen's basic norm points in the right direction, though it sets up an impossible ideal. But a rote knowledge of the rules is not of itself sufficient. Understanding must be vitalized by an appreciation of the reasons why these rules are necessary. It is highly important that the fundamental rules which derive their sanction from acceptance should not be unnecessarily intermixed with constraints not essential to the law-making process itself

(FULLER, 1954, p. 464)Although Fuller does not develop this point much here, he makes the an interesting remark that we can meaningfully apply the bad-man theory of law to the so-called "periphery" of law, but this is not true when we are talking about the rules which make govern (or the State, or better yet law) possible.

I think Hart explains the reason for this satisfactorily. That said, one could make the point that applying the bad-man theory of law to the rules which make law possible misses something important about law because it leaves unaccounted the _reason_ why law exists and the _ends_ it purports to serve.

Notice that a similar point is also made by Finnis, who argues that _if_ we want to understand a well functioning legal system, we have to account for the point of view of someone who wants to _constitute_ law (which seems to suggest the need for theorizing what is law constituted _for_, maybe).

> The bad-man theory of law - the view that identifies the reality of a rule of law with the quantum and direction of the physical force behind it - is a theory that can be applied without disaster to the periphery of the law. The citizen preparing his income tax may properly ask his attorney how the Revenue Act will be interpreted and enforced, not how he may most effectively cooperate in helping to achieve its purposes. A similar attitude applied to the rules that make government itself possible is poison. This is a truth obvious to anyone who has ever witnessed an attempt to conduct a meeting by Robert's Rules of Order where there was no real and shared desire to reach a decision through parliamentary procedures

(FULLER, 1954, p. 464-465)Fuller argues that law cannot be totally grounded in coercion, because the rules which regulate the use of force can only exist if they are accepted. Moreover, says Fuller, those rules will only continue being accepted if they are generally perceived as necessary. If the use of force is abused, people can start to abandon the idea that the rules which regulate coercion are necessary, which would lead to the general acceptance of those rules being undermined.

One possible objection against this idea is that Fuller does not differentiate between _which_ persons (i.e. officials and non-officials) would need to accept rules in order for them to be deemed as valid.

> This bent toward legality and away from purpose is particularly apparent in current discussions of abuses of the power to compel testimony. Intelligent legislation requires a knowledge of what is going on in society, and this knowledge can at times only be obtained by compulsory processes. Something equivalent to the writ of subpoena is, therefore, essential to orderly goverment to compel testimony (one of the most drastic of governmental powers) will be accepted as just and proper only so long as the need for it is generally perceived and its use related meaningfully to the needs of governr ment. If this power is openly abused for personal ends, the foundations of voluntary acceptance upon which government itself ultimately de7 pends are undermined

(FULLER, 1954, p. 465)Fuller makes an important point: the notion that law is essentially grounded in power, taken as a general understanding of law by its participants, cannot further the goal that law be treated according to the ends it can be seen as serving and which justify the general acceptance of these rules.
For instance, coercion can guarantee that people act in accordance with patter of behavior X, but it does not further the principles which ground the acceptance of legal rules. This, Fuller seems to suggest, is only possible through a culture which care about law's adherence to those moral reasons which ground the general acceptance of the rules which make law possible.

Not really sure if this reading stretches a bit what Fuller _really_ intended to convey, though.

One point against Fuller: Fuller is right that legally ushered coercion alone is not capable of furthering a culture of public pressure that law adhere to the general principles which law serves and which make it possible. _That said_, it is not true that grounding the existence of legal rules in sheer power implies that we cannot _also_ argue that this social institution X, which exists as a matter of power and force, should be used in a rational way and serve a given set of X which would justify not only obedience, but a general _acceptance_ of its norms. This seems wholly compatible with holding that law is a matter of power, as long as we hold that at least _some_ people, probably legal officials, accept the existence of some social rules which constitute law.

