The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

From My Commonplace Book, No. 5

Lon Fuller on the rule of law


[Earlier posts in this series: No. 1 / No. 2 / No. 3 / No. 4]

From Lon Fuller, "The Principles of Social Order":

My final conclusion is that, like many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, multiplying and strengthening the bonds of reciprocity among nations. When this has occurred—or rather as this occurs—the law can act as a kind of midwife—or, to change the figure, the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow and to grow properly. Our task is to make them want this.

I'm a huge Lon Fuller fan; if you are unfamiliar with his work, I would start with "The Morality of Law," which is, in my opinion, one of the truly great works of legal theory. The above quotation, from an essay on international law, packs a lot of interesting ideas into a short and rather brilliantly-phrased paragraph: that many "precious human goals" can best be achieved by a kind of misdirection, or averted vision; that the law is like a gardener pruning a tree "to help the tree realize its own capacity for perfection"; and that "our task" is to help "all concerned" to "genuinely want" it to reach that state.