Jurisprudence

An International Journal of Legal and Political Thought

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Why the law is what it ought to be

T. R. S. Allan

To cite this article: T. R. S. Allan (2020) Why the law is what it ought to be, Jurisprudence, 11:4,
574-596, DOI: 10.1080/20403313.2020.1782596
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JURISPRUDENCE
2020, VOL. 11, NO. 4, 574–596
https://doi.org/10.1080/20403313.2020.1782596

Why the law is what it ought to be

T. R. S. Allan
Faculty of Law, University of Cambridge, Cambridge, UK

ABSTRACT KEYWORDS
When legal practice satisfies certain modest conditions of Legal principle; legal
legitimacy, affirming the equal dignity of persons, the law is what equality; due process; legal
it ought to be. It provides the morally appropriate basis for the obligation; law’s integrity
resolution of disputes between people who may disagree about
what justice, ideally conceived, requires. Specific rules or rulings
are properly interpreted in accordance with legal and
constitutional principle, which tracks the nature and boundaries of
legitimate government. Procedural and substantive moral
standards are encompassed within an appropriate conception of
the rule of law. The law is thereby constituted the measure of
justice for the political community: a public conception of justice
is substituted for conflicting private ones. Our legal obligations are
precisely the moral obligations we owe as citizens, faithful to that
community. We honour the demands of justice by obedience to
law – the law that obtains in virtue of adherence to the ideal of
the rule of law.

Introduction
It is widely supposed by lawyers and legal theorists alike that the law, as it is understood
and applied in practice, falls short of what it ought to be. It falls short in the sense of being
morally deficient, failing to match the standards of justice or political morality by which it
must be measured. If, however, we often disagree about what those standards require, at
least in particular cases or contexts, the law may provide a legitimate basis for governance,
capable of eliciting our support in spite of its many imperfections. When the necessary
conditions are met, the law is in an important sense what it ought to be. The law’s
content may diverge from what each of us may in our private capacities consider that
justice, ideally conceived, would ordain. But we should nonetheless accept the law’s
demands in our public capacities as members of the political community, allowing it to
determine disputes between people whose moral and political disagreements extend far
beyond the specific issues immediately in point. While we must not abandon our moral
ideals, as external critics, we may nevertheless be morally required to obey the law as it
is correctly interpreted – consistently with the principles that underpin its legitimacy.
If, moreover, those principles determine the lawful exercise of official state power,
defining basic rights of persons against improper coercive interference, the law is what
it ought to be. When the principles of legitimate governance are consistently upheld,

CONTACT T. R. S. Allan [email protected]

© 2020 Informa UK Limited, trading as Taylor & Francis Group
 JURISPRUDENCE 575

enforced by impartial and independent courts, the law is the public face of justice. It is, in
substance, a public charter delineating the rights, duties, powers and immunities that
everyone should honour. Fidelity to law is demanded by respect for a political community
that deserves allegiance.1
As the public scheme or charter of justice, the law must respect the equal dignity of all
those within its coercive embrace. The law must be regarded as a public asset, intended to
serve the public good: it cannot be merely an instrument for promoting the interests of a
ruling elite. But these are hardly strong assumptions. They require simply that legal reason-
ing should be disciplined by the constraints of a shared tradition, which limits the scope and
exercise of both public and private power in recognition of basic rights enjoyed by everyone.
That tradition is not immutable but open to challenge and revision: the law is in that sense
continuous with ordinary discourse between morally autonomous agents. But in our public
capacity, whether as citizen or official, we must invoke the principles and paradigms of legal
and constitutional practice, offering arguments addressed to other practice-participants. Our
disagreements take the form of argument over the correct understanding of a legal tradition;
we appeal to principles and precedents that we know are salient for our antagonists. The
public scheme or charter displaces open-ended moral controversy, within the context of
legal argument, becoming the measure of justice for the correct resolution of disputes,
both between private citizens and between citizens and public officials.
When legal practice is understood in this way, its participants orientated by principles
that affirm the equal dignity of persons, the law may be said to have ‘integrity’.2 There is,
however, no space within the practice for conflict between integrity and justice: the
former is substituted for the latter under the familiar conditions of moral disagreement.3
While an interpreter’s moral ideals may colour his engagement with legal practice, those
ideals will find more concrete expression in his articulation of legal principle, illuminated
by the precedents and paradigms he can invoke in support. He cannot both affirm the prac-
tice, as a legitimate mode of governance, and reject its implications for particular instances.
Displacing justice, as an ideal untethered to practice, integrity demands consistent allegiance,
even if there is scope for argument about what precisely the law requires in all the circum-
stances. Dworkin’s anxiety to preserve a clear distinction between what the law is and what
it ought to be, though consistent with orthodoxy, is at war with his larger vision.4 A full-
blooded interpretative approach to integrity erases the distinction between questions about
the law’s content, on the one hand, and questions about obedience, on the other. Law
becomes a local or jurisdictional branch of morality itself, incorporating moral argument
about the proper incidence of state coercion in particular cases within its own domain.5
Admittedly, legal practice must be subject to critical appraisal and reform; political inter-
vention may be needed to correct injustices that interpretative legal argument alone has

1
When a theory of law is addressed primarily to the jurisdiction that claims our allegiance, attentive to its animating tra-
dition and culture, questions of legality and legitimacy are closely aligned. Compare Ronald Dworkin, Law’s Empire
(Fontana Press, 1986) 90–94.
2
See Dworkin, ibid chs 6, 7.
3
Compare Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) ch 9.
4
In Justice for Hedgehogs (Belknap Press, 2011) 407–09, Dworkin offers an example of family practice to illustrate the way
in which the distinction arises as a complexity within morality itself. But it is essentially a difference between personal
ideal and ‘family morality’. For purposes of decision and action, we must defer, in fairness, to the practice we share with
others – whether family or legal and constitutional morality.
5
An ‘integrated account’ of law and morality ‘distinguishes law from the rest of political morality, in effect, by defining a
legal right as a right to a judicial decision’: ibid 410.
576 T. R. S. ALLAN

failed to rectify. While adjudication promotes incremental change, as courts strive to recon-
cile conflicting rules in particular cases, drawing as necessary on general principles, reform is
sometimes impeded by an exaggerated deference to erroneous precedents, which betray past
prejudices or questionable assumptions. Parliamentary legislation is often necessary to
prompt fresh thought, stimulating the reinterpretation of previous practice. In that sense,
then, the law may fall short of what, ideally, it ought to be. It falls short, however, by its
own standards.6 Its moral unity, as the public scheme of justice, has been compromised
by certain defects or deficiencies, which legislation can help to repair. Legal integrity must
be bolstered by political integrity, legislators striving to further morally coherent arrange-
ments for the just resolution of disputes.7 Reform should be guided by considerations of
justice drawn from an understanding of the political ideals already embodied in the law,
when favourably interpreted. Statutory change must in turn be assimilated by the corpus
juris, strengthening its moral credentials as the basis for a just society.8
While the law’s administration may, on this view, be morally deficient, it awaits internal
challenge and correction. If the law’s application to particular cases is sometimes inaccur-
ate or unreliable or otherwise unsatisfactory, the law itself is morally what it ought to be. It
is, at root, the public scheme of justice constructed and maintained by a legal and political
culture that honours the moral independence and equal dignity of persons. Everyone has a
voice in the debates over justice that political arrangements facilitate. And no one may be
subjected to legal requirements that could not be justified by recourse to principles that
provide the principal currency of that debate. The distinctions drawn between persons
and groups must be defensible, accordingly, drawing on principles and precedents
widely acknowledged as pertinent. Purported rules and rulings that defy these basic
requirements are only masquerading as law: they await the moral critique that the law
itself provides as the fundamental charter of a free and fair society.9
In common law jurisdictions, accordingly, the law is understood to provide the appro-
priate criteria for the morally correct determination of disputes. When judges purport to
discover the law in contentious cases, sometimes reinterpreting or even repudiating doubt-
ful precedents, they invoke the general principles that form the law’s backbone, connecting
abstract moral ideals with the requirements of justice in particular cases. The declaratory
theory of the common law is a myth or ‘fairy tale’ only for those who view the law as con-
stituted by specific rules and rulings, ignoring the moral basis of those rules and rulings in
general principle.10 Common law judges rightly suppose that legal reasoning, attentive to a
shared tradition, points to a resolution of a legal dispute consonant with justice. If that