> It is not sufficiently recognized that the Supreme Court can no more insure decency and fairness in the use of governmental power than an able chairman, backed by a written code of procedure and a husky sergeant-at-arms, can compel a meeting of rowdies to conduct a fair and orderly discussion. The prevention of indecencies in the use of governmental power must depend ultimately on the pressures of public opinion, particularly the opinion of the legal profession. This opinion can be effective only if it is informed by a sound philosophy. It cannot be so informed when it accepts a view that treats governmental power as a brute datum and refuses to examine the rational and moral grounds of its justific

(FULLER, 1954, p. 465)Fuller comments how the imperative theory of law obscures the "true nature of régimes like that of Hitler" and its different from regimes in which the moral principles which make the general acceptance of legal norms which make law possible are respected.

> The greatest disservice of the imperative theory has been to obscure the true nature of régimes like that of Hitler in Germany. More than any other in history, the Nazi dictatorship came to power through the calculated exploitation of legal forms. So cynically skillful was this abuse of legal procedures that its lessons have been studiously absorbed by every dict

(FULLER, 1954, p. 465-466)Fuller argues claims that the imperative theory is incapable of pointing out what makes the "lawful" character of the Nazi Dictatorship different from other legal regimes. This is so because in both regimes there is a sovereign towards which the bulk of the population has an habit of obedience. We can of course argue that one sovereign is way morally worse than the other, but we cannot say much about their adherence to lawfulness.

I am not sure whether this is a good criticism of the imperative theory. That said, there may be something interesting to say about this related to peripheral and central cases of law, where central cases of law are those which have success in making a difference in the practical reasoning of its subjects through valid legal rules

> (FULLER, 1954, p. 465)

> I have just said that the Nazi régime was based on an "exploitation of legal forms." But if the imperative theory is right, what was there to exploit? In terms of that theory, the German people simply traded one "top dog" for another. We may deplore their taste in leadership, but their new leaders were just as "lawful" as their predecessors, since they too met the test of enjoying the habit of obedience of the bulk of society. The painful, faltering agony through which Western Germany passed in attempting after the war to restore lawful and constitutional procedures is, for the imperative theory, simply another transfer of allegiance to still another set of human rulers. By directing attention away from the moral sources of governmental power, the imperative theory encourages the belief (commonly held in this country, I think) that the Nazi revolution was itself an original well spring of power

(FULLER, 1954, p. 467)It seems to be an important point in Fuller's understanding of law that is it not simply a "datum", but rather a form of social organization which is "an achievement" that needs to preserved and renewed.

This seems to imply understanding "the springs from which its strength derives". This statement from Fuller, if I am not wrong, is what is implied in the two-step endeavour of "(1) determining the moral principles or ends in which the general acceptance of law seems to be grounded and (2) assessing how those principles can be preserved and further, i.e., which means can further these justifying ends".

> of the law itself. For I believe that law is not a datum, but an achievement that needs ever to be renewed, and that it cannot be renewed unless we understand the springs from which its strength derives

## NATURAL LAW
### SOME FALSE ISSUES

(FULLER, 1954, p. 467)Fuller thinks the discussion about natural law seems to be futile in the sense that it doesn't lead to the the clarification of the problems of law and justice.

One of those notions of natural law which Fuller deems wrong is that natural law theorists are committed to "absolutes" and that those who reject natural law theory are relativists.

> Current disputes about "natural law" in this country generally revolve about certain issues that seem to me to be futile in the sense that a discussion of them leads to no clarification of the essential problems of law and justice. One of these is the notion that adherents •of natural law are committed to "absolutes," while those who reject it are "relativists"

(FULLER, 1954, p. 467-468)Fuller argues that the idea of natural law can be severed to the question of fidelity to the law. As he adds, even judges who reject natural law theory can claim that a particular legal rule is so morally unjustified that one cannot follow or apply it.

> But the issue of fidelity to positive law is certainly severable from that of natural law generally. If the matter is examined candidly it will be found that there is no one who cannot imagine himself, even as a judge, being faced by a law so infamous that he would feel bound to disobey it

#### The Direction-Giving Quality of Purposive Facts
(FULLER, 1954, p. 468)Fuller highlights that the discussion about how we can justify ethical judgements normally assume two ideas: (1) that there is a _difference in kind_ between statements about what ought to be and statements about what actually exists; (2) that it is impossible to derive from a statement about what exists any conclusion about what ought to be.

