EVALUATION OF FULLER’S CONCEPT OF LAW AND MORALITY

CHAPTER ONE

INTRODUCTION

1.1       BACKGROUND OF THE STUDY

This study was ignited as a result of a couple of experiences and observations. The researcher observes that law and morality have a distinctive quality of binding the people based on its operative measures; and thus wonder why people should make laws that disregard morality. At Ojoto in Anambra State of Nigeria, there was a man who was extremely poor that he could not afford a day’s meal for his family; he could not pay for his children’s school and hospital bills. In the midst of all these, he impregnated his wife again. Out of fear that the child to be born would suffer like others, the wife decided to carry out an abortion. It came to the notice of the man and he sued the wife to court. After several debates, the judgment was in favor of the woman on the basis that the man was incapable of taking care of the children. Even though the court judgment was in favor of the woman just because the husband was not able to take care of the family, it was quite obvious that, morally, abortion is not acceptable. That the man cannot take care of his family does not make abortion right. Law and morality are actually separated in this case. Law and morality are meant to guide human actions through its binding principles and should not in any way be discussed independent of the other. Positive laws on the other hand should follow and adhere to the dictates of natural law. It is against this background that St. Thomas Aquinas in his Summa Theologica asserts that human law should not go against the dictates of natural law because natural law is seen as the ultimate law and that any law which goes against the dictates of natural law should not be obeyed and should be declared null and void.

Sometimes, people do not understand what should be morally and legally binding respectively. They value the rightness or wrongness of an action on the basis of the fact that their friend does it or does not do it. To succeed in making laws that should guide actions, it should be geared towards the wellbeing of the individual the law is meant for. The moral wellbeing of the individual should be the priority of any law maker or legislation and that is the point of departure of the American legal philosopher Lon L. Fuller on his idea of the necessary connection between law and morality.

Fuller, in his major book The Morality of Law set out what he calls the eight “desiderata” which every legal system should possess. The word “desiderata” is an Italian word to mean the “desired”, that is to say, Fuller used the eight “desiderata” to express the principles which a legal system should apply to make a sustainable society. These principles (Desiderata) include:

• Laws must be general
• They must be promulgated, i.e., published
• It must not be retroactive
• To achieve their objectives, laws must be clear, obscure and incoherent legislation can make legality unattainable
• Laws must be non contradictory
• laws requiring the impossible should not be enacted, the laws or legislation should not impose requirements, which its subjects are incapable of.
• To command the impossible is inconsistent with the enterprise of law; consistencies of law are commendable because too frequent change in law diminishes its effectiveness.
• There should be congruence between official action and declared rule. Officials must themselves comply with rules they announce and administer.¹

Fuller also distinguished between the two moralities (morality of aspiration and morality of duty). The two moralities are incorporated with the eight principles to make up what he called   “the inner morality of law” which he saw as part of natural law. For him, law necessarily fulfills certain moral requirements and these moral requirements are the inner morality as articulated in the eight “Desiderata”. There should be an attitude of moral commitment on the part of the people that apply it in their everyday life. Misapplication of the above theory of Fuller in the making of the laws of the society manifests itself in poor education, disregards for legal, religious, and moral obligations. These principles are seen as goods which will help if applied appropriately in making of laws of any society. That is to say, for a law to be morally and legally binding, it must be to the standard enumerated in the eight principles which is contained in the inner morality of law.

1.2    STATEMENT OF THE PROBLEM

For Fuller, those mentioned eight principles are the only criteria for any legal system to meet before it could be accredited as an ideal legal system. The problem is:

1.How far do Fuller’s eight “desiderata” argue for necessary connection between law and morality?

1. Is it only through the inner morality of law of Lon. L Fuller that the necessary connection of law and morality can be achieved?
2. Can the ideal legal system of Fuller be obtainable in the 21^st century court in Nigeria?

1.3   PURPOSE OF THE STUDY

The study was designed to:

• Explore the intricate relationship between law and morality, and understand how the eight principles of Fuller found it necessary to distinguish morality of duty from the morality of aspiration. It will also help us
• To identify, if any, the weaknesses of Fuller’s theoretical framework that made possible the “connection” between law and morality.
• Also consider the possible positive implications of Fuller’s concept of an “Ideal legal system” on 21^st century Nigeria and the world court.

1.4  SIGNIFICANCE OF THE STUDY

It is expected that at the end of this research, the reader will be able:

• To identify the eight desiderata as enunciated by Lon. L Fuller, Proper interpretation and clarification of the eight principles are values which will help in the development of every society if properly applied, therefore leaders, legislations, the executives and the led alike should accord them priority,
• These eight principles are essential because the inculcation and application of them will help in enacting the law for the communities and the society at large.,
• Also the research will help us in identifying and sieving out any principle or principles that will lead to the failure of any legal system, and then correct them with the eight “desiderata” for effective growth and development of all in the community.

1.5 THE SCOPE OF THE STUDY                     

The research is limited to the views and teachings of the notable legal philosopher Lon Luvois Fuller. He advocated for the necessary connection between law and morality. His understanding of the necessary connection between law and morality influenced his natural law theory and he criticized the position of the necessary separation of law and morality. It is in his natural law theory that the eight “desiderata” are incorporated. These eight “desiderata” determine the legal code of every society. The work also delved into the criticisms of other legal theorists that have the same view and contradictory view of his point of departure. The philosophers discussed in this research work include H. L. A. Hart, John Finnis, Ronald Dwokin, Jeremy Bentham, Hans Kelsen etc. there will be a historical journey that places Lon L. Fuller within the environment of his philosophical ancestors.

1.6       RESEARCH METHODOLOGY

The methodology of this dissertation is both expository and analytical. It is expository in the sense that great effort was made to understand the thoughts of Fuller on the issue treated within the framework of his philosophical influences. The work is analytical in that the research goes beyond a descriptive study of Fuller to clarify, interpret and link his ideas as to show how they underscore the basis of sustainable legal system and human development in general.

This philosophical dissertation draws mainly from the work of Fuller, and for other library materials/ internet sources that are directly or indirectly related to the theme of our study.

ENDNOTES

1)  F. O. C. Njoku, Studies in Jurisprudence: A Fundamental Approach to the Philosophy of Law (Owerri: Claretian Institute of Philosophy Maryland, 2007), 205.