Fuller vs. the American Legal Realists: An Intervention

Abstract

Some few years ago a distinguished literary critic, confronted with the conversion of many of his friends to the Communist faith, tried to put himself in the place of the educated Greek or Roman "who discovered with amazement that his most intimate friends were turning" to that "strange new delusion," Christianity. To the many law students who have drawn inspiration from the hardy and sophisticated realism of some of Professor Lon Fuller's earlier writings must be recommended a similar imaginative, propaedeutic exercise if they are to hope to avoid bewilderment and maintain equanimity when confronted with this latest, and most ambitious, of that quondam skeptic's essays in Jurisprudence. The paradox and mystery of The Law in Quest of Itself is not confined to its title. Designed to rescue a sterile contemporary American legal scholarship from the inhibiting influence of an "unseasonably positivistic" philosophy and, thereby, to encourage a "philosophic reexamination of basic premises" and a "more direct recourse to social and ethical desiderata," this astonishing little book seeks to achieve such specified ends by redefining "law" as a diaphanous confusion of is and ought. No small task this for a definition, whatever the definition and whatever the faith! The choice which we all—judges, lawyers, teachers, and students (and legislators and administrators?)—have to make, the choice which determines how we will spend our working days, is, as Professor Fuller sees and poses it, between "natural law" and "positivism." For him, however, this is really no choice at all; and what he offers the rest of us is equally a Hobson's choice: attacking and rejecting "positivism" as impossible nonsense, he goes off the deep end for "natural law." It becomes important, therefore, to try to determine what he means by these two highly ambiguous symbols and where his meaning, if ascertainable, will lead us. His general theory of "the meaning of meaning," of the relation between verbal and non-verbal events, may also become an inescapable subject of inquiry.