> When the question is discussed today, How can ethical judgments be justified?, two propositions are generally accepted as truisms: (1) there is a difference in kind between statements about what ought to be and statements about what actually exists; (2) it is impossible to derive from a statement about what exists any conclusion about what ought to be

(FULLER, 1954, p. 468-469)Fuller thinks this separation between _is_ and _ought_ would be considered strange by Plato and Aristotle and that this understanding of moral talk has gained influenced through Kant.

> Neither of these assertions would have appeared as a truism to Plato or Aristotle, and those philosophers would probably have had difficulty extracting a clear meaning from them. It is only in more recent times, and chiefly through the influence of Kant, that these propositions have reached the status of axioms among philosophers and laymen generally

(FULLER, 1954, p. 469)Fuller rejects the fact-value dichotomy and wants to provide an argument for its rejection based on the following example

> In principle, at least, Patterson accepts "the dichotomy of fact and value" and the impossibility of deriving "value judgments" from "facts." 23 In this I differ from him, for I believe that this time-worn dichotomy requires serious modification when applied to purposive human behavior as a simple illustration will show

(FULLER, 1954, p. 469)A disassembled machine is sold to a professor of English and to a mechanic. The instructions about how to assemble the machine are drafted by an engineer, who is skillful but who knows English poorly.
Fuller asks us to imagine that the professor of English follows the instructions literally and struggles to assemble the machine, whereas the mechanic "hardly notices the literal meaning" of the engineer and instead tries to do what the engineer was trying to say, such that he easily assembles the machine.

Fuller asks us to answer, without making use of value judgements, who has understood the empirical facts of the instructions given by the engineer "most truly" ("who penetrated most truly to the empirical facts of these instructions").
Notice that Fuller's proposal is not exactly free from complications. What Fuller _really_ seems to be asking is who understood the instructions better, considering the goal of the instructions (i.e. to assemble the machine). But this is not the same thing as to ask who got "the empirical facts" of the instructions.

We could maybe concede that what he means by empirical facts are the sorts of entities being referenced by the instructions (e.g. the instruction "The 40 cm aluminum beam should be attached to the basis of the machine prior to the attachment of the other parts" refers to entities such as a "40cm long aluminum beam"). But this is not the same as _understanding_ an instruction well.

Assessing whether someone _got an instruction right_ requires making normative claims, it is not the same as "getting the entities referred in a normative proposition".

> A machine is to be sold in a dismounted form and an engineer, skilled in his trade but awkward in English, drafts the instructions for its assembly by the purchaser. A professor of English and a mechanic both buy the machine, and each reads and attempts to apply the instructions. The professor applies them in their literal sense and gets into trouble. The mechanic hardly notices the literal meaning of the words, but looks through to what the engineer was trying to say. He assembles the machine without difficulty. We are interested in the dichotomy of is and ought as applied to these instructions. Refraining from all "value judgments," whó penetrated most truly to the empirical fact of these instructions, the professor of

(FULLER, 1954, p. 469)Fuller then qualifies his thought experiment, suggesting that we imagine that now the engineer forgot to instruct the purchasers to wire an electric circuit. Suppose further that there is now a third purchaser, namely, an electrician.

Fuller asks us to imagine, plausibly, that in this scenario, the mechanic had a problem assembling the machine, whereas the electrician had none and that he did not even notice the fault in the instructions and that he wired the circuit "by instinct".

In this scenario, if we were allowed to make evaluative claims, we would have no difficulty in ranking which reading was best suited to the assembly the machine or, in other words, _which means best suited the end_.

> Again, suppose the instructions not only are defective in English, but also contain an error in an electric circuit to be wired by the purchaser. Our mechanic this time has trouble too, though not so much as the professor of English. A third purchaser is an electrician, who sees that the draftsman of the instructions has not wholly thought through his problem, and who therefore corrects the defective circuit. (Conceivably he might do this instinctively so that he would not note the error as he read.) The same words on paper have now produced three different effects. If we were permitted an evaluation we would have no difficulty at all in ranking these three readings in terms of their contribution toward an end shared by all concerned, namely, the proper assembly of the machine.