6
Compare Dworkin’s distinction between ‘inclusive’ and ‘pure’ integrity, the latter declaring ‘how the community’s practices
must be reformed to serve more coherently and comprehensively a vision of social justice it has partly adopted’: Law’s
Empire (n 1) 407.
7
Compare Dworkin, ibid ch 6.
8
Equal dignity requires democratic government, forging an alliance between legal reasoning and political argument. The
rule of law, as a moral ideal, assumes a form of republican government in which the law’s subjects are also citizens.
Compare Frank Michelman, ‘Law’s Republic’ 97 Yale Law Journal (1988) 1493. See also Jeremy Waldron, ‘The Rule of
Law as a Theatre of Debate’ in Justine Burley (ed), Dworkin and His Critics (Blackwell Publishing, 2004) ch 17.
9
For recent defence of the idea of a public charter of justice, grounded on a Kantian ideal of freedom as independence, see
Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge University Press,
2016).
10
Compare Allan Beever, ‘The Declaratory Theory of Law’ (2013) 33 Oxford Journal of Legal Studies 421. Beever observes
that although, in ‘The Judge as Lawmaker’ (1972–73) 12 Journal of the Society of Public Teachers of Law 22, Lord Reid
dismissed the declaratory theory as a fairy tale, he also insisted that, in making new law, judges should be guided by the
principles that underlie the precedents: ibid 430–31.
 JURISPRUDENCE 577

resolution follows from the principles that illuminate the relevant field of law, enabling us
to comprehend that field as a coherent scheme of regulation, it is what justice requires in
all the circumstances. Justice for the purposes in hand, duly respectful of the range of
reasonable opinion, means justice according to law.
When the equal dignity of persons is a basic presumption of legal reasoning, the law is
what, for the political community concerned, it ought to be. The rule of law obtains in con-
tradistinction to the rule of persons. The law provides for the enforcement of the rights
and duties that the scheme of public justice affirms. Insofar as public authorities act in
breach of these principles, they act ultra vires; they must be accountable to independent
and impartial courts, able to arbitrate fairly between citizen and state. The rule of law
requires the equal protection of the law: the burden of justification borne by state
officials is critical to the validity and interpretation of law, an implicit limitation on
anyone’s duty of obedience. And interaction between persons generally must be regulated
by recourse to a consistent scheme of justice, curtailing the scope for abuse of private
power. We grant the legitimacy of the legal order only on condition that the rule of law
is preserved. Political obligation is a matter of what we owe to other members of the com-
munity, who collaborate with us in pursuit of the public good and in defence of the rule of
law.
Lon Fuller challenged H. L. A. Hart’s contention that the separation of law and morality
urged by Austin and Bentham could be distinguished from their mistaken conception of
law as the sovereign’s commands.11 In Fuller’s view, Austin had clung to the command
theory, despite its obvious weaknesses, because he perceived that an appeal to the authority
of fundamental rules, as a source of lawmaking authority, would blur the lines between
legal and moral authority. Questions about the sources of law would prove hard to disen-
tangle from questions about the citizen’s moral obligation of obedience to law. Fuller’s
emphasis on the ‘ideal of fidelity to law’ was clearly germane. From the perspective of prac-
tical reason, law and political morality are intertwined. Claims of legal right are justified
only when they are grounded in a scheme of legitimate governance; they deserve recog-
nition and enforcement only under the conditions that political morality, correctly con-
ceived, prescribes.
Fuller’s defence of Radbruch’s work, in the context of re-establishing legal order in
post-war Germany, is illuminating. He shows how the moral dilemma posed by the
‘grudge informer’ cases was necessarily also a legal dilemma. Matters of retrospective pun-
ishment and procedural justice were inextricably related to questions of legal interpret-
ation, which were in turn tied to judgments about the nature and limits of law itself.
Moral judgment was involved as much in identifying the existence of any relevant Nazi
law, which might assist an informer’s defence, as in addressing questions about its
meaning and application. These were ultimately the same issue, linking the identification
of law, properly so called, with reflection on the demands of the rule of law as a moral
ideal. We cannot detach our legal judgments in particular cases from our moral judgments
about the capacity of legal practice, within a specific jurisdiction, to support genuine rights
and duties. Any question of law, if posed for any practical purpose, is tied to the question

Lon L Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630, at 639–40. See
11

also HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, reprinted in Hart,
Essays in Jurisprudence and Philosophy (Clarendon Press, 1983) 49–87.
578 T. R. S. ALLAN

of allegiance or fidelity. A genuine legal right or duty must be grounded in a legitimate

practice. When the practice is morally obnoxious its claims of authority and obligation
are empty; it has relevance for our moral concern only as a matter of empirical fact.
Fuller’s genius was to perceive that these moral constraints on valid law were intrinsic
to the ideal of due process, itself the kernel of the ideal of the rule of law. Not only must
legal rules be normally prospective, publicly ascertainable and possible to follow in prac-
tice, but they must be fairly and faithfully applied to particular cases: there must be appro-
priate ‘congruence’ between the law and its administration.12 The impartial application of
rules depends on high standards of probity in matters of interpretation. The rules cannot
mean whatever their authors would like them to mean in particular cases. Their meaning
depends on the conclusions of impartial judges, who can distinguish when necessary
between the demands of public policy, on the one hand, and the requirements of
justice, on the other. Even if the latter depends on the context, which includes the
proper aims of public authority, it encompasses the legitimate interests and expectations
of the citizen, who cannot be reduced to a convenient instrument of government policy.13
While distinguishing between ‘justice in the administration of the law’, on the one
hand, and ‘justice of the law’, on the other, Hart acknowledged that simply in treating
law as a system of general rules, there is a certain connection with justice. It is a principle
of both law and justice that like cases should be decided alike, even if for law ‘the criteria of
when cases are alike will be, so far, only the general elements specified in the rules’.14 Those
general elements, however, must be interpreted so as to make the law at least broadly
coherent, drawing defensible distinctions between persons, consistent with the assumption
of basic equality. While the law’s ‘external morality’, as Fuller termed it, is supplied in large
part by political decision, responsive to shifting perceptions of the public good, its ‘internal
morality’ operates as a safeguard of justice in particular cases. If the assumption of equality
is conceded, as a condition of legitimacy, the distinction between justice as a standard of
law’s content and justice as a standard of its administration collapses. Adherence to due
process entails a commitment to equal justice, defined by recourse to legal practice and
tradition.
Fuller connected due process and equal justice by pointing to the constant interaction
between internal and external moralities as judges seek to do justice according to law.
Potential conflicts between rules and rulings must be resolved by interpretation; official
requirements must be explained in a manner that brings them within people’s capacity
to understand and obey. The law is always in a process of transition, acquiring greater
determinacy and precision as it is applied to novel circumstances. Even if procedural leg-
ality is logically compatible with grave injustice, it also serves to bring a legitimate regime
closer to its own ideals of good governance.15 It does so, in the last analysis, by imposing
demands of moral consistency as a challenge to the conscience of anyone acting under

