Fuller, Lon. The Morality of Law. New Haven: Yale University Press, 1969.
We live in a world increasingly bound in ever tightening webs of legal restriction. International economic agreements have tended to limit the force of domestic laws, especially those enacted to preserve environmental resources. Faced with an unapproachable, unelected and unaccountable cabal of transnational monetary committees whose decisions have enormous consequences for American economic and ecological stability, many are taking to the keyboards and to the streets to protest what may truly be called the new world order. The WTO, the IMF and the World Bank routinely back other nations’ environmentally unsound practices over American protections in the name of “free trade”, which everywhere and at all times may be translated as “corporate profiteering.” A recent example: when Thai shrimp were blocked from importation into the US because of Thailand’s refusal to require its shrimping fleet to use sea turtle excluder devices (TEDs)—thereby creating an unfair advantage over American shrimpers who use TEDs—the WTO’s legal wing ruled for Thailand simply because pro-environmental statutes blocked the freedom of traders to maximize their gains. Statutes like the Endangered Species Act and the National Environmental Policy Act were enacted by one of the few countries in the world whose political philosophy recognizes to any degree the right of nonhuman life to exist, and countries who do not share such ideals as dolphin-safe tuna are using the foreign entanglements of these economic pacts to limit and subvert our environmental protections.
Law is relative … those who make the law do so for their own reasons, typically for their own gain, and in political societies that lack the shielding bedrock of an enforced constitution any number of revisions can be made to restrict previously accepted freedoms. The current plague of international economic laws that destabilize any hope of domestic environmental sustainability were constructed soley for the financial sake of private or public corporate bodies, and benefit only First World holders of large-scale capital and the workers of the Third World who stand to gain from the closure of American factories, mills and farms. Evidence of the loosing end may be seen in the abandoned pear orchards of Oregon, the devastated fisheries of New England, and the closed textile mills of North Carolina.
Professor Fuller’s book was written long before the most egregious of these economic commitments were signed, but his theories praising the righteousness of conformity and the (falsely) benevolent structure of legal process continue to be called upon to suppress dissident concerns about our current path. This book also confirms one of my long-held suspicions about Ivy League academia. The notion that what the student is experiencing must appear to be Higher Learning is continually propounded through a never ending insistence on oleaginous phraseology, suffocatingly abstruse analogy, and a snide implied insistence on the reader’s fluency in Latin, Greek, French, and the favored tongue of these muddled medieval mindsets, German (“Es kann somit bloss ein Rechtsinhaltsprinzip sein, das die rückwirkende Kraft von Rechtsnormen aussschiesst, nicht ein Voraussetzunsprinzip.” Juristische Grundlehre). The lack of ease experienced by the reader in plowing through the text seems to confere to the sequestered scholar a corresponding sense of satisfaction, as if keeping the public at arms’ length from the intellectual banquet is the only way to preserve the flawless purity of the ivory tower.
Nonetheless, while struggling through the musty entrails of this tome (a mere 253 pages; it feels much heavier), I almost against my will stumbled across a few sentences that, read outside the text and context of the previous dozen lines, made a dim kind of sense. Indeed, when perused in snatches and bits, like a Gideon’s Bible, The Morality of Law is seen to make some rather interesting claims. One example deals with aspects of positive law, and contains the statement (hardly an opinion, in Fuller’s terminology, but an engraved and immortal fact) that while “(m)ost theories of law either explicitly assert, or tacitly assume, that a distinguishing mark of law consists in the use of coercion or force ... (t)hat distinguishing mark is not recognized by (Fuller).” Dr Fuller claims that the following definition of law is insufficient in “seeking to identify the distinctive ‘legal’ element among the various forms of social order that make up a primitive society: ‘A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting.’”
Professor Fuller then goes on to lament that “(l)egal philosophy has paid a heavy price for this abstraction,” the marble halls of the great academies of Western Jurisprudence ringing with the voices of institutional apologists as they struggle to keep themselves relevant in the face of a growing public disillusionment with an accelerating series of legal limits on environmental protection and human rights. Rather than give rise to the agonized reappraisals such an public outcry would seem to call for, professional defenders of the status quo like Dr Fuller work hammer and tong to force their obsolete ideologies down the throats of a restless citizenry. As anyone with eyes sufficiently undimmed by too much time watching the corporate media can plainly see, the American people, starting five years or more before this volume was first published, have come to the realization that blind allegiance to the consecrated power order is a sucker’s game; that the roots of power in this country no longer flow downward to the vast majority, but straight up to the entrenched financial elite and their indebted political flunkies. Questioning this hierarchy on the grounds of social or environmental justice will be met with opposition, even official violence, and anyone who has reservations about this admittedly bare declaration should try challenging it sometime. As a departed social critic and patriot once noted: “That broad fellow over there in the blue suit, with club and revolver, is not here merely to watch us … He means force. If I object to force I will be arrested. If I object to arrest I will be clubbed. If I defend myself against clubbing I will be shot. These procedures are known as the Rule of Law.”
