The law is considered one of the most important building blocks of our society. Modern law covers almost every aspect of life, ranging from the most basic concepts such as the protection of life, health, and private property, to regulating trade, formalizing marriage, and assigning penalties for misconduct. The establishment of laws ended the rule of the strong and created an even playing field for all members of society. However, like everything in our world, laws are not perfect. They have gradually evolved over the years; thus, what seemed right and just in the 17th century may look like a horrible act of oppression by today’s standards.
Many laws are based on the moral views of their own time, which correlates with what is publicly approved and what is not. This, however, creates duplicity in the perception of the laws themselves. Is society expected to follow established laws and obey governmental authority without complaint, or are its members allowed to rebel and defy the laws they perceive as unjust? To answer this question, this paper will review the works of two political philosophers: Emmanuel Kant, who lived in Germany in the 18th century and is considered the father of modern philosophy, and Lon L. Fuller, who lived in the 20th century and is famous for criticizing the concept of legal positivism.
Eight Ways to Fail to Make Law
The essay “Eight Ways to Fail to Make Law” by Lon L. Fuller serves as one of many statements he made against the concept of legal positivism, a theory that states that law and morality are two separate concepts that should not be intertwined. This point of view asserts that all laws are supposed to be obeyed whether they are just or not because morality is a shifting and subjective matter that could not be used as a basis for the creation of law. H. L. A. Hart supported this theory and was a natural opponent to Lon L. Fuller’s beliefs. In his article, Fuller recounts an allegory about a failed king named Rex and his eight attempts to create law, each failing. At the end of the allegory, the writer elaborates on his point of view. His main statement is that for people to have a moral obligation to follow laws, these laws are supposed to (Fuller 93):
- Exist, and not be made upon an ad-hoc basis
- Be publicized so that all interested parties may have access to them
- Be protected from retroactive legislation
- Be understandable
- Be non-contradictory
- Not ask the impossible from either party
- Be static and not change too frequently
- Be followed by everyone all the time
He argues that in the case any of these factors are present in the law, then it is a bad law that can hardly be described as a law, which means that no one is under a moral obligation to follow it.
Emanuel Kant’s Views on Laws
Emanuel Kant’s views towards lawmaking, legislation, and the government are well-illustrated in his political writings, such as the Limits of the State, Critique of Pure Reason, and “Theory and Practice.” The latter explains how the Kantian concept of duty can be applied to a legal system. Duty, according to Kant, is a moral concept that, while not written in any code of laws, is still something that a person is expected to follow, not by force but by conscious choice. At the same time, it is the moral duty of every citizen to obey laws, whether they are just or not. Kant is a decisive opponent of rebellion and revolution as a means of changing a system and undoing corrupt laws.
He states that any violent discontent against laws should be considered the most heinous crime within a state as it destroys the very foundations of that state. In his reasoning, the constitution is a benchmark that should not be altered by force as it would then lose all of its authority and power. He also asserts that even if the authorities are overstepping their boundaries, thus conducting an immoral act, the citizens are still not entitled to offer resistance to the law. Should this happen, Kant insists (Reiss 82), the state would fall, and the order of things would return to Status Naturalis—the natural order, where all rights cease to exist.
In Kant’s opinion, all unalienable rights exist because of the state. Some of the most important rights outlined by the author in “Theory and Practice” include the right to life, the pursuit of happiness, freedom of choice, and the freedom of speech, which is also called the “Freedom of the pen” (Reiss 85). He considers the freedom of the pen the only eligible tool that society could use to change the governing system without destroying it.
Fuller and Kant: Similarities and Differences
Both philosophers agree on the fact that there is a necessary procedural morality to the law that is based on fairness. According to Fuller, if a law adheres to the eight criteria that he enumerated in his article, then the law can be put into practice, and the citizens have a moral obligation to follow it. This is supported by Kant, who states that following laws fall under the concept of the moral duty of an individual to society. While these similarities are present, the two treatises also express a difference of opinion regarding what should be done in this situation.
Although Fuller’s article is relatively short, the majority of his opinions on the matter could be interpreted from how he formulated his allegory. In it, he mentioned that certain measures should be taken to have the king see reason and stop altering the laws. Although these measures would be worded in a way that would be “short of open revolt” (Fuller 93), acts of civil disobedience are not out of the question for Lon L. Fuller, and his statement that no citizen is under a moral obligation to follow a bad or a defunct law stands in opposition to Kant’s theory of moral duty. Kant perceives any act of disobedience to the state as a threat to its absolute authority and legislative powers. Fuller, according to the article presented, does not see disobedience to bad laws as something immoral, nor does he perceive it as a threat to the state. It could be speculated that the author believes defunct laws to be a greater threat to the system than open revolt might be.
Conclusions and Personal Opinion
Ultimately, the disagreement between Kant and Fuller boils down to whether it is moral to disobey laws under any circumstances. Fuller believes that there are instances when a person is not under a moral obligation to obey a defunct law. Kant believes that obeying a defunct law and suffering is the moral duty of every citizen since any sort of violent action against a corrupt government would lead to revolt, which he perceives as a greater evil that will lead in turn to the destruction of the state and potentially greater tragedies than could be brought upon the nation by defunct laws and corrupt leadership.
I believe that while Kant is widely hailed as the father of all modern philosophy, and while his views were advanced for his own time, his perception of morality is still affected by the traditions and concepts that existed during his lifetime. His view of freedom is cautionary, and in his writings, he describes many pitfalls that freedom may entail. In the 21st century, however, freedom is regarded as the most important human right. Many modern constitutions state that a citizen has a legal right to oppose his or her government with arms, should its rule become tyrannical and not adhere to the principles of democracy.
The Second Amendment to the US Constitution can be used as the most famous example. Because of this, I believe that Fuller’s view on the connection between morality and law is stronger. In Kantian politics, morality is subservient to law, whereas, in Fuller’s view, it is the other way around. Both European and American law, at their basic level, are based upon religious teachings and biblical scriptures that mostly concern themselves with moral laws. Thus, morality serves as a basis for law, and dedicating morality to the protection of the law, even though the law is unjust, is a flawed concept.
Fuller, Lon. “Eight Ways to Fail to Make Law.” Philosophy of Law, vol. 6, 2000, pp. 91-94.
Reiss, Hans. Kant’s Political Writings. Cambridge University Press, 1970.