12
Lon L Fuller, The Morality of Law (revised edn, Yale University Press, 1969) ch 2.
13
The law’s subject is someone whose humanity and independent agency demand respect: ‘Every departure from the prin-
ciples of the law’s inner morality is an affront to man’s dignity as a responsible agent’ (ibid 162).
14
Hart, Essays in Jurisprudence and Philosophy (n 11) 81. For fuller discussion, elaborating the connection between justice
and the principle of treating like cases alike, see HLA Hart, The Concept of Law (2nd edn, Oxford University Press, 1994)
157–67.
15
Hart famously observed that the inner morality of law, as Fuller defined it, was ‘compatible with very great iniquity’: see
Hart, The Concept of Law (n 14) 207. Fuller apparently conceded this point while questioning its practical significance: see
Fuller, The Morality of Law (n 12) 154.
 JURISPRUDENCE 579

colour of law. An apparently gentle constraint of compliance with publicly ascertainable

general rules operates, in practice, to limit injustice by exposing the fragility of implausible
grounds of discrimination between particular cases.16
In the following sections I shall elaborate and defend these claims, showing that legal
argument is simply moral argument within the context of a specific tradition, unique to
the jurisdiction in point. That tradition not only frames the question in any particular
case but also provides the answer, legal practice giving detailed content to what would
otherwise be an appeal to very abstract and indeterminate moral standards. Just as
there is no sharp division between procedure and substance, each embraced within the
ideal of due process, so there is no clear line between law and morality. Our precepts of
fair procedure merge in practice with broader principles of fair treatment, our more con-
ventional standards of legality fading into more contestable moral commitments. There is
no point at which we must leave the practice in favour of ‘pure’ moral reasoning, short of
wholesale revolution.17 Nor must we wrestle with conflicting claims of law and conscience.
Personal integrity is aligned with the law’s integrity as we strive to unify practice and
principle.18

Legality, equality, and due process

Adherence to the rule of law is a condition of the legitimacy of state coercion and, hence, of
the existence of law, properly so called. The law, for all practical purposes of decision and
action, consists in the rules and requirements that obtain in virtue of the rule of law. They
are the rules and requirements that deserve our compliance as good citizens, who
cooperate in maintaining a legal and constitutional order that honours the basic principle
of equality. At the heart of legality, on this understanding, is the commitment to equality
before the law. The rule of law is contravened when anyone is exempted from the law’s
ordinary demands for reasons of personal prerogative or privilege – reasons unrelated
to the law’s general purposes. The rule of law is similarly denied when anyone is the
victim of ad hominem punitive legislation. A bill of attainder, which flouts the ordinary
requirements of separation of powers by fusing the legislative and judicial functions, is
a repudiation of the ideal of equality – equal justice under law. A bill of attainder is a
parody of law, the enactment of a judicial sentence and hence, legally speaking, a contra-
diction in terms – as incongruous as a formal constitutional commitment to iniquity or an
Administration of Injustice Act.19
The rule of law, viewed as guiding moral ideal, cannot be satisfied by the faithful appli-
cation of a specific injunction to the circumstances it describes – the punishment, for
example, of the victim of a bill of attainder. Individual orders must instead be authorised
16
See especially Fuller, The Morality of Law (n 12) 157–67.
17
We do not shift constantly between ‘black-letter legal reasoning’ and ‘pure moral reasoning’, as Jeremy Waldron implau-
sibly contends: see Waldron, ‘Judges as Moral Reasoners’ 7 International Journal of Constitutional Law (2009) 2 at 12–13.
For discussion and critique, see TRS Allan, ‘The Moral Unity of Public Law’ (2017) 67 University of Toronto Law Journal 1, at
14–19, 26–27.
18
Dworkin’s account of ‘integrity’ in Law’s Empire (n 1) can be understood as a development of Fuller’s thesis, if in certain
respects an unsatisfactory one (see further below).
19
Compare Alexy, ‘A Defence of Radbruch’s Formula’, in David Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal
Order (Hart Publishing, 1999) 27–28 (proclamation of a ‘sovereign, federal and unjust Republic’); Neil MacCormick,
‘Natural Law and the Separation of Law and Morals’ in Robert P George (ed), Natural Law Theory: Contemporary
Essays (Clarendon Press, 1992) 105–33, at 112 (‘Administration of Injustice Acts’).
580 T. R. S. ALLAN

by reference to established law, applying general criteria. Equality before the law entails
impartiality in the administration of the law – where general rules are applied to particular
cases according to their terms, correctly and consistently construed. But the rule of law is
more demanding. Understood as requiring only the impartial application of general rules,
whatever their content, a familiar ideal would be substantially empty: it would amount to
the requirement that the law should be followed rather than flouted.20 The exclusion of
bills of attainder is quintessentially a safeguard of justice: the law cannot be made an
instrument for suppressing political opposition or avenging a supposed wrong. The bill
of attainder is the paradigm example of a measure that singles out persons or groups
for adverse treatment on arbitrary grounds – grounds that cannot plausibly stand as
reasons of public interest, consonant with any morally defensible account of the public
good.21 Treating like cases alike is not a merely procedural requirement: there are impli-
cations for the law’s content.22 It entails that the criteria for decision do not themselves
flout the underlying ideal of equality, forging a strong connection between procedural
and substantive justice.
The existence of the general rule, on the one hand, and its impartial, even-handed appli-
cation to particular cases, on the other, constitute the law a bulwark between governors
and governed, sharply reducing the former’s ability to discriminate unfairly between
persons – imposing burdens or allocating benefits on irrelevant criteria, having little or
no connection with the purposes publicly identified by way of justification. Even if
those proffered justificatory grounds are controversial, provoking debate and disagree-
ment, they must be adhered to publicly and consistently.23 When measures purport to
serve the public good, within the constraints of justice, they invite appraisal and challenge.
Their validity depends on the availability of an interpretation that permits them to operate,
in practice, in a manner that promotes the public good, consistently with respect for the
dignity of persons.24
In defence of his claim that the various canons of procedural legality amounted to an
‘inner morality of law’, Fuller emphasised the implicit demands of reciprocity between
governors and governed.25 People can only comply with rules if they are published, intel-
ligible, prospective, relatively stable, mutually consistent and possible in practice to obey.
But people have no incentive to obey unless they are assured that officials will themselves
20
Compare Peter Westen, ‘The Empty Idea of Equality’ (1982) 95 Harvard Law Review 537. For recent analysis of the anti-
egalitarian critique, see Frej Klem Thomsen, ‘Concept, Principle, and Norm – Equality Before the Law Reconsidered’ (2018)
24 Legal Theory 103.
21
Power is ‘arbitrary’ when it is unilateral and unaccountable, exercised without concern for the judgments or expectations
of those affected. Compare Gerald J Postema, ‘Law’s Rule: Reflexivity, Mutual Accountability, and the Rule of Law’ in
Xiaobo Zhai and Michael Quinn (eds), Bentham’s Theory of Law and Public Opinion (Cambridge University Press, 2014)
7–39, at 10–14.
22
Thomsen’s sceptical critique of equality before the law follows from his account of the principle as ‘procedural legal ega-
litarianism’, which distinguishes between questions of the law’s content, on the one hand, and its proper application, on
the other: ‘Concept, Principle, and Norm’ (n 20). A superior conception, I am arguing, must address both procedure and
substance, which are interrelated in important ways. When Thomsen expands his conception of ‘equal treatment’ to
include a principle of non-discrimination or non-arbitrariness (at 112–13) he concedes, in effect, that his procedural
version of equality before the law is artificially narrow.
23
Compare Dworkin’s doctrine of ‘political responsibility’, requiring ‘articulate consistency’ – the forerunner of ‘law as integ-
rity’: Dworkin, Taking Rights Seriously (Duckworth, 1977) 82–90.
24
It is only from a narrowly instrumental viewpoint, regarding the law simply as a means of imposing a government’s will
on the subject, that the rule of law could be thought compatible with all manner of social evils and iniquity. It is from that
perspective alone that the rule of law is viewed as a merely ‘negative value’, intended to minimize the danger of arbitrary
power presented by law itself: Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979) 211.
25
Fuller, The Morality of Law (n 12) 39–40, 61–62, 137–40.
 JURISPRUDENCE 581