(FULLER, 1954, p. 469-470)Fuller then asks us again which interpretation of the instructions is _closest to "fact"_. He answers this question by claiming that the only "significant standard" we have of fact in this question is "the same which determines the 'value of the three readings, namely, their conformity to an end shared by all".
He highlights that we could think of other standards according to which we could assess whether the English professor's interpretation was true, but that those other standards or purposes were not the ones the instructions and the engineer had in mind.

I don't see why Fuller does not consider the more obvious possibility: that the question itself is poorly formulated, since there is no factual proposition which can adequately answer the question of who understood the instructions better and that no adequate response to this question is "factual".
Being overly charitable, we could maybe concede that _purposes_ could be considered possible mental states which express the desire that a given state of affairs happen (e.g., the purpose of the engineer could be construed as the possible desire that the machine be assembled in such and such a way). This would permit us to conceive of _purposes_ descriptively.

Even then, however, we cannot make sense of Fuller's question as a question about _facts_, because _assessing_ whether a given interpretation conforms to facts (we just made the assumption that _purposes_ could be described in entirely descriptive propositions) is still to make a _normative_ claim about _conformity_ .

> But which interpretation is closest to "fact"? Is it not true that the only significant standard we have of "fact" here is the same as that which determines the "value" of the three readings, namely, their conformity to an end shared by all, that of putting the machine together so that it will run properly? However "true" the interpretation of the English professor might be for some purposes, it was not true for the only purpose that he and the draftsman of the instructions had in mind

(FULLER, 1954, p. 470)The gist of Fuller's argument against the fact-value dichotomy here could be roughly presented as something like this:

(1) A purpose is at the same time a fact and a standard for judging facts.

(2) Some knowledge about purposes combined with knowledge about a given relevant fact gives us normative knowledge.
(3) Some knowledge about facts alone gives us normative knowledge (2,1)
(4) If the fact-value dichotomy is true, then it is true that knowledge about facts alone cannot give us normative knowledge
(5) The fact-value dichotomy is not true (4,3 from modus tollens)

The problem with this argument seems to be that (1) seems false and probably just bad metaphysics and that (2) is only true if we treat purposes as _normative entities._

> ind. A purpose is a fact, but it is a fact that sets a target ; it is a direction-giving fact. So soon as we recognize this quality of a purpose, it becomes clear that within the limits of its framework a purpose is at once a fact and a standard for judging facts. To such a fact the "logic" that tells us it is impossible to deduce what ought to be from what is becomes

(FULLER, 1954, p. 470)Fuller considers the possible objection that he confounds "oughtness" with "purpose", because one cannot derive from the fact that someone has a given purpose that he should act _according_ to this purpose. 
He replies that the objection misses the point: it is true that it does not follow from the existence from a purpose alone that it one should act according to it, but it does mean that we can assess the conduct of someone according to this purpose, that is, that it can "give direction"

> It may be objected that my illustration confounds "oughtness" with "purpose," and that you cannot derive from the fact that a man's mind is purposively directed toward assembling a machine, the proposition that he ought to assemble it. But this simply means that his purpose has not as yet been subjected to any criterion external to itself and that it has not been tested for its harmony with other purposes. It does not deny that an accepted purpose within its own compass can give direction, that it can furnish a standard for saying, "This is good. This is bad. This helps. This hurts." Later I shall indicate what the view here advocated has to say about the question how the goodness of a particular purpose should be judged

(FULLER, 1954, p. 470)Fuller argues that the same is true for law, in the sense that a law precept can only be understood clearly, _if_ one takes into account what purpose (or what purposes) it serves.

Fuller claims that this should mean that we have to reject the fact-value dichotomy, as this "purpose" is something which points out to a direction and which is normative, although it is also a fact.

> As for the application of the dichotomy of is and ought to the law,, it is fairly clear that with legal precepts, as with the instructions for assembling a machine, what a direction is can be understood only by seeing toward what end result it is aimed. The essential meaning of a legal rule lies in a purpose, or more commonly, in a congeries of purposes. Within the framework of this purpose, or set of related purposes, the sharp dichotomy between fact and evaluation cannot be maintained; the "fact" involved is not a static datum but something that reaches toward an objective and that can be understood only in terms of that reaching

(FULLER, 1954, p. 470)A possible objection against this is that it obscures the distinction between what the law is and what it should be.

