on January 27, 2002
The ultimate justification for the topics covered in this book might be that it recognizes certain disagreements about how law ought to be applied, that certain questions might be raised with any authority that seeks to apply laws in a manner which, according to Lon Fuller, seems to violate "practical wisdom applied to problems that may broadly be called those of social architecture. St. Thomas Aquinas stands for many as a kind of symbol of all that is dogmatic and theological in the tradition of natural law. Yet as one writer has recently pointed out, Aquinas in some measure recognized and dealt with all eight of the principles of legality discussed in my second chapter." (pp. 241-2). If anything, trying to impose morality on an enterprise as quixotic as the law is more likely to meet with indifference today than ever, and already in Chapter IV of this book, Fuller admitted that scholars could mean him when discussing "Law and Morals" and complaining: "Again, if this is what the necessary connexion of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity." (p. 154). Just thinking about very great iniquity reminds me of what most people think prosecutors are for, and in the interest of harmony in the marketplace, I will make no further comments on this book. If only the law could always be so lucky.
on April 30, 2011
It is difficult for me to deal with abstract conflicts on a theoretical level when I lack success in the kind of humor that appeals to me more than Fuller's attempt to wrap himself in the mantle of righteousness as he considers law as an interactive enterprise trying to create a context in which independent actors can go about their business without having to do anything about $14 trillion dollars that has already been spent. The Preface to the Second Edition, dated May 1, 1969, just a month before I went to Vietnam, was prepared during the year that I would have remained in Professor Fuller's Contracts class at Harvard Law School if I had not been drafted in Novcember, 1968. The fifth chapter, A Reply to Critics, prepared at that time, might as well give up trying to "trace the consequences of a particular action through the fabric of society unless that fabric itself preserves some measure of integrity." (p. 238). The monetary circumstances keep giving away any case that would be moral in outlook. As Fuller claims:
one can imagine a lunatic
erupting on the scene and demanding to know
where his intended victim is hiding (pp. 239-240)
like Jack Ruby shooting Lee Harvey Oswald in the basement of the Dallas Police Station, if I recall November, 1963, as well as millions of Americans watching a TV network as it was showing the aftermath of the JFK assassination for those who expected to see some legal consequences of an action that changed the nature of the government within the Constitutional limits on the official actions of elected officials.
A real shift in psychology noticed by Fuller:
In sociology and legal anthropology
there is a discernable trend
away from structural theories
and toward a study of interactional processes;
I am told a similar shift has taken place
during the last fifteen years in psychiatry
and psychoanalysis. As for the law, . . .
In this new climate of opinion,
there is no longer any need to apologize for being
critical of positivism,
nor does one run any serious risk
that a rejection of positivism will be taken
to imply a pretension that one has established contact
with Absolute Truth. (p. 241).