Edwards, Fuller and the Rule of Law

Phil Edwards posted a short essay on The Conversation a few days ago in which he articulates his concerns with the Counter-Terrorism and Border Security Bill, the latest piece of counter-terrorism legislation to be brought before Parliament.  This Bill, says Phil, was "justified" by Sajid Javid "as a way of ensuring that 'the police have the powers they need to protect us'".  Now, my hackles are already raised here because of the use of the word "justified" - Javid didn't justify the legislation thus, though he may well have attempted to do so.  To say that he justified it is to concede that his attempt was successful, and since Phil goes on to imply that the thinks that the Bill is open to serious criticism, Javid can't have justified it.  I know that a lot of lawyers use "justify" to mean "attempt to justify", or "defend", as well as... well "justify", but I do think that the distinction is important and worth maintaining.  I think that the lawyer's use of the word opens the door to a whole load of trouble.  After all, if you can't distinguish attempt from success in any enterprise, you're probably screwed.

But I digress... already.  Despite being less than a thousand words long, there's a lot crammed into Phil's piece.  Distilling the essence of the essay, I think that we'd end up with something like this:

1. There are certain "precursor" activities that, though not terroristic in themselves, might nevertheless be subject to prosecution on the basis that they are precursors to terrorist activity.
2. Laws that criminalise precursor activities may be worthy of our disapprobation in their own right.
3. Such laws may be worthy of "second order" disapprobation, on the basis that they are (likely to be) inconsistently applied.
4. This is because inconsistent application of a law is a violation of the Rule of Law.
5. An appeal to Lon Fuller can help us understand the move from (3) to (4).

I want to concentrate here on one aspect - the final one - though there'll be the original shoutout to others.  But, in the spirit of being as candid as possible about my commitments, I suppose it's worth laying out a couple of responses to the parts Phil's argument that I'm going to bracket for now.  Thus, for example, I don't have any problem in principle with the idea of precursor crimes.  There're times when it seems to me perfectly proper to intervene to prevent a risk being realised.  While it's true that there's always a chance that a person planning to commit a crime might stop short of doing so even though fully prepared, it seems reasonable for the law to be concerned about that preparation.  Now, quite how prepared one would have to be in order to be the proper object of legal concern is a further question, and I'm not sure how the law ought to draw the line here.  I'm also not sure that it necessarily has to; setting out too rigid a list of criteria might force juries to convict the plain fantasist, and to acquit the genuine danger, simply because of the way the law has been drafted.

With that said, it is likely that we ought to worry about inconsistent application.  Whether that worry can be soothed, granted the idea that it's desirable to avoid rigid criteria for prosecution and conviction is uncertain.  It might be that the price we pay for desirable flexibility is the risk of inconsistency.  Whether or not that's a price we should pay is not immediately obvious; it needs more in-depth consideration than I can give it here.  Maybe we have to pay attention to the distinction between apparent and actual inconsistency, on the understanding that instances of the former may not be instances of the latter.

One thing that would seem to make the price too high would be an erosion of the Rule of Law tout court.  A world in which nobody can be certain whether and how the law will respond to their actions is a world in which the Rule of Law seems not to obtain: rather, we'd have the Rule of Agents of Law, or Rule of Prosecutors, or Rule of Judges, or something like that.  And this is where Fuller comes in.


Phil states that

[m]any lawyers would argue that the rule of law is simply the situation in which the same laws apply and are enforced equally throughout society, irrespective of whether those laws themselves are good or bad.  However, a stronger case for the rule of law can be made if we follow a school of thought associated with the American legal philosopher Lon Fuller.  In his 1964 work, The Morality of Law, Fuller argued that the coherence of the law as a system is valuable in itself – something he called the “internal morality” of law.

This internal morality can be summed up in three requirements.  The law must be uniform, applying the same rules throughout society; it must be knowable, so that citizens can understand what it requires of them; and it must be followable.  The rule of law therefore means that not only should the law apply to all alike, but also that everyone is able to understand what it requires and to choose to follow it, or break it.

It seems a bit strange to squeeze Fuller's position about the internal morality of law into three points, since Fuller's own eight desiderata are hardly prolix, requiring only that if law senso latu is to be said to exist as something "deserving loyalty", the laws that comprise the system laws must (1) exist, and be (2) published, (3) prospective, (4) intelligible, (5) non-contradictory, (6) possible to comply with, (7) reasonably stable, and (8) followed by officials.

Note that nothing here requires the laws themselves to be worthy of moral praise: Fuller happens to think that wicked regimes will fail to satisfy his desiderata as a matter of course, but that is not analytic (and, I think, likely to be wrong).  Indeed, he himself argued that

If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark.

This is telling, admitting as it does that bad laws can still be laws.  On this note, I think that Phil is smuggling in something that is not present in Fuller, concerning consistent application of laws; I'll flag that now, and return to it in a moment.

So what, then, is the "internal morality" of law, if it's not a measure of the moral desirability of a system of laws?  Simply, I think, that in order to count as law at all, a set of rules must be measured against the desiderata.  In that sense, Hart was correct to profess to be stumped by the soubriquet "inner morality", because Fuller is not making a moral claim in the conventional sense.  His position is not that law ought to be thus-and-so on pain of being thought wicked; rather, it's that it ought to be thus-and-so on pain of turning out not to be law at all.  The "ought" here is, in other words, more conceptual than moral.  It's a bit like saying that when drawing triangles, one ought to be drawing three-sided plain figures.  Anything else just ain't a triangle.