> In criticism of the view just expressed, it has been asserted that it destroys the possibility of defining what the law actually is and prevents the taking of any distinction between what is in fact law and what ought to be law

(FULLER, 1954, p. 470-471)Fuller thinks this objection would be relevant only if he was suggesting that one could attribute any kind of purpose one wanted to some legal norm.

All that Fuller is proposing is that (1) a law must be interpreted in the light of some purpose and that (2) this purpose should not be reduced to non-purposive facts related to experience

> This criticism would be justified only if the view I am advocating permitted the interpreter of a statute or precedent to read into it any purpose he saw fit. No such abandonment of ordinary principles of interpretation is here proposed or implied. All that is asserted here is (1) that a law must be interpreted in the light of some purpose; (2) that this purpose should not be subjected to a false "logic" derived from experience in dealing wtih non-purposive facts.

(FULLER, 1954, p. 471)Fuller thinks that the question of whether the dicthotomy of is and ought can be applied to purposes is deeply related to the debate about legal positivism and natural law.

> s.25 I believe, on the contrary, that the question whether the dichotomy of is and ought can be applied to purposes goes to the heart of the philosophic issue of natural law *v.* positivism

(FULLER, 1954, p. 471)Fuller says that an insistence on applying the is-ought distinction to purposes permeated the theories of all those who rejected natural law theory.

He cites Kelsen as an example of someone who elaborated a theory which deals with "purposive arrangements as if they had no purpose".

> An insistence on attempting to apply the dichotomy of is and ought to purposes seems to me to permeate the thinking of all those who have explicitly rejected the natural law philosophy. Kelsen's whole system is an elaborate effort to deal with purposive arrangements as if they had no purpose.27 His attitude comes plainly to the fore in his discussion of "dynamic" and "static" norms. A norm or rule can for Kelsen be "dynamic" only if it is devoid of material content, only if it is simply a procedural rule defining the sources of law. A rule that says something on its own account, as

(FULLER, 1954, p. 472)Fuller says that a people are, or rather have, an "enormously complicated set of interrelated and interacting purposes" and that this set constitutes his nature.

The sense of natural law that Fuller suggests is one where we start from this system of purposes in order to determine a standard for passing ethical judgements.

> A purpose is, as it were, a segment of a man. The whole man, taken in the round, is an enormously complicated set of interrelated and interacting purposes. This system of purposes constitutes his nature, and it is to this nature that natural law looks in seeking a standard for passing ethical

#### Eunomics --- A Neglected Branch of Jurisprudence
(FULLER, 1954, p. 473)Fuller holds that there are "natural laws" of social order.

> . What I have in mind can best be approached by quoting a hypothetical assertion: "There are natural laws of social orde

(FULLER, 1954, p. 474-475)Fuller thinks that denying this thesis means to accept that, given a given set of social circumstances, society could arranged by any conceivable combination or hierarchy of ends.

There is a lot of ambiguity here, but once we clarify this thesis as a descriptive thesis about social arrangements, why couldn't this be true? Of course, it is true that there that there are natural law of social orders _if_ this is meant as the idea that we have dispositions and cultural and evolutionary heritages

> Does the reader accept or reject this statement? If he rejects it, what does his rejection imply? Does he mean to embrace what might be called the doctrine of the infinite pliability of social arrangements, the view that, given a sufficient agreement on ends or a dictator strong enough to impose his own ends, society can be so arranged as to effectuate (within the limits of its resources) any conceivable combination or hierarchy of ends?

(FULLER, 1954, p. 474)Fuller argues that, in a factory, the objective is to produce goods and that the task of management is to select out the various ways in which this can be done in order to select the best means possible.

This is the sense in which management is concerned with the "natural laws" underlying organization of the management of machines in factories, i.e., in the "searching out the compulsions and opportunities contained in a particular domain of objective reality".

