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Luban on Fuller's Canons

By Lawrence Solum

David Luban (Georgetown University Law Center) has posted The Rule of Law and Human Dignity: Reexamining Fuller?s Canons (The Hague Journal on the Rule of Law, Forthcoming) on SSRN. Here is the abstract:

Lon Fuller offered an analysis of the rule of law in the form of eight ?canons? of lawmaking. He argued (1) that these canons constitute a ?procedural natural law?, as distinct from traditional ?substantive? natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity - a ?substantive? result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller?s overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ?in books? and law?s enforcement. However, to succeed such an account must emphasize the lawyer?s counseling role and access to legal services, which Fuller neglects.

Highly recommended.

Full post as published by Legal Theory Blog on May 26, 2010 (boomark / email).