4. Law must be understandable; namely, not unintelligible or needlessly
difficult or impossible to understand, and not obscure; neither can its content
be so great that one could scarcely hope to learn it (a single law of 500 pages
would similarly seem to fail on this account).
5. Law cannot be illogical, contradictory, or present internal legal
dilemmas. Laws allowing and forbidding marriage, or requiring and
forbidding payment of certain taxes, would fail this test. In the latter case, it
would be impossible not to break the law; in the former case, what is
permitted is forbidden.
6. Law cannot require impossible things, be they physical, material or
psychological. For example, a law that forbade coughing in public, required
taxes that are beyond the means of any known citizen, or required each person
to speak a personal language. There is another old natural law principle
standing here: “Ou ght implies can.”
7. Law must be stable over time, so that laws cannot be altered too
rapidly. One can imagine a weekly revision of law that fails this test.
8. Laws must be enforced, and enforced as promulgated, rather than
ignored or inconsistently enforced. There should not be much divergence
between adjudication or administration of law and the law as promulgated. 7
With these eight directions, “[g]overnment says to the citizen in effect,
‘These are the rules we expect you to follow. If you follow them, you have
our assurance that they are the rules that will be applied to your conduct.’” 8
Regulation, at least as practiced, would seem commonly to fail on at least
points 1, 2, 3, 4, 7, and 8 with the consequences that Fuller argues for legality
and moral obligation. Whether that is endemic to regulation or a fact of its
contemporary implementation, I could not say without further investigation.
Now, two parts are material to the question of moral obligation: one is
particular to law, and is procedural (Fuller’s focus), and the other is more
general and content-based. I am assuming with Thomas Aquinas that the
content of anything properly called law cannot be manifestly wicked.
Moreover, positive law is not law merely because it descends from “he whose
will no other human will can negate”, viz., the sovereign. 9 These two
considerations can be assumed of regulation, even if it fails any one of
Fuller’s eight points, and they provide inroads for moral obligation. But they
7. Id. Outside of total non-cognizance of law by judges, what is considered “too much”
divergence would need to be determined locally.
8. Id. at 21–22.
9. This is a paraphrase of a definition that Samuel Pufendorf flirts within SAMUEL VON
PUFENDORF, ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW passim (James
Tully ed., 1991) (1673).