adhere to a reasonable construction of the rules: there must be no discrepancy between the
law as announced and its actual administration.26 Fuller’s standards of legality have con-
sequences for the content of the law: they preclude the arbitrary assertion of force, incon-
sistent with the correct construction of a scheme of general rules.27 But correct
construction is a matter for informed deliberation, sensitive to people’s reasonable expec-
tations and settled understandings. The fundamental idea, then, is that legal requirements
should be justified, in the sense that general compliance secures a defensible scheme of
regulation.28
The various precepts of the inner morality of law serve the ideal of due process. They
secure the only circumstances under which it would be fair to enforce liability, whether
civil or criminal, against anyone accused of transgressing the law. A statutory rule can
make no effective – or permissible – change to existing law unless it meets the conditions
required for compliance. No one can be fairly charged with breach of a secret, obscure,
contradictory or retrospective law; her conduct must be judged by reference to a defensible
interpretation of law, accessible in advance. The various requirements of natural justice or
procedural fairness, which concern the fairness of the proceedings in which a person’s
actions are judged, belong to the same broader ideal of due process. And while respect
for due process may not guarantee substantive justice, it is nonetheless a precondition:
it secures the institutional framework in which questions of justice may be fairly deter-
mined in the context of particular cases.
The contrast Fuller drew between the internal and external moralities of law – pro-
cedural justice, broadly construed, versus substantive justice – reflects the lawyer’s
primary focus on the law’s administration, which concerns its application to particular
cases. In confining his attention to the immediate case, where the appropriate solution
is readily provided by analogy with other cases of a similar kind, the lawyer can usually
avoid confronting larger issues of political controversy. There is less scope for reasonable
disagreement, having regard to the treatment of other cases, and hence a firmer basis for
reaching the correct conclusion. Similarly, it is better if possible to impeach a criminal pro-
hibition for ambiguity, or for having retrospective effect, than for imposing ‘cruel and
unusual punishment’, which is more likely to provoke dispute.29 But there is no watertight
division between internal and external moralities: the more unusual the case, or the less
persuasive the decisions invoked by way of analogy, the further a court must venture
into questions of substantive justice.30
The connection with substantive justice follows from the practical necessity of articu-
lating the purposes of rules: their clarity and intelligibility are inseparable from a grasp of

26
Ibid 81–91.
27
The characteristically formal precepts of Fuller’s inner morality have substantive implications for the law’s content: see
John Gardner, Law as a Leap of Faith (Oxford University Press, 2012) ch 8.
28
If, as Gardner recognises (previous note), law’s internal morality affects the law’s permissible content, the rule of law pre-
cludes the pursuit of certain illegitimate ends. Fuller’s theory of law is neither straightforwardly functional nor modal, nor
straightforwardly formal or substantive. It protects at least some rights and excludes some ends as inconsistent with
respect for those rights: see Michael P Foran, ‘The Rule of Good Law: Form, Substance and Fundamental Rights’
(2019) 78 Cambridge Law Journal 570, especially 585–95.
29
Fuller, The Morality of Law (n 12) 104–05.
30
Gardner suggests that a preference for decision on grounds of ‘internal’ legal morality is often a lawyer’s trick, capitalizing
on ‘others’ misplaced allegiance to the ideology of legalism’: see Law as a Leap of Faith (n 27) 217. He acknowledges that
Fuller escapes this charge. But it is not because Fuller envisages a trade-off between the ‘rule of law’ and other moral
ideals, as Gardner supposes. Fuller’s conception of the rule of law is, on analysis, appropriately capacious, repudiating
any sharp division between procedural and substantive justice.
582 T. R. S. ALLAN

their objectives. Such objectives cannot be the private purposes of government officials.
The rules must make sense as contributions to a system of governance that serves the
public good in a manner that all persons, respectful of the legitimate interests of others,
could reasonably be expected to acknowledge. Not only is adherence to law required for
effective action in the public interest – law being ‘a precondition for good law’ – but
also ‘acting by known rule is a precondition for any meaningful appraisal of the justice
of law’.31 Procedural legality is intended to serve a just legal order: ‘It is the virtue of a
legal order conscientiously constructed and administered that it exposes to public scrutiny
the rules by which it acts.’32
Public scrutiny helps to preserve the law’s integrity, not merely by drawing attention to
deficiencies in the law’s administration, but also by ensuring that the law does not become
the tool of a powerful elite or faction. If the rules cannot be interpreted in a manner that
serves the public good, consistently with fundamental equality, they are invalid: they are
an abuse of legal forms, incapable of generating obligations of obedience. The law can give
rise to obligations only on the part of persons whose powers of independent agency or self-
determination are properly acknowledged: such respect for personal dignity is the nub of
reciprocity.33 When law is conceived as a rational process of deliberation and decision-
making, fit for the governance of independent persons with aims and opinions of their
own, certain abusive or iniquitous ends are necessarily excluded. They are excluded
because they could play no role in any plausible interpretation of legal practice as condu-
cive to the public good within the constraints of justice. The rule of law has both pro-
cedural and substantive implications. Rulers and ruled must collaborate in an
interpretative endeavour structured by moral principles that all can endorse – principles
that enjoy a secure basis in a common practice.34
The law’s integrity is ultimately dependent on individual conscience, appropriately
independent of both official policy and popular prejudice or predilection.35 It will some-
times be an onerous responsibility. But publicity and candour are often, in practice,
powerful disinfectants. The Nazis employed secret ‘laws’ and private threats because
they perceived that enactment of their brutal plans would invite both foreign and domestic
condemnation. Even a broadly anti-Semitic public culture could join forces with legality to
constrain the excesses of the Nazi tyranny.36 When confronted by the repellant impli-
cations of state policy that might otherwise go unchallenged, people are usually obliged
to reconsider their loyalties: maintaining their self-respect prompts a fresh commitment
to the better integration of practice and principle.37

31
Fuller, The Morality of Law (n 12) 157.
32
Ibid 158.
33
‘The law-abiding citizen … does not apply legal rules to serve specific ends set by the lawgiver, but rather follows them in
the conduct of his own affairs, the interests he is presumed to serve in following legal rules being those of society gen-
erally’: ibid 207. See also Jennifer Nadler, ‘Hart, Fuller and the Connection between Law and Justice’ (2007) 27 Law and
Philosophy 1.
34
Compare Fuller’s discussion of customary law and international law: The Morality of Law (n 12) 232–37.
35
Political obligation, as Dworkin explains, has a ‘protestant’ hue: ‘fidelity to a scheme of principle each citizen has a respon-
sibility to identify, ultimately for himself, as his community’s scheme’: Law’s Empire (n 1) 190.
36
See Weinrib, Dimensions of Dignity (n 9) 99–107.
37
Fuller draws attention to the ambiguities and obscurities inherent in the attempt to give statutory force to the racial
distinctions imposed by South African apartheid: The Morality of Law (n 12) 160–62. Efforts to address the problems
of internal morality, Fuller suggests, oblige us in practice to confront the broader issues of equality or justice. Even a
racially prejudiced judge is likely to be embarrassed by the iniquities that his attempts to achieve even formal equality
highlight and underscore. As Fuller observes, ‘Even if a man is answerable only to his own conscience, he will answer
 JURISPRUDENCE 583