Taken out of the dusty haze of academic nebulosity—where anything in today’s postmodern realm of relativism is and/or should be possible—and set in the streets and sidewalks of our nervous nation, the above mentioned Rule of Law begins to assume more concrete proportions. Of course, those who continually conform to the Law should have nothing to fear in its enforcement, just as those with nothing to hide should have no objection to being perpetually monitored (an implied belief of the White House in our security-obsessed post-9/11 nation). What Dr Fuller fails to take into account is the perception, growing among the young, the desperate, and the disenfranchised, that many human needs, including the perpetuation of the natural world in a relatively non-mutilated state, are being sacrificed for the enrichment of the few, through an authoritarian interpretation of legal procedure, and that the law fails to take this persistent denial of human nature and of “natural rights” into account.
Year after year the urgency for a full-scale reassessment of our economic, legal, political, and spiritual direction grows more imperative, while the defenders of the ancien régime sound increasingly like schizophrenic Know Nothings when faced with the potential subversion of their long-established worldview. What good are the Four Freedoms, really, without open spaces? Exactly… and what good to our selves and our souls is a self-perpetuating, reactionary, violently paranoid fortification of power that relies on the continued subjugation and destruction of the natural world for its sustenance? And whose final realization of mastery over the land would bring absolute slavery to animals human and nonhuman alike? What is absolutely demanded, Professor Fuller, in these foreboding days of despair and ecological degradation, is an evolutionary expansion or reworking of the current system of law and ethics to fit the realities of the present era. If we humans have the physical and mental capacity to ravage an entire planet, perhaps it is possible to speed the parallel development of our morality to bring about a realization in our collective ethos of the actual consequences of our collective acts. Heedless anthropocentricism and the reactionary defense of a hopelessly obsolescent worldview can only serve to exacerbate the suffering of our one Earth.
We live in a world increasingly bound in ever tightening webs of legal restriction. International economic agreements have tended to limit the force of domestic laws, especially those enacted to preserve environmental resources. Faced with an unapproachable, unelected and unaccountable cabal of transnational monetary committees whose decisions have enormous consequences for American economic and ecological stability, many are taking to the keyboards and to the streets to protest what may truly be called the new world order. The WTO, the IMF and the World Bank routinely back other nations’ environmentally unsound practices over American protections in the name of “free trade”, which everywhere and at all times may be translated as “corporate profiteering.” A recent example: when Thai shrimp were blocked from importation into the US because of Thailand’s refusal to require its shrimping fleet to use sea turtle excluder devices (TEDs)—thereby creating an unfair advantage over American shrimpers who use TEDs—the WTO’s legal wing ruled for Thailand simply because pro-environmental statutes blocked the freedom of traders to maximize their gains. Statutes like the Endangered Species Act and the National Environmental Policy Act were enacted by one of the few countries in the world whose political philosophy recognizes to any degree the right of nonhuman life to exist, and countries who do not share such ideals as dolphin-safe tuna are using the foreign entanglements of these economic pacts to limit and subvert our environmental protections.
Law is relative … those who make the law do so for their own reasons, typically for their own gain, and in political societies that lack the shielding bedrock of an enforced constitution any number of revisions can be made to restrict previously accepted freedoms. The current plague of international economic laws that destabilize any hope of domestic environmental sustainability were constructed soley for the financial sake of private or public corporate bodies, and benefit only First World holders of large-scale capital and the workers of the Third World who stand to gain from the closure of American factories, mills and farms. Evidence of the loosing end may be seen in the abandoned pear orchards of Oregon, the devastated fisheries of New England, and the closed textile mills of North Carolina.
Professor Fuller’s book was written long before the most egregious of these economic commitments were signed, but his theories praising the righteousness of conformity and the (falsely) benevolent structure of legal process continue to be called upon to suppress dissident concerns about our current path. This book also confirms one of my long-held suspicions about Ivy League academia. The notion that what the student is experiencing must appear to be Higher Learning is continually propounded through a never ending insistence on oleaginous phraseology, suffocatingly abstruse analogy, and a snide implied insistence on the reader’s fluency in Latin, Greek, French, and the favored tongue of these muddled medieval mindsets, German (“Es kann somit bloss ein Rechtsinhaltsprinzip sein, das die rückwirkende Kraft von Rechtsnormen aussschiesst, nicht ein Voraussetzunsprinzip.” Juristische Grundlehre). The lack of ease experienced by the reader in plowing through the text seems to confere to the sequestered scholar a corresponding sense of satisfaction, as if keeping the public at arms’ length from the intellectual banquet is the only way to preserve the flawless purity of the ivory tower.
Nonetheless, while struggling through the musty entrails of this tome (a mere 253 pages; it feels much heavier), I almost against my will stumbled across a few sentences that, read outside the text and context of the previous dozen lines, made a dim kind of sense. Indeed, when perused in snatches and bits, like a Gideon’s Bible, The Morality of Law is seen to make some rather interesting claims. One example deals with aspects of positive law, and contains the statement (hardly an opinion, in Fuller’s terminology, but an engraved and immortal fact) that while “(m)ost theories of law either explicitly assert, or tacitly assume, that a distinguishing mark of law consists in the use of coercion or force ... (t)hat distinguishing mark is not recognized by (Fuller).” Dr Fuller claims that the following definition of law is insufficient in “seeking to identify the distinctive ‘legal’ element among the various forms of social order that make up a primitive society: ‘A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting.’”
Professor Fuller then goes on to lament that “(l)egal philosophy has paid a heavy price for this abstraction,” the marble halls of the great academies of Western Jurisprudence ringing with the voices of institutional apologists as they struggle to keep themselves relevant in the face of a growing public disillusionment with an accelerating series of legal limits on environmental protection and human rights. Rather than give rise to the agonized reappraisals such an public outcry would seem to call for, professional defenders of the status quo like Dr Fuller work hammer and tong to force their obsolete ideologies down the throats of a restless citizenry. As anyone with eyes sufficiently undimmed by too much time watching the corporate media can plainly see, the American people, starting five years or more before this volume was first published, have come to the realization that blind allegiance to the consecrated power order is a sucker’s game; that the roots of power in this country no longer flow downward to the vast majority, but straight up to the entrenched financial elite and their indebted political flunkies. Questioning this hierarchy on the grounds of social or environmental justice will be met with opposition, even official violence, and anyone who has reservations about this admittedly bare declaration should try challenging it sometime. As a departed social critic and patriot once noted: “That broad fellow over there in the blue suit, with club and revolver, is not here merely to watch us … He means force. If I object to force I will be arrested. If I object to arrest I will be clubbed. If I defend myself against clubbing I will be shot. These procedures are known as the Rule of Law.”
Taken out of the dusty haze of academic nebulosity—where anything in today’s postmodern realm of relativism is and/or should be possible—and set in the streets and sidewalks of our nervous nation, the above mentioned Rule of Law begins to assume more concrete proportions. Of course, those who continually conform to the Law should have nothing to fear in its enforcement, just as those with nothing to hide should have no objection to being perpetually monitored (an implied belief of the White House in our security-obsessed post-9/11 nation). What Dr Fuller fails to take into account is the perception, growing among the young, the desperate, and the disenfranchised, that many human needs, including the perpetuation of the natural world in a relatively non-mutilated state, are being sacrificed for the enrichment of the few, through an authoritarian interpretation of legal procedure, and that the law fails to take this persistent denial of human nature and of “natural rights” into account.
Year after year the urgency for a full-scale reassessment of our economic, legal, political, and spiritual direction grows more imperative, while the defenders of the ancien régime sound increasingly like schizophrenic Know Nothings when faced with the potential subversion of their long-established worldview. What good are the Four Freedoms, really, without open spaces? Exactly… and what good to our selves and our souls is a self-perpetuating, reactionary, violently paranoid fortification of power that relies on the continued subjugation and destruction of the natural world for its sustenance? And whose final realization of mastery over the land would bring absolute slavery to animals human and nonhuman alike? What is absolutely demanded, Professor Fuller, in these foreboding days of despair and ecological degradation, is an evolutionary expansion or reworking of the current system of law and ethics to fit the realities of the present era. If we humans have the physical and mental capacity to ravage an entire planet, perhaps it is possible to speed the parallel development of our morality to bring about a realization in our collective ethos of the actual consequences of our collective acts. Heedless anthropocentricism and the reactionary defense of a hopelessly obsolescent worldview can only serve to exacerbate the suffering of our one Earth.
