A.G. Harmon, Associate Dean of Bench and Bar Programs and Clinical Professor of Law at Catholic Law, recently published an article in the Washington University Jurisprudence Review titled "“Declaring Law”: A Pragmatic Analysis of Law as Communication and Its Implications for the Hart-Fuller Debate." Below is the abstract, and you can read the full article by clicking here.

Abstract

In his 1964 work The Morality of Law, legal philosopher Lon Fuller famously—and controversially—posited eight “legal principles,” arguing that they were constitutive of a “internal morality of law.” For law to be law, rules had to be: (1) sufficiently general; (2) publicly promulgated; (3) prospective in application; (4) clear/intelligible, (5) non-contradictory, (6) relatively stable or constant; (7) possible to observe; and (8) administered in a manner consistent with their purpose (collectively, “Fuller’s Eight”). The principles were made in the context of a larger debate conducted in Harvard Law Review between Fuller, from the camp of the “secular natural law”—law as disclosed through human reason rather than divine revelation—and English legal scholar H.L.A. Hart, a legal positivist. The conversation continued both before and after The Morality of the Law’s publication as Fuller found himself at odds with a number of Hart’s fellow positivists, who objected to what they considered an unfounded and obfuscating confusion of law and morals. Fuller engaged in a back-and-forth with these critics for the rest of his career, refuting their points and explaining how they misunderstood or mischaracterized him, all the while refining the thrust of his contention. At the crux of the differences between Fuller and his critics is a divergent conception of the legal context. Fuller saw law as a reciprocal enterprise between the lawgiver and the governed, a larger environment of concern than that which interested the positivists. For Fuller, a failure to meet his principles would either completely, or to a degree, result in a failure of the law’s purpose. Recast in the terms of a communicative exchange, the failure could amount to “not saying anything at all.” By looking at Fuller’s Eight through the lens of linguistic pragmatics and the field of ordinary language philosophy that utilized it so fully, this article will trace what the principles demonstrate about the parameters of legal communication.