1 March 2014

Still Vibrant at Forty-Six: Fuller's Anatomy

Anatomy of the Law by Lon L Fuller (pp 174, Penguin 1971)

Anatomy of the Law is a mere 174 pages but every leaf, except a few for miscellany, is packed with tight analysis. It is a little book with a lot to say. Although this review does not compare Lon Fuller’s with other legal philosophy, this work sits with the best--a tiny titan in a vigorously strong class.

1. Structure

The book is split into two parts. The first explores issues spread throughout law. The second explores law’s sources. A noteworthy structural point is one that may not be obvious until reaching the final pages: Fuller rejects traditional categories.

In the first part this results in a fluid rendition of law’s approach to social issues, subsequent problems, and his critical observations. This avoids for example demarcated legal analyses according to torts etc. In the second part Fuller writes a lucid analysis that blossoms because his position is already separated from the earlier rejected categories. The final product thus illuminates legal theory originally.

2. Content

2.1 Part One

Fuller covers many topics. He is unafraid to link disparate ideas. As such, his overarching structure ensures that a continuous theme emerges. He uses whatever eclectic subject matter best clarifies his thoughts. For example he shows public impressions about law-making and adjudication can rely on flawed political conceptions that simply do not transpose to law (p 23–30). He discusses this idea to help explain the judiciary’s relationship with the legislature.

He illustrates the relationship with an example: a bribed judge causes havoc (p 24–5). The corruption affects society in unforeseeable ways. People rely on judicial decisions and make or lose livelihoods based on that reliance. After a legal rot is found it is difficult to find all the influence’s tendrils. The response is never so straight forward as editing the wrongly made law. Even without the bribe, the outcome might have been the same. So what happens to all the innocents living according to the law the bribery made?

A problem then arises because some politicians misunderstand this but still base campaigns on ‘solutions’. Elected politicians join the legislature and a friction is created between those who make the law and those who apply it. Even this summary inappropriately represents what it is to ‘make’ and ‘apply’ law.

2.2 Part Two

Fuller later elucidates that unstable representation. Recall that his initial position rejects traditional boundaries. He continues this in the second part, where he begins unconcerned about positive and natural law. From his withdrawn place he can discuss how law is made without restrictions others impose with their answers to the question, What is law?

Fuller returns to the bribed-judge in part two. He shows retrospective laws are often unacceptable. For example they might facilitate prosecutions for actions that were not criminal when committed. Nonetheless, such laws may provide the only medicine for such abuses: a prospective law (one that comes into force sometime in the future) may not effectively help the people who already suffered from the corruption (p 92). That is, to resolve the compromised-judge’s wrongs, a statute must fix every findable manifestation and consequence of the wrong. This means interfering with innocent people who relied on the wrong sometime between its origin and any remedy. Constitutional law should therefore not ban retrospective legislation, but the alternative is to imply support for it, and therefore to consolidate abuses. This is just one limitation of law-making in the multi-headed scheme Fuller devises.

3. Conclusion

Anatomy of the Law is slightly outdated. In this instance, however, that only means new sources are not examined. It does not mean that new law has rendered Fuller’s analysis obsolete. Sometimes that happens. But not here. Fuller’s observations are still relevant more than forty years later.

Few legal texts are so premonitory. Those which are, get labelled classics. This book belongs on an eternalised shelf with Jeremy Bentham, William Blackstone, and Oliver Wendell Holmes Jr. There are other deserving authors, and more praise to shower Fuller with, but a list is no way to end a review, which can only be so long.

I finish, then, with four final thoughts. Read this as a prospective law student. Or read it in law school. Read it after graduation if time runs out. Read it if you are part of the electorate.

Created: 7 February 2014. Version 1.0.

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