By Anirudh Gotety
Lon Fuller propounded the procedural morality of law. He said that in the presence of certain characteristics in a legal system, the legal system is a morally sound regime. In the absence of even one of these characteristics known as the 8 desiderata, the legal regime fails Fuller’s test of morality.
The desiderata are:
- A system of governance operates through general norms, and all or most of the norms partake of the following properties.
- They are promulgated to the people who are required to comply with them.
- They are prospective rather than retrospective.
- They are understandable rather than hopelessly unintelligible.
- They do not contradict one another and do not impose duties that conflict.
- They do not impose requirements that cannot possibly be fulfilled.
- They persist over substantial periods of time, instead of being changed with disorientating frequency.
- They are generally given effect in accordance with their terms, so that there is congruence between the norms as formulated and the norms as implemented.
Although these basic precepts of legality are never perfectly satisfied by any regime of law, the satisfaction of each of them to a substantial fulfilment of those precepts is the rule of law. The degree to which these desiderata are followed or satisfied by a certain legal regime would determine how moral a legal regime is according to Fuller’s conception of the rule of law.
The Kramer-Simmonds debate revolved around the desiderata and their moral desirability and how an evil regime might use it to forward its own agenda. Kramer and Simmonds debated through a series of articles in the Cambridge Law Journal on the Fuller’s desiderata.
No perfectly rational model could actually satisfy human behaviour. They debated on whether these desiderata actually confer the prerequisite morality on a legal regime that is so desired. Kramer, a self-proclaimed positivist, is of the opinion that it doesn’t as every legal regime has its own selfish prudential reasons to comply with the rule of law to extract maximum compliance from the populace and so on.
Simmonds who is a naturalist has a contradictory opinion inasmuch as he says that every evil regime will make sure that the procedural rule of law isn’t followed in its regime to ensure compliance.
It essentially became a debate about assertions with some analysis into their own arguments. However, we can sufficiently say that neither side has come out a clear winner even though Kramer seems to have the stronger side backed with rationale.
Kramer was of the opinion that departures from the rule of law weaken incentives for compliance with the law. He went on to say that rule of law is morally neutral. Kramer assumes people are motivated to avoid punishment and sanctions. He bases his arguments on these fundamental assumptions which ring true to a rational person.
Simmonds was of the opinion that law serves the values of liberty. Simmonds argued that departures from the rule of law in general do not tend to weaken the citizen’s incentive to comply with a wicked regime’s objectives, so the regime has no particular reason to comply with the rule of law; consequently, incentives for compliance have no particular force.
Why rule of law is inherently moral is because an evil regime will extract obedience from the populace even if it exacts extrajudicial punishments. This because humans aren’t perfectly rational beings. No perfectly rational model could actually satisfy human behaviour.
The case of extra judicial beatings is what Kramer and Simmonds debated the most. Say an evil regime exacts extra judicial beatings, will the populace have the motivation to follow the dictates of the evil regime?
Kramer is of the opinion that they won’t. If a person knows that violence is going to be inflicted on him even if he follows the agenda of the regime, the person has no rational reason to do what is told to him to be done. Whereas if the regime did follow the eight desiderata as prescribed by Fuller, then the people would want to comply with the evil dictate so as to avoid violence inflicted on them. Moreover, this way the evil regime ensures compliance from the populace by exacting violence only on those who don’t comply.
Simmonds is of the contrary opinion. He says that humans don’t behave rationally and compliance is not ensured if the rule of law is followed. When the evil regime runs a reign of fear then the people would want to comply even if there are extra judicial beatings. This is because the human doesn’t behave rationally.
He also says Kramer couldn’t explain why people would want to comply when not complying (where rule of law exists) could ensure that the threat of violence would cease to exist even if it comes at a great cost.
Moreover, he made a pertinent example. He said if there were rules in an evil regime which were in accordance with the rule of law, people dissatisfied with the regime might still partake in actions detrimental to the cause of the evil regime. The example he made was of a salute. Say, if a rule came about that proscribed saluting a commanding officer, then people would mockingly salute the officer which would fall under the rule but its effects would be contradictory to what the regime expected.
The debate cannot be easily settled. There might be good reasons for people not to act against a particular conception of rationality on which the model above is constructed, and which Simmonds’ objection depends. A person might, for example, act against his apparent self-interest in order to mould his behaviour to a pattern he considers more desirable or more in accord with the moral reasons for actions that apply to him.
Can the Moral Status of the Rule of Law Prove the Case Either for the Positivists or the Naturalists
Depending on an individual’s conception of the rule of law, the answer would vary.
Let us look at the first case where the moral status of the rule of law is ambiguous. This is to say that the moral status of the rule of law is neutral. The rule of law as propounded by Fuller can be used equally by both evil regimes as well as benevolent regimes to forward their agenda or not to do so.
We can analyse this argument at two levels. The first level would be where the regimes (regardless of their agenda) would want to use rule of law to forward their agenda. The rule of law and the eight desiderata would be ideal for the citizens of the regime to follow the law and the ideology.
At the second level, as discussed above, both evil and benevolent regimes would have strong convictions to not follow the rule of law. This is because the rule of law can prove to be an unnecessary hurdle to impart whatever it is that the regime wants to do.
Say, if a benevolent regime wanted to introduce mass food subsidies for the poor, would it go through the whole formal process of introducing a bill in the legislature. This would include all the politics and politicking the regime would have to undertake to pass such a scheme. If only they didn’t have to follow this whole tedious process, it would be able to achieve what it wanted much faster.
The rule of law, as it can be observed, is followed by most sovereign states in the world because it makes day to day administration easier and more bureaucratic. This ensures that working is followed by the book and there is no ambiguity or uncertainty when a large number of people are involved in administration of an even larger number of people in state.
The rule of law acts like a check on unnecessary discretion.
The phrase ‘power corrupts and absolute power corrupts absolutely’ is apt while explaining why rule of law is actually in vogue.
Does this morally ambiguous conception of the rule of law prove the case either for the positivists or the naturalists? It’s hard to say. Kramer is of the opinion that a morally ambiguous conception would go on to prove his positivistic hypothesis. This is however problematic.
Rule of law, even if seen as morally ambiguous, has had other underpinnings. This is because of what has been seen throughout history. Every primitive society has evolved (or as some might argue, degenerated) into a formal system of rules (as laid down by Hart). These primitive societies have evolved into a system of legal rules.
It has been observed that rule of law even though not exactly the eight desiderata propounded by Fuller, has come to be seen in all societal systems throughout history (discounting aberrations, of course). It can only be assumed and inferred from these developments that these formal rules have evolved to avoid degeneration of what might have started off as a benevolent regime into an evil one where capricious officials hoard all powers for their benefits.
So, does this prove the case for the positivists? Not really. It is easy for Kramer to say that it is in the interest of an evil regime to follow the rule of law precepts of Fuller. However, if we can’t show that a benevolent regime should use these desiderata in its best interest to ensure compliance, etc., it might be in the best interest of a benevolent regime to not follow them to forward their agenda.
Can we really prove the case for Kramer? This is debatable but hard to prove.
This morally ambiguous conception doesn’t prove the case for the naturalists either. Can we say that these precepts are morally ambiguous and say that there still is some moralistic underpinning to this? This would very well go against the definition of the natural law school.
Kramer and Simmonds stay in a deadlock precisely because human nature, at its core, is unpredictable. Positivists and rationalists put forward some pretty compelling arguments that it was in the best interest of an evil regime to follow these to extract maximum compliance.
The second case here would be where these desiderata do have a moral base on which they sustain themselves. This is Simmonds’ conception of what he thinks the rule of law is. This is what even Lon Fuller seems to have advocated.
Do they really have a moral case? Most societies, as discussed above, have developed rule of law. Whether as a side effect or out of necessity is a question which can be debated. We’ve seen throughout history that people have not followed the dictates of evil regimes.
Even if the evil regime followed a system closely resembling the eight desiderata that Fuller prescribed, people have not always complied. Is this because there is less incentive for them to follow as Simmonds asserts? Or is it because of some innate human tendency to strive for something greater than their own interests, some innate gene for altruism?
It could be said that, at the end, the positivists and naturalists stay in a deadlock precisely because human nature at the core is unpredictable. Unless we see an evil regime apply a rule of law system (even if it’s possible in today’s political scenario), we cannot say that Kramer has definitely succeeded nor can we say that Simmonds has taken it unless we see evidence to the contrary.