Equality before the law and due process are ultimately two sides of the same coin, each
implicit in Fuller’s ideal of reciprocity between ruler and ruled. If the issue of interpret-
ation ‘occupies a sensitive, central position in the internal morality of law’, it illuminates
the ‘cooperative nature of the task of maintaining legality’.38 Stable and reliable modes of
interpretation require a distribution of power between government and citizen, with inde-
pendent and impartial courts empowered to maintain and enforce it. That distribution of
power is not compatible with arbitrary distinctions between persons – distinctions that
lack a grounding in shared ideals of legitimate governance. At the heart of due process
is the justification of the law’s application to the particular case, ensuring that the
persons involved are fairly treated. But fair treatment ultimately depends on the justice
of the law as a whole, viewed as a coherent scheme of regulation. The law cannot be
fairly applied to the particular case, having regard to all relevant circumstances, unless
the law itself is reasonably just – the relevant circumstances being identifiable on the
basis of plausible and intelligible public ends, reflected in, or at least compatible with,
the general scheme.39
It is only when statutory rules are artificially insulated from constitutional principle that
due process and equality are prised apart. If statutory meaning is treated as matter of fact –
what the legislators intended to permit or require – the decision in any particular case is
readily explained, but scarcely justified: it bows to the rulers’ will, whatever its merits. Due
process is simply a matter of the accurate administration of the law, narrowly conceived.
Equality before the law is merely formal: the law is applied according to its explicit (or
intended) terms. When, by contrast, we acknowledge the interpretative complexity that
accompanies a genuine respect for human dignity, due process and equality are fused.
While a statutory purpose or policy may be invoked in aid of justification, it will rarely
be determinative. The correct decision in any particular case is always dependent not
only on statutory purpose, if relevant, but also on the considerations of legal or consti-
tutional principle that may apply to qualify that purpose. Justification is more thorough-
going: it purports to show not merely what has been authoritatively determined, as a
matter of general rule, but also why the persons concerned should accept any relevant
implications for them as morally binding.40
Equality before the law may be attained by systematic judicial exposition, characteristic
of the common law tradition. Whether statutory in origin or derived, instead, from a study
of precedent, a rule may be clarified and qualified by judicial reasoning in the course of
adjudication. In justifying any departure from the previous understanding – any adap-
tation of the rule to fit novel circumstances – the court fulfils its responsibility of public
justification. It preserves equality, treating all alike according to their circumstances, by
articulating the grounds of the distinctions it makes between persons. Such a discipline
cannot, it may be objected, guarantee substantive justice: we may condemn the criteria
adopted for distinguishing between different cases. But we can be confident, first, that
at least there are criteria, publicly identified, which limit the scope for arbitrary –

more responsibly if he is compelled to articulate the principles on which he acts’ (ibid 159). For a discussion of apartheid
South Africa sympathetic to Fuller’s approach, see David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of
Legality (2nd edn, Oxford University Press, 2010).
38
Fuller, The Morality of Law (n 12) 91.
39
Compare Postema’s emphasis on law’s ‘distinctive discipline of systemic, deliberative reasoning’ as being central to its
promise of protection against arbitrary power: ‘Law’s Rule’ (n 21) 13.
40
Compare NE Simmonds, Law as a Moral Idea (Oxford University Press, 2007) ch 4.
584 T. R. S. ALLAN

unregulated or unaccountable – treatment of individuals. And, secondly, we can, if necess-

ary, challenge the relevant criteria as unfair and unjust – inconsistent with the law as a
whole when properly understood.41
Formal equality before the law quickly gives way, in practice, to considerations of sub-
stantive justice. There is always the need to determine the appropriate interaction of
potentially conflicting rules, according to the circumstances of the particular case.
While conventional canons of interpretation may offer assistance, resolving certain
conflicts on a morally neutral basis, they cannot do all the necessary work. It is only
from the perspective of the larger scheme – the corpus of rules treated as a systematic reg-
ulative regime – that we can justify an interpretation of the law decisive of the particular
case. In some cases, when serious considerations of justice arise, we may have to move far
beyond the immediate context to provide an appropriate justification – one capable of per-
suading a reasonable person that his own interests have yielded, legitimately, to the coun-
tervailing interests of others. A charge of inconsistency, as regards the application of a
specific rule, can only be met by a defence of the broader field of law. A challenge to
the administration of the law has become, in effect, a challenge to the justice of the law
itself.

Law, justice, and legitimacy

When the rule of law is upheld, preserving fundamental equality, there is the necessary
foundation for legitimate government. Obedience to law is obligatory, and the law’s enfor-
cement justified, when the law is correctly identified – duly interpreted in accordance with
the rule of law. The law will permit or require what it ought, morally, to permit or require.
It will do so, at least, in the circumstances of reasonable disagreement. Arguments about
justice are framed, for all practical purposes, as competing interpretations of a flourishing
practice – challenging apparent inconsistencies between fundamental principles, widely
affirmed, and specific instances of people’s treatment at the hands of the state. In
framing our disagreements in this manner, respectful of shared commitments and tra-
ditions, we honour our duty of cooperation with other members of the community.
Mutual civility forms the basis of political obligation, each person seeking harmony, as
far as possible, between law and justice as interrelated and interdependent ideals. These
are the bonds of civic friendship, forged by mutual commitment to fundamental
equality.42
If we adopt a non-moral concept of law, identifying law with the factual content of
officially authorised rules or rulings, it is very hard to account for political obligation.
Yet legal rights and requirements are usually presented, in interactions between citizen
and state, as having conclusive moral force. A legal system is arguably defective,
41
Dicey’s account of the rule of law as ‘legal equality’ is somewhat ambiguous as between formal and substantive con-
ceptions, requiring ‘not only that … no man is above the law, but (what is a different thing) that … every man, whatever
be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals’: AV Dicey, The Law of the Constitution (JWF Allison ed, Oxford University Press, 2013) 100.
42
Compare Dworkin’s defence of political obligation as associative, grounded in the ideal of community or fraternity charac-
teristic of a ‘genuine political community’, governed by common principles that justify institutional decisions: Dworkin,
Law’s Empire (n 1) 195–202. See also John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980) ch. 6: obedience
to law is owed to the community because the law is intended to promote the common good, the idea of community
being an extension of, and analogous to, friendship and family.
 JURISPRUDENCE 585

accordingly, if it fails to ensure that genuine legal obligations are morally binding.43 If, as
Joseph Raz suggests, it is an essential feature of law that it claims (purports to exercise)
legitimate authority, we should be suspicious of official demands that do not, in our judg-
ment, possess such authority.44 But it is implausible to postulate a general obligation to
obey the law if that law may have any content whatever, being wholly dependent on
the will or whim of officials. Familiar attempts to ground such an obligation in consider-
ations of consent or fair play are rarely found persuasive.45
When, however, we embrace a moral concept of law, emphasising the relationship
between legality and legitimacy, we can make sense of political obligation. A legal judg-
ment is simultaneously both a determination of the law’s content, in any particular
case, and an affirmation that those affected are morally bound to respect that content,
adjusting their conduct accordingly. If the law’s content finally depends on an interpret-
ation of legal practice, structured by principles that lend it moral unity and coherence, it
will have the requisite authority. Adherence to those principles, critical to the preservation
of legitimacy, will ensure that the law is morally binding.46
In addition to requiring general compliance with law, suitably interpreted, the rule of
law makes further demands of the citizen when its standards of impartial governance
are under threat. In Gerald Postema’s account, the rule of law comprises not merely the
formal, procedural and institutional standards of legality, but also the relationships,
responsibilities and commitments that define fidelity.47 Fidelity to law involves not only
reciprocal compliance with law but also mutual accountability. The rule of law is robust
in a polity, accordingly, ‘just when its members, and not merely the legal or ruling elite,
take responsibility for holding each other and especially law’s officials to account under
the law’.48 Postema emphasises that the maintenance of a robust rule of law is a public
good, achievable only through cooperation: fidelity imposes responsibilities to do one’s
part in a common, cooperative endeavour.49
These issues of obligation and fidelity are closely connected to the interpretative vigi-
lance and acumen necessary to sustain a genuine equality before the law. If the law is
to provide a common language and discipline to structure social and political intercourse,
its requirements must be responsive to the demands of the rule of law. We must hold each
other to account in the right spirit, insisting on compliance with the law as it is properly
interpreted, consistently with the general principles that provide legal and moral coher-
ence. We may of course disagree about the correct interpretation of these general