The other important thing to keep in mind is that Fuller's morality of law is a morality of aspiration, not one of duty.  The two approaches to morality are fundamentally different.  The former bases moral criticism in an account of personal failure, rather than breaking a rule; and the failure may be more or less serious - potentially catastrophic.  Hence if someone's attempts at drawing triangles invariably result in four-sided shapes, we don't say that they're an evil geometer; we simply say that they're a poor geometer, or not a geometer at all.  Correspondingly, if a law violates (or numerous laws violate) a desideratum, we might eventually say that the rule of law no longer obtains; but we might just say that it is simply flawed.  And, sometimes, we might not even go that far.  Fuller himself is willing to concede that, at times, it may be forgivable or even desirable to sacrifice one desideratum provided that this sacrifice is limited and exceptional, in order to  correct a deviation from the desiderata elsewhere (see MoL, p 104).  He does not say that if a draftsman notices a violation of the desiderata that would require a retrospective regulation to correct he has discovered that he is not working in a Rule of Law system after all.  And he is correct in that.

This picture only really makes sense if we allow that the inner morality of law is a morality of aspiration rather than one of duty.  It's also perfectly compatible with keeping hold of his claim that a total failure to satisfy any one desideratum results in the putative legal system not qualifying as such at all.  The upshot is that Rule of Law systems aspire to satisfy the desiderata, even though from time to time they may fall short.  If they do fall short, they are flawed; sufficiently sustained failure may mean that putative Rule of Law systems prove to be unworthy of the name.  Yet blips there may be.

(Now, for what it's worth, Fuller does himself fuck up the distinction between the two within a very few sentences of having introduced it in MoL, because he suggests on p 9 that moralities of duty and aspiration are simply at different ends of the same moral yardstick.  But I think we have to treat this passage as aberrant; not only does it make it hard to make sense of his having introduced the distinction at all, but also to make sense of his willingess to forgive aberrations from the desiderata.)

What has this got to do with Phil's claims about the anti-terrorism legislation?

Well, first: return to the concern about the uneven application of the law.  Phil compares the way the law has treated two suspects - one a Muslim, one an EDL member whose actions seem on the face of it to be more worrying - and moves directly to the claim that

[c]ontemporary counter-terrorist legislation is a systematic deviation from the values of the rule of law, which the new bill threatens to entrench. 

From the context, it would appear that the examples offered are supposed to provide evidence for the truth of this claim.  And, indeed, if the two cases really were decided in the way that Phil describes - I don't know: I'll take his word for it - that might be a sign of a deviation from the Rule of Law.  But that doesn't mean that we can say that it is systematic.  It might be a flawed application of the Rule of Law, rather than no such thing at all.

If it is a deviation from the Rule of Law, it is not so - I would contend - on Fullerian grounds.  For while Fuller does say that there must be rules and that those rules must have certain characteristics, he does not say that the law must apply the same rules throughout society: there is no homgeneity desideratum.  A legal system could stipulate that people in category A should be treated like this, and people in category B should be treated like that.  To this extent, I think that Phil is smuggling some "outer" morality into his account of the inner morality of law.  (In a concessive mood, I suppose that there would have to be one grundnorm specifying who belongs to which category in order for the laws to be applicable; but to say that there must be one grundnorm doesn't tell us that the law outside of that must be uniform.)

I agree that uneven application is something to worry about.  But it's not on Fullerian terms - at least, not without more work of the sort that Fuller attempts when he's considering Apartheid South Africa.  But it is extra work that needs to be done; and inasmuch as that I think that Fuller's claims about wicked regimes are not watertight, I'm not sure that we can jump directly from Fuller to more conventionally moral claims about evenness in application.

But even if the stipulations of the Bill, or the way it's likely to be applied, do rub up against the Rule of Law, we don't necessarily have to worry too much about even this if Fuller is our lodestone.  This is because of the distinction between moralities of aspiration and of duty.  If there is no aspiration to apply the law evenly, even granting that there is a ninth desideratum requiring homogeneity that Fuller forgot to include, then there may be grounds to complain about the Bill on Fullerian terms.  But so long as the officials applying the law are at least attempting to apply it in a consistent way, the problem's scale may reduce.  Maybe, of course, officials are too incompetent or mendacious to apply it consistently; but in that case, the problem is systemic, rather than with the particular piece of legislation.

And that gives us reason to wonder whether Fuller missed a trick by not including a ninth desideratum.  It might be that homogeneity is a factor in deciding whether a legal system is "worthy of loyalty" - but, on the other hand, it does seem to be that it'd be qualitatively different from the other eight.  (Again, Fuller's use of words - "worthy of loyalty" - may not help here, because that does imply some kind of evaluation by a standard of outer morality, which is not what he's up to with the conventional 8.)

Whatever the worries one might have with the Counter-Terrorism and Border Security Bill, I'm not immediately sure that Fuller provides the best means to articulate them.