> Obviously the rate of output of the factory will be affected by the manner in which these operations are allocated. The task of management is to select out of the countless ways of making this allocation the one that will produce the best results. Many factors must be reckoned with, involving individual and social psychology, the construction and operation of the human body, avoidance of interference between different workers, etc. But no one would doubt that the task is here that of searching out the compulsions and opportunities contained in a particular domain of objective reality. In this sense, management is concerned with the "natural laws" underlying the organization of machine-tending duties

(FULLER, 1954, p. 475-476)The sense of "natural law" used here by Fuller assumes that (i1) we can choose to adopt one form of social order over another; (2) the adoption of particular forms of social order over another may be better suited to achieve certain ends.

The laws of social order consists in those "compulsions" that are necessarily contained in these various forms of social order.

One could think, however, if this sense of natural law is at all similar to those pursued by other theorists.

> In all the instances just reviewed it is assumed (1) that men can choose to adopt one form of social order or another, (2) that the achievement of particular ends may require the choice of particular forms of order, the available forms being limited in number. All of these studies are directed toward discovering and utilizing what may be called the "laws" of social order. These "laws" are in turn "natural" in the sense that they represent compulsions necessarily contained in certain ways of organizing men's relations with one another

(FULLER, 1954, p. 476)Fuller thinks that sociology is not concerned with those natural laws of social order because this would imply a picture of humans which have a choice and free will, which would be unscientific. Seems pretty questionable, to say the least.

> asons. The reason sociology has not generally directed itself toward problems of the type just reviewed is fairly plain. Most of its practitioners have their hearts set on establishing themselves as "empirical scientists." A scientist is a man who deals with the phenomena he studies as being controlled, not by human choice, but by deterministic laws. A "social scientist" must therefore regard man as an animal whose behavior is determined. But if this is so, it follows that he cannot choose the forms of social order under which he is to live. A study of the implications of any such alleged "choice" among forms of order would therefore be unscientific

(FULLER, 1954, p. 477)Fuller draws attention to the fact that claims about purpose are often made in the law, especially in the case when there is discussion about a given legal draft or the decision of a particular case. That said, not much attention would be paid to purpose in legal theory

> This preoccupation of legal philosophy with litigational issues does not mean, of course, that lawyers are not individually and in their separate fields interested in analyzing the implications that flow from the adoption of particular forms of social order. On the contrary, perceptive comments are written, for example, in criticism of the draftsmanship of treaties, constitutions, and statutes. It is often pointed out how particular provisions have been so framed that they will fail of their purpose or will entail unwanted and unintended results, etc. But by and large this activity is deemed to fall outside the scope of legal philosophy. No attempt is made to bring its scattered manifestations into a common focus, or to search out general principles that will guide choice among the available forms of order

(FULLER, 1954, p. 477)Fuller thinks that this reluctance on theorizing about the many purposes which are involved in law and on theorizing about the appropriate ends to them has to do with an exaggerated reaction against natural law theory.

> What is the reason for this neglect? I can only explain it as an exaggerated reaction against the theory of natural law. Natural law is an unpleasant, discredited, out-moded doctrine; let us, therefore, embrace its opposite. Its opposite teaches that there is no such thing as a "natural law of social order." Society is just what we choose to make it, and the way we shape its inertly pliant forms is guided, not by "laws," but either by "intangible values" or by selfish or class interests

(FULLER, 1954, p. 477)Because of the confusions invited by the term "natural law", fuller proposes that we call this theory about the natural laws of social orders "eunomics", that is, the study of good order and workable arrangements.

Fuller highlights that eunomics is not necessarily committed to "ultimate ends"

> Because of the confusions invited by the term "natural law," I believe we need a new name for the field of study I am here recommending. I suggest the term "eunomics," which may be defined as the science, theory or study of good order and workable arrangements. Eunomics involves no commitment to "ultimate ends"

(FULLER, 1954, p. 478)The primary concern of eunomics is with the relation means-end.

One of the ways in which eunomics brings clarity to the study of ends will lie in the analysis of the avaliable means for achieving theses ends.

> But the primary concern of eunomics is with the means aspect of the means-end relation, and its contribution to the clarification of ends will lie in its analysis of the available means for achieving particular ends

(FULLER, 1954, p. 47847)Fuller argues that natural law theory has much in common with eunomics but that the great mistake of natural law theory was to focus only on the determination of abstract ends and its implications for law, instead of seeing how means and ends are open for a "reciprocal adjustment with respect to each problem".