43
Compare Mark Greenberg, ‘The Standard Picture and Its Discontents’, in Leslie Green and Brian Leiter (eds), Oxford Studies
in Philosophy of Law (volume 1, Oxford University Press, 2011) 39–106, at 84–96.
44
For Raz’s view, see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press,
1994) ch. 9.
45
Compare Dworkin, Law’s Empire (n 1) 190–206.
46
For Dworkin, the law has only prima facie moral force, giving way in cases of egregious injustice. However, the idea of
conflict between justice and integrity is arguably relevant only to an external appraisal of legal practice rather than the
internal interpretative argument mandated by integrity itself. See further TRS Allan, ‘Interpretation, Injustice, and Integ-
rity’ (2016) 36 Oxford Journal of Legal Studies 55. In Justice for Hedgehogs (n 4) 410–11, Dworkin acknowledges that an
‘integrated account’ of law and morality ‘all but erases’ the distinction ‘between the questions of what the law is and
whether judges should enforce that law’. See also TRS Allan, ‘Political Obligation and Public Law’ in Lisa Burton Crawford,
Patrick Emerton and Dale Smith (eds), Law under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Hart
Publishing, 2019), 249–68.
47
Gerald J Postema, ‘Fidelity in Law’s Commonwealth’ in Lisa M Austin and Dennis Klimchuk (eds), Private Law and the Rule
of Law (Oxford University Press, 2014) 17–40.
48
Ibid 21.
49
Ibid 37.
586 T. R. S. ALLAN

principles: we may argue, for example, over the true content and implications of consti-
tutional rights. There is no hermetic seal between legal reasoning and political argument.
But we can readily identify paradigm instances of violations of basic rights, and such
examples may help us to forge a common understanding from which debate over more
doubtful cases can proceed with appropriate courtesy and civility.50
The citizen’s responsibility for legal judgment – the determination of whether what
purports to be law is truly binding – cannot be evaded even if we must look to the judiciary
for informed and reasoned guidance. The constitutional boundaries of state action cannot
lie in the keeping of the courts alone; judicial reasoning must be open to scrutiny and cri-
ticism. In judging the legality of governmental action or decision the courts replicate, pub-
licly and officially, the ordinary task of the conscientious citizen, who must not confuse the
law itself with official assertions about the law. A person’s duty to obey the law is a duty to
act as the law requires when correctly discerned – interpreted in the light of the moral prin-
ciples that justify her conditional, critical allegiance. She must test the legality, and hence the
legitimacy, of rules or rulings by reference to the requirements of justice that the rule of law
identifies in all the circumstances. Nor does a merely purported rule or requirement – one
that violates the constitutional order, correctly conceived – acquire binding force when a
court mistakenly affirms it. If we are confident that the court has turned a blind eye to
grave injustice, colluding with other state officials in a violation of the public scheme of
justice, we may properly challenge its decision. If we practise civil disobedience, refusing
to cooperate with public authority, our disobedience is in substance an affirmation of legal-
ity: we demand adherence to law as the legal order, correctly understood, defines it.51 Con-
fronted by grave injustice of the kind that resists any plausible reconciliation with our basic
political values, we must repudiate what we deem an assertion of arbitrary, illegitimate
power. It cannot be law within the meaning of our ideal of the rule of law.52
Insofar as there are good reasons to accept the authority of officials, whether elected or
unelected, official enactments and decisions may be accounted legitimate ‘sources’ of law.
They must find a place in any adequate theory of the law as a whole, which operates as the
ultimate source of legal obligation. But owing their legal consequences to an interpretation
of the larger corpus of law, informed and regulated by the public scheme of fundamental
justice, official rules and rulings cannot contravene basic principles, trampling over con-
stitutional rights. Their implications for the decision of particular cases is always a matter
of moral argument, attuned not only to immediate matters of public interest or policy but
also to more enduring questions of constitutional propriety. The legality of any rule or
ruling, accordingly, depends on its public justification, which must meet the standards
appropriate to legitimate governance.53
As Jeremy Waldron argues, the law’s susceptibility to rational analysis – its presentation
as a unified system of governance, subject to inquiry and debate – is a public resource that

50
Compare John Rawls. ‘Outline of a Decision Procedure for Ethics’ (1951) 60 Philosophical Review 177. Note Fuller’s obser-
vation that we can know ‘what is plainly unjust without committing ourselves to declare with finality what perfect justice
would be like’: Fuller, The Morality of Law (n 12) 12. For the role of paradigms in legal argument, see Dworkin, Law’s
Empire (n 1) 72–73, 88–92, 138–39.
51
Compare Ronald Dworkin, Taking Rights Seriously (n 23) ch 8, and Postema, ‘Law’s Rule’ (n 21) 34–39.
52
Compare John Rawls, A Theory of Justice (Oxford University Press, 1972) 365–66, observing that civil disobedience invokes
the public conception of justice that underlies the political order, forcing the majority to consider whether it wishes to
acknowledge the legitimate claims of the minority.
53
See also TRS Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press, 2013).
 JURISPRUDENCE 587

promotes the ideal of human dignity by treating people as the bearers of reason and intel-
ligence.54 The law’s subjects can, when appropriate, offer submissions to a court that go
beyond the citation of some determinate rule to embrace a larger vision of the law, accom-
modating their own circumstances. People are treated accordingly as thoughtful partici-
pants in a system of governance, which they can relate ‘in complex but intelligible ways
to their own view of the relation between their actions and purposes and the actions
and purposes of the state’.55 As Waldron observes, courts, hearings, and arguments are
integral features of law, indispensable to law’s respect for human agency.56
There are, however, important implications here for the content of the law. Respect for a
person’s right to argue in support of his legal rights, as he conceives them, entails a will-
ingness to follow the logic of the argument where it leads, according to its strength as an
interpretation of law. It is a defining characteristic of law, Waldron observes, that it pre-
sents itself as ‘standing in the name of the public and as oriented to the public good’: it
cannot include demands presented instead as serving only the benefit of the governing
elite. So nothing is law unless, at least, it purports to promote the public good.57 Within
an argumentative, deliberative regime, respectful of persons as independent moral
agents, however, such claims must be tested. The law cannot literally assert its own creden-
tials. The claims made on its behalf by officials and others can be challenged. If the law’s
demands are defended as serving the public good, their true content – their implications
for the circumstances in view – must be settled in the light of a plausible account of that
good. Implausible official interpretations must be rejected.58
Different accounts of legal equality – equality before the law – accompany contrasting
conceptions of legal rules. On one view, the content of a legal rule reflects its author’s
intentions or purposes, which are to be ascertained from the rule’s specific language:
the normative rule is a direct reflection of the text that contains it. There is an immediate
correspondence between text and norm, which consists in an authoritative pronounce-
ment. Issuing from an appropriate source, the rule exists independently of moral consider-
ations of content or consequence: its requirements depend on ordinary linguistic content
(including both semantic and pragmatic content).59
On a rival view, the content of a legal rule is derived, instead, from a study of the larger
corpus of law to which it contributes. It is not the author’s intentions or purposes that
count; nor is there automatic correspondence between text and norm. A specific text
may alter the law, but the changes are made by reflection on the deficiencies of the
current law that the text has indicated. Considerations of democratic deliberation and
decision are certainly pertinent: the defects identified must be remedied in the manner
proposed. But the connection between text and norm is mediated by appraisal of the
balance of reasons. Fuller’s quarrel with Hart’s distinction between the core and penumbra

