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26 Law & Phil. 1 (2007)

handle is hein.journals/lwphil26 and id is 1 raw text is: Law and Philosophy (2007) 26: 1-30 © Springer 2007 DOI 10.1007/s10982-006-0006-8 S. VINER FULLER'S CONCEPT OF LAW AND ITS COSMOPOLITAN AIMS (Accepted 13 February 2006) I. INTRODUCTION David Luban's excellent article Natural Law as Professional Ethics: A Reading of Fuller captures much of what Lon Fuller attempts to convey in The Morality of Law (hereinafter TML).1 Specifically, in his article, Luban provides a good explication of the following five important points. First, Fuller thinks that law is an activity. Luban acknowl- edges that Fuller repeatedly states in TML that law is an activity, and more specifically, that it is the enterprise of subjecting human conduct to the governance of rules.2 Sec- ond, Fuller's position differs from other natural law theorists' positions, as well as from a legal positivist's position, e.g. H.L.A. Hart. Luban points out an important difference when he states, Where other writers on all sides of the positivism/ natural law debate understand the phrase 'the morality of law' to refer to the morality of laws, for Fuller it refers to the morality of lawmaking.3 Third, one of Fuller's chief concerns with legal positivism is its top-down or hierarchical approach to law. Fuller criticizes legal positivists numerous times and in numerous ways for mistakenly emphasizing that law is a one-way projection of authority, originating with government and imposing itself 1 Luban (2001); though Luban's article addresses Fuller's view as stated in many writings, in this paper, I am mostly interested in explicating Fuller's views as set forth in the The Morality of Law (hereinafter TML). 2 TML, pp. 106, 115, 122, 129, and 130. 3 Luban (2001, p. 180).

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