> There is a common impression that the now unread treatises on natural law that were so much in vogue a hundred and fifty years ago were given over to drawing up immutable codes of moral absolutes. In fact much of their content had to do with what I have here defined as eunomics. This is true, for example, of Ahrens' once enourmously popular *Cour de droit naturel*. The great mistake of the natural law school was, however, not to keep the problem of ends in a sufficiently intimate contact with the problem of means. Instead of holding means and ends open for a reciprocal adjustment with respect to each problem, the writer on natural law was apt to reach abstract resolutions on ends and then to trace out the implications of those resolutions for the various branches of the law.

(FULLER, 1954, p. 479)Fuller exemplifies how discussing whether euthanasia should be legalized requires that we consider the possible means, such as whether "social manageability" of assessing who is eligible to euthanasia.

> I do not think it is otherwise with social arrangements generally. Can I decide euthanasia should be legalized without first considering the social manageability of the task of selecting the right people to put to death ? •Can I opt for equality of income without asking myself how manpower -will be allocated when the inducement of wage differentials is removed? If I seriously explore the problem of means in connection with the problem of equality I may discover that the end of equality contains within itself a latent contradict

(FULLER, 1954, p. 480)Fuller highlights that eunomics is indifferent to _ultimate_ ends in the sense that people may differ as to what should be done regarding the appropriate means and ends to a problem even after carefully deliberating about them.

> In attempting to define a branch of social study that might be called eunomics, I stated that an acceptance of this subject as worthy of pursuit implies no commitment to "ultimate ends." I was careful not to say that eunomics is indifferent to ends. In view of the interaction of means and ends any sharp distinction between a science of means and an ethics of ends is impossible. In leaving the problem of "ultimates" unresolved I meant merely to acknowledge that after a careful study of the interaction of means and ends with respect to a particular problem, men may still differ as to what ought to be done and that eunomics cannot promise to resolve all such differences

(FULLER, 1954, p. 480-481)Fuller cites the example of Popper as someone who accepts the core idea of eunomics that there are natural laws of social order and reject that there are ultimate ends or those set of ends and appropriate means pointed out by natural law theory.

> In stating the case for eunomics I have tried to keep it distinct from the natural law problem first discussed, that is, whether "the nature of man" can furnish a meaningful standard for ethical judgments. One may emphatically reject this standard and yet accept eunomics. This is, indeed, the course taken by Karl Popper, a staunch enemy of the idea of "natural law" or at least of that verbal slogan. Popper acknowledges that there are "important natural laws of social life" and that measures of social reform require "some knowledge of social regularities which impose limitations upon what can be achieved by institutions." 39 At the same time, he sticks faithfully by the dichotomy of is and ought and declares that it is only because they wish to escape responsibility for their own ethical decisions that men find attractive the notion that these decisions are grounded in "nature"

(FULLER, 1954, p. 481)Fuller argues that there is a point of convergence between natural law theory and eunomics, namely in the idea that _if_ there are constancies and regularities which persist through changes in social forms, then this must be because there is a set of constant features in humans which could be called the "nature of man himself".

> ould fall. If there are constancies and regularities that persist through a change in social forms these must reflect some constancy in the nature of man himself. It is at this point that the subject I have called eunomics reaches common ground with the natural law theory of the source of ethical judgements

### THE LEGAL PHILOSOPHY OF GUSTAV RADBRUCH
(FULLER, 1954, p. 483)Fuller mentions how Radbruch already spoke about a notion of natural law based on the idea of "the nature of things" which purported to bridge the gap between fact and value.

> When we compare this summary of Radbruch's views in 1932 with those of the postwar period, we find Radbruch himself writing in 1945 that he had come to apply to law the concept of "the nature of things" and that he had sought in some degree to bridge "the harsh dualism between value and reality, between what is and what ought to be." 50 We # find him endorsing, with cautions and qualifications, the concept of natural law in his first publication after he became again free to speak his mind.5

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FULLER, Lon L. American Legal Philosophy at Mid-Century. **Journal of Legal Education**, v. 6, n. 4, p. 457-485, 1954.