54
Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1, at 35–36.
55
Ibid 36.
56
Ibid 60.
57
Ibid 31–32.
58
As Waldron argues, to privilege the aspects of governance that promote clarity and determinacy over the opportunities
for argument that a free and self-possessed individual would naturally demand is to deny the foundation of the rule of
law – ‘respect for the freedom and dignity of each person as an active centre of intelligence’: ibid 60.
59
Compare Greenberg, ‘The Standard Picture and its Discontents’ (n 43) at 44–54. Greenberg summarises this view in terms
of an ‘explanatory directness thesis’: there are no explanatory intermediaries between the authoritative pronouncement’s
being made and the norm’s obtaining.
588 T. R. S. ALLAN

of legal rules draws its energy from this conception of rules. Purpose and structure are
central to an interpretative process characterised as inherently creative: the new rule
must be added to a complex network of rules, which together serve to coordinate a
myriad of individual plans and projects.60
While the former conception may initially seem a plausible view of statutory rules,
which are often treated as the authoritative pronouncements of the legislature, the latter
conception is evidently a better fit with the practice of precedent. Common law rules
do not consist of judicial pronouncements, even if they are based, in part, on judicial
reasoning. They are rather summary expressions of general principle, illuminated and
qualified by the examples that decided cases provide. There is an interplay between rule
and precedent decision, each being understood in relation to the other. The correctness
of a judicial decision depends on its conformity to a pattern of similar decisions – a
pattern that the rule affirms. Legal equality is assured by adherence to a consistent
scheme of rules, coherently distinguishing between different instances.61
When we treat the ideal of legal equality as a basic value, we have grounds for rejecting
the authorial intent view of statutory rules, assimilating them instead to the rival con-
ception exemplified by common law rules. While the enactment of rules normally
changes the law, it does so in a manner that respects the basic unity of law – the moral
unity that guarantees equality. There are good reasons to honour both the decisions of
a democratic assembly and any legitimate expectations such decisions have induced;
and those reasons will often commend close adherence to the canonical form of an
enacted rule, aligning the normative rule with ordinary textual meaning. Against these
reasons, however, must be set any contrary considerations of justice – in particular,
those considerations of justice embodied in presumptions of legislative intent, which
serve to bolster the integrity of the rule of law. The legal effect of an enactment, accord-
ingly, is always a matter of judgment, sensitive to all the applicable moral reasons.
It does not follow that the law cannot diverge from justice when the latter is invoked as
a wholly independent political ideal – an external standard for the moral critique of legal
institutions or legal practice. We should not conclude that the law is simply political mor-
ality adjusted to accommodate, as appropriate, the effects of decision-making by legal
institutions.62 For practical purposes of judgment and action, we must work within a
specific tradition, tailored to the circumstances of the political community. That tradition
translates our abstract ideals into more specific commitments, fashioned and refined by
shared experience and reflective dialogue. The law supplants political morality at large –
perfect governance for an ideal society – in deference to the divergence of opinion
about the correct implications of our political ideals. The law fuses practice and principle,
representing a set of arrangements and requirements that constitute justice in the circum-
stances of moral disagreement.63 Within broad limits, marked out by the basic rights that

60
Fuller, ‘Positivism and Fidelity to Law’ (n 11) 661–69; Fuller, The Morality of Law (n 12) 81–94, 207–42.
61
Compare Stephen R Perry, ‘Judicial Obligation, Precedent and the Common Law’ (1987) 7 Oxford Journal of Legal Studies
215, especially 234–57.
62
See Mark Greenberg, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1288, arguing that legal interpret-
ation involves working out what is morally required as a consequence of the law-making actions of legal institutions. For
discussion and critique, see TRS Allan, ‘Principle, Practice, and Precedent: Vindicating Justice, According to Law’ (2018) 77
Cambridge Law Journal 269.
63
Compare Waldron’s account of the ‘circumstances of integrity’, showing that there is no genuine conflict between justice
and Dworkinian ‘integrity’, at least from the perspective of collective political decision-making: Waldron, Law and
 JURISPRUDENCE 589

respect for human dignity requires, such arrangements and requirements possess legiti-
macy. They define reasonable terms of cooperation between people who must collaborate
in spite of their differences – respectful of each other’s divergent opinions and the under-
lying commitment to dignity that motivates debate and deliberation.64
Gustav Radbruch’s conception of ‘statutory lawlessness’ encapsulates the abuse of legal
forms, where the grave violation of justice renders purported law invalid.65 Because the
point of law is to provide a system of justice, the denial of basic rights or the infliction
of harsh punishment for trivial offences renders the assertion of state power illegitimate
and hence unlawful: ‘When there is not even an attempt at justice, where equality, the
core of justice, is deliberately betrayed in the issuance of positive law, then the statute is
not merely “flawed law”, it lacks completely the very nature of law’.66 Nazi law, accord-
ingly, was not for the most part genuine law: it imposed no legal obligations even if
state officials and sympathisers assumed the contrary. Legal certainty, which is itself a
requirement of justice, entails the acceptance of rules that may fall short of justice,
ideally conceived. But legal certainty, however valuable, cannot justify adherence to
iniquity.67
The distinction between law and purported law – between imperfect law and wicked
law or barbarism – is simply the point at which interpretative dialogue breaks down,
ordinary legal reasoning frustrated by entrenched ideological division. Radbruch’s distinc-
tion between law and non-law, marking the limits of state authority, represents the outer
boundary of legitimate cooperation and civility. It is the point at which our ordinary duties
of collaboration cease and moral duties of resistance and rebellion succeed them. We need
not identify overt indications of public hostility or prejudice. It is enough that the pur-
ported justifications of state coercion are hollow and implausible: the good faith of
fellow citizens or officials can apparently no longer be assumed.68

Law as fundamental justice

The intimate relationship between law and its implicit ideal, the rule of law, is underlined
by the problems arising in the aftermath of a tyrannical regime. As Fuller saw, questions

Disagreement (n 3) ch 9. See also Gerald J Postema, ‘Integrity: Justice in Workclothes’ (1997) 82 Iowa Law Review 821, at
851: ‘Law is a framework of practical reasoning that anchors the public justification of decisions and actions to past com-
munal decisions and actions.’
64
Michelman invokes the American constitutional principle of ‘equal protection of the laws’, and its responsiveness to chan-
ging conceptions of justice, in support of his argument that the necessary ‘self-revisionary, dialogic engagement’ of citi-
zens depends on the experience of public life, broadly understood as extending to the ‘daily encounters and transactions
of civil society’. Citizenship, for purposes of republican self-government, encompasses ‘not just formal participation in
affairs of state but respected and self-respecting presence--distinct and audible voice--in public and social life at
large’: Michelman, ‘Law’s Republic’ (n 8) at 1529–31.
65
Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (1946), translated by Bonnie Litschewski Paulson and
Stanley L Paulson (2006) 26 Oxford Journal of Legal Studies 1.
66
Ibid at 7.
67
Compare Julius Ebbinghaus, ‘The Law of Humanity and the Limits of State Power’ (1953) 3 The Philosophical Quarterly 14
at 17: ‘Any subjection of men which is not designed to secure the rights of all is unjust, despotic, and contrary to the law
of humanity.’ There can be no rightful demand for obedience, and hence no law, in the case of an act of inhumanity (p
22).
68
While Simmonds contends that our compliance with the law is ‘the primary expression of our civility or civic friendship’,
he rightly observes that mutual civility does not require compliance ‘with enacted rules that are themselves a clear breach
of mutual civility: rules which are so grossly unjust that no reasonable person could possibly consider them just; rules that
could not plausibly be claimed to be good faith, albeit misguided, attempts to articulate the requirements of justice’: NE
Simmonds, ‘Constitutional Rights, Civility and Artifice’ (2019) 78 Cambridge Law Journal 175, at 193–94.
590 T. R. S. ALLAN

