Fuller, Lon L. (1902–1978)

The most renowned American legal theorist in the middle decades of the twentieth century, Lon Luvois Fuller taught contract law and jurisprudence at Harvard Law School from 1939 to his retirement in 1972. He established his place in American letters in the early 1930s with three articles on legal fictions and several probing criticisms of the excesses of legal realism. His work on “the reliance interest,” the doctrine of consideration, and other aspects of contract law established him as one of the most innovative and influential theorists in the field by mid-century. His 1949 hypothetical “Case of the Speluncean Explorers,” an elegant portrayal of rival judicial philosophies, is a classic of the legal literature. In addition, his published exchanges with the Oxford philosopher H. L. A. Hart (in the 1950s and 1960s) set the terms of debate in jurisprudence for many decades.

Although Fuller was deeply versed in European legal scholarship, the principal philosophical influences in his early years were American, especially William James (1842–1910), Morris Cohen (1880–1947), and John Dewey (1859–1952). Cohen's “principle of polarity,” the idea that opposites “involve each other” in any matter of importance, was employed to explore basic and recurring antinomies of law—reason and fiat, fact and value, duty and aspiration. Fuller joined the realists in their search for the latent rules and implicit expectations, the shared purposes and policy choices that shape judicial decisions over time. Nevertheless, he firmly rejected the behaviorist analysis of human action (which omits its purposive [Page 608]aspect), the emotivist analysis of evaluation (which diminishes the place of reason in ethics), and the treatment of law as a value-independent datum or fact. Fuller regarded each of these tenets as elements of legal positivism and rejected them because they distort the relation between law and morality.

Fuller emphasized three intersections of law and morality. The first attends to the moral foundation of law, which rests on citizens' appreciation of the effort to sustain “orderly, fair, and decent” governance over time. A legal order founded more on the threat of force than on allegiance, more on habit than on critical reflection, is that much more vulnerable to collapse.

Second are the moral structures of law. Legal order is constituted by a variety of institutional forms—such as legislation, adjudication, contract, administration, or mediation—that guide the emergence of specific practices in any society and provide patterns for evaluating their success. These models, each of which has a distinctive internal morality, are focal points of human striving; they embody moral aspirations and define moral relationships. For the study of these forms, and the possibilities of their realization, Fuller coined the term eunomics.

Third is the moral end of law, which Fuller took to be not justice but freedom because justice depends crucially on choices actually made by individuals. By freedom, Fuller meant the effective exercise of basic human capacities and powers, which the forms of legal order make possible. Thus, law at its core is a set of institutional “enabling constraints” that facilitate action, especially collective action, when it could not otherwise occur.

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