4 Journal of Regulatory Compliance Vol. I
definitions of law, again following Thomas Aquinas. Lon Fuller’s procedures
for legal morality, which he offers in his book The Morality of Law, could be
used as an example of what one means when saying that we have a duty – or
better, a moral obligation – to obey law when it manifests itself as law that is
at least minimally coherent. 3 He says that there is an internal morality to law
merely because of a certain kind of procedural adherence in law-making and
legal-enforcement.4 Explaining these procedures may also illustrate why it is
difficult to speak of a moral obligation to comply with regulation as if it were
merely an extension of the obligation one has to obey the law. By examining
Fuller’s eight procedures below, the divergence between law and regulation
in terms of morality should become more visible. That may leave us with a
few philosophically interesting questions for regulation itself.
Fuller gives what could be described as eight ways that any legal system
can fail procedurally. He says that “[a] total failure in any one of these eight
directions does not simply result in a bad system of law; it results in
something that is not properly called a legal system at all.” 5 The specific
laws that make up said legal system would on his account also fail to remain
law. 6 It is, after all, not likely that a single law could stand on its own and still
meet most definitions of law, certainly not his. (Just try to imagine one.) In
this way the individual laws would fail qua law to obligate us morally.
(Although, they may still morally obligate us by other means, content, for
example.) I offer a revised version of Fuller’s eight procedures in order to
draw a distinction between law and regulation:
1. There must be law existing over time so that adjudication does not
become arbitrary. Just how long a law must exist is not clear, but minutes or
days would seem to be insufficient as a rule. Law cannot be just the current
pronouncements of somebody or some organization that dispenses rules on
an ad hoc basis.
2. Law must be promulgated. It must be published, known or knowable.
It cannot be kept secret or only remain the province of the initiated.
3. Law must be prospective; it cannot be retroactive. This satisfies an old
natural law condition that a crime cannot be committed unless there was a
prior law against it, exemplified in the Latin expressions of legal principle
“nullum crimen sine lege / no crime without a law,” and “nulla poena sine
lege / no penalty without a law”.
3. LON L. FULLER, THE MORALITY OF LAW 21 (2d ed. 1969).