about the legality of acts performed under such a regime, whether by officials or sympathi-
sers, depend on interpretative approach. If the ‘laws’ were vague or obscure, allowing
officials to enforce their will in practice regardless of legally binding constraints, their
formal ‘validity’ had little or no relevance to the demands either of justice or legality. A
pernicious practice, oblivious of ordinary legal process, could provide no basis on
which anyone could invoke the previous ‘law’ as a defence against prosecution for
serious crimes. Because the content of law is, in practice, dependent on its interpretation
and mode of application, deficiencies in procedural legality merge into matters of sub-
stance. A disdain for legal process, on which the distinction between law and arbitrariness
depends, betrays a contempt for humanity; the law becomes a weapon in the hands of the
ruler instead of a shield against arbitrary power.
Why should the ‘grudge informer’, guilty of a serious offence under the standard crim-
inal code, be entitled to rely by way of defence on a Nazi decree forbidding all criticism of
Hitler’s regime?69 At a certain level of official disdain for liberal constitutionalism the
precept nulla poena sine lege, as applied to an aggressor, loses its purchase: the law
has disintegrated into terror. When the informer’s victim was entrapped by legislation
designed and enforced so as to suppress all political opposition, whatever the circum-
stances, an appeal to such ‘law’ is disingenuous. If we apply our own principles of stat-
utory interpretation, the decrees are unlikely to justify the informer’s conduct. But the
adoption of a Nazi style of interpretation – heedless of such critical distinctions as those
between public condemnation of the regime, on the one hand, and private, confidential
criticism, on the other – would plainly be an abandonment of law as we would under-
stand it.70 To insist that there must not be retrospective punishment of wrongdoers, who
have taken advantage of a flagitious regime to injure others, is simply to beg the ques-
tion. To uphold a defence based on oppressive Nazi decrees is merely to presuppose –
contrary to ordinary interpretative principles – that such decrees actually altered the
applicable law.
As post-war German jurisprudence showed, the legal and moral issues arising in such
cases were inextricably intertwined. Whether or not the ‘grudge informer’ could invoke
Nazi statutes by way of defence to a prosecution for offences under the ordinary criminal
code was a moral issue. Would it be unfair in all the circumstances to deny her such pro-
tection? But the moral issue is inseparable from its legal context. If Nazi tribunals had dis-
regarded standard principles of legality in enforcing the statutes, ignoring inconvenient
textual limitations and contravening the normal ban on cruel and excessive penalties,
they had subverted due process of law. And if the informer had been a willing participant
in such abuses, taking advantage of the Nazi terror to procure an innocent person’s death,
her subsequent appeal to legality would be duplicitous.71 It is only in the light of our faith
in ordinary principles of legality, as they operate within a legitimate legal order, that we

69
See Hart, Essays in Jurisprudence and Philosophy (n 11) 75–77; Fuller, ‘Positivism and Fidelity to Law’ (n 11) 648–57.
70
Compare Fuller, ibid at 653–55. Fuller emphasises both the sweeping nature of the statutory prohibitions and the Nazi
tribunals’ disregard of inconvenient limitations when enforcing these prohibitions; in conjunction these phenomena
operated to abrogate due process of law.
71
Compare the reasoning of the Federal Supreme Court in a similar decision in 1952, holding that a Military Court (under
Nazi rule) had interpreted the law in an arbitrary and unlawful manner: see H O Pappe, ‘On the Validity of Judicial
Decisions in the Nazi Era’ (1960) 23 Modern Law Review 260, 265–66. The earlier decision (of a provincial court of
appeal) criticized by Hart had been misreported: the court did not, as Hart supposed, declare a Nazi statute of 1934
invalid: ibid 261–63.
 JURISPRUDENCE 591

can confront the pertinent moral dilemma. The demands of law, even when extended to
include the enactments of an earlier regime, are dependent on our grasp of the rule of law.
There is no separate moral issue, distinct from our judgment about the demands of legality
– justice in the administration of law – as they apply in all the circumstances.
In warning that the mere repudiation of legal formalism need not import a ‘junction of
law and morals’, Hart suggests that a terror sentence would, in a tyrannical regime, be
intelligent and purposive and hence legally ‘as it ought to be’.72 But such a sentence
could not be law insofar as law requires the similar treatment of similar cases, as deter-
mined by reference to general rules – the essence of ‘justice in the administration of the
law’, which Hart sought to distinguish from ‘justice of the law’.73 H. O. Pappe observes
that the arbitrary interpretation of the statutes by Nazi tribunals, and the disproportionate
sentencing of convicted persons, ‘illustrate the objective deterioration of judicial indepen-
dence and of devotion to legal, in contrast to political [i.e., party political], consider-
ations’.74 In the absence of due process, critical to the law’s fair administration, law
degenerates into the exercise of arbitrary power. Equality before the law, anchored in
the adoption and application of general rules, is destroyed: ‘A statute directing the
courts to follow varying governmental orders regarding the definition and punishment
of crime would obviously not be law, even in Hart’s sense; it would, by definition, be
the very contrast of law, namely, arbitrariness.’75
After the reunification of Germany in 1990, the courts convicted former East German
border guards of homicide. The defence provided by section 27 of the East German Border
Act, permitting the use of arms to prevent the commission of a serious offence, was held
inapplicable to the killings of unarmed fugitives seeking to cross into West German terri-
tory. The validity of the Act was not impugned. Instead, the courts focused on its correct
interpretation: it authorised the proportionate use of force to prevent an escape, involving
an incremental approach that begun with a shouted warning rather than the immediate
resort to automatic fire. The Federal Court of Justice held that, as deployed in actual
state practice, which had generally ignored these limitations, section 27 had no relevant
justificatory effect. Radbruch’s formula was invoked as confirmation that the statute
could not authorise manifest contraventions of elementary requirements of justice; but
the effect was to exclude implausible interpretations, offensive to the rule of law, rather
than simply to invalidate the Act.76
It is only on the basis of certain presuppositions about the limits of legitimacy – the
moral foundations of genuine law – that we can determine the validity of any purported
reliance on statute. The correct meaning of an East German statute may be dependent, in
part, on contemporary state practice; it may depart from the meaning it would acquire in
the context of our own legal order. For reasons of fairness we must defer, to a degree, to

72
Hart, Essays in Jurisprudence and Philosophy (n 11) 68–70. It would be a matter of maintaining the state’s tyranny effec-
tively: ‘The prisoner of such a system would be regarded simply as an object to be used in the pursuit of these aims’ (ibid
70).
73
Ibid 81.
74
Pappe, ‘On the Validity of Judicial Decisions in the Nazi Era’ (n 71) at 270–71.
75
Ibid at 271. Under the Nazis, the courts ‘had to choose between applying the criminal law as established by statute,
interpretation and precedent, and, on the other hand, obeying the shifting and often contradictory administrative direc-
tives of the government of the day’ (ibid 271).
76
See Julian Rivers, ‘The Interpretation and Invalidity of Unjust Laws’ in David Dyzenhaus (ed), Recrafting the Rule of Law:
The Limits of Legal Order (Hart Publishing, 1999) 40–65.
592 T. R. S. ALLAN

expectations induced by familiar state practice.77 But a statute cannot mean simply what-
ever the East German regime wished it to mean, regardless of all the circumstances. That
would entail our abandonment of law and complicity in the assertion of arbitrary power,
denying the basic ideal of human dignity. Questions of legality, interpretation, and justice
are closely interrelated. The law’s content, accordingly, is itself a