Kant vs. Fuller: Law and Morality


The rule of law is a subject of practical philosophy that has always been of high interest to philosophers willing to arrive at principles of pragmatic governance by either separating empirical applications of sets of rules governing human action from the pursuit of ends valuable in the moral sense or by amalgamating them in structures of varying cohesion. Neither Immanuel Kant, a German philosopher, nor Lon L. Fuller, an American legal philosopher, has been an exception to the trend.

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This paper aims to analyze the philosophers’ views on the relation between law and morality. It will argue that while Fuller’s conception of the rule of law as an instrument for restricting illegal use of power, which is ipso facto instrumentally valuable in bringing the moral component in political relationships, accurately describes principles of congruence that have to be applied by lawmakers to their trade, the Kantian proposition that legislative volitions of rulers have to be limited by principles of morality has more plausibility.


Fuller tells a story of a ruler, Rex, whose unquenchable ambition drives him to exercise his questionable intellectual powers to draft a lex terrae (Fuller 93). In his new capacity as a legislator and a judge, Rex renounces all existing laws in favor of paternalistic legislation that strains the institutional functioning of the country’s legal system to the breaking point. After a couple of successive failures in issuing a coherent set of rules that are subject to his whimsical interpretations of justice, the ruler discovers that he is not capable of capitalizing on his hard-won experience and producing a body of law that can be universally applied (Fuller 93).

The account of Rex’s futile attempts to subject the behavior of people under his political control to the governance of law is used by Fuller as an apt illustration of eight criteria of the adequate rule of law. The failure to follow these criteria “does not simply result in a bad system of law; it results in something that is not properly called a legal system at all” (Fuller 93). It is hard to disagree with Fuller in that no moral obligation to follow the law is applicable in a case in which the law is inconsistent with the patterns of practical reasoning of acting human beings. To better understand Fuller’s criteria for the legal requirements and prohibitions, it is necessary to review these conditions seriatim.

Eight Principles

The first principle that has to be applied to every law is a generality, that is no legal command or injunction can be applied on an ad hoc basis. The second criterion for a legal system is promulgation that makes all precepts generally available for affected parties. The third principle prohibits laws from functioning in a retrospective manner, which undermines “the integrity of rules prospective in effect” (Fuller 93).

The fourth and the most obvious criterion for the rule of law is that all legal codes have to be clear. The enactment of rules that contradict one another is also prohibited along the Fullerian line of reasoning. The next criterion is concerned with the feasibility of legal requirements and emphasizes that for a legal system to become one it should not “require conduct beyond the powers of the affected parties” (Fuller 93). The seventh and eighth principles state that laws have to be moderately constant and congruent with their enactment.

The Analysis of Fuller’s Principles

Fuller argues that if lawmakers do not fail in applying all of these principles to their trade, the resultant legal system will be capable of guiding people’s behavior in certain predictable ways without making them feel resentment. It means that policymakers expecting citizens to show obedience to the law have to be cognizant of procedural morality that is at the base of the legal system of cooperation. However, while Fuller’s deliberation on the rule of law artfully delineates logical boundaries that need not be crossed during the act of setting legal restrictions, it falls short of explaining why morally problematic rules have to be followed.

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Also, the philosopher framework conspicuously lacks injunctions specifying what constitutes a legal precept which, while being consistent with the eight principles, exempts citizens from the moral duty of obedience. For example, even though policies of some rogue states may not have discrepancies between the rule of law and Fuller’s principles, they, nonetheless, undermine the reciprocity between the relationship of the government and its citizens by introducing legislation that is at odds with inalienable rights of law-followers sanctioned by nature itself. Therefore, it can be argued that coercion on the part of the state has to meet certain criteria to be legitimate.

Kant’s View of Justice in Lawmaking

Taking a somewhat ecclesiastical stand, Kant argues that “whatever a people cannot impose upon itself cannot be imposed upon it by the legislator either” (Kant 85). Even though this maxim, which does not originate from Kant, has been adopted and promulgated by numerous religious and philosophical schools, it is not self-sufficient. To understand this point, one should think of paternalistic legislation issued by an authority that does not intend to act tyrannically but prevents people from pursuing their ends through the means that do not hamper other individual’s freedom.

The philosopher agrees with Fuller in that citizens’ fidelity to law is conditional and speaks of a social contract that allows people to “tacitly reserve the right to rebel” (Kant 84). However, unlike Fuller, Kant brings the role of a policymaker’s inclinations into the discussion of the procedural morality of lawmaking. He makes it explicitly clear that a ruler cannot impose their subjective conceptions of happiness on their subjects, thereby denying them freedom (Kant 85).

It can be argued that the denouncement of a paternalistic attitude in the process of lawmaking makes Kantian account of the application of moral value to the rule of law superior to that of Fuller. Moreover, by acknowledging that there “must also be a spirit of freedom in all matters concerning universal human duties” (Kant 85), Kant implicitly reiterates his claim that while happiness is contingent, freedom is universal. A moment’s reflection, however, helps to establish that Fuller’s assertion that a citizen’s duty to obey and their right to engage in a revolution cannot be tested by simple principles, falls short of a sufficiency for a rational framework for a legal system.

It can be said that the administration of a commonwealth cannot rest solely on a frame of mind of a legislator and has to be grounded in universally valid principles. As has been shown by Kant, the application of happiness as a gauge for valid legislation is unfit to become a universal principle. The preservation and promotion of freedom, on the other hand, can become a rightful condition that has to be followed by governments who want to promote the common good objectively.

It means that Kant proposes a stronger argument for the elimination of the subjectivistic conception of the rule of law than Fuller does. Fuller only posits that a citizen does not have a moral duty to follow a law which is either nonexistent, or secret, or retroactive, or unintelligible, or contradictory, or volatile, or impossible to follow, or incongruent (Fuller 93). It is necessary to extend the philosopher’s argument to its logical conclusion and propose that only those laws that propagate morally healthy relationships between the state and its citizens can be legitimately passed.

Even though it is impossible to claim that Fuller’s core principles are too thin in terms of applying substantive constraints on lawmakers, the philosopher establishes a procedural link between law and morality, which is an extremely tenuous connection in the world that is characterized by the lack of a meaningful counteracting force on the part of citizens under tyrannical rule. Therefore, the Kantian view that the state should not ignore the inalienable right of its citizens while enacting legislation deserves more merit.

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The paper has shown that the rule of law cannot be measured against the pragmatic yardstick of the procedural morality proposed by Fuller. The evaluation process has helped to establish that for political relationships between the state and its citizens to flourish, legislative volitions of rulers have to be limited by principles of morality and freedom as has been proposed by Kant.

Works Cited

Fuller, Lon. “Eight Ways to Fail to Make Law.” Philosophy of Law, 6th ed., edited by Joel Feinberg and Jules Coleman, Thompson Learning, 2000, pp. 91-94.

Kant, Immanuel. Kant’s Political Writings. Edited by Hans Reiss, Cambridge University Press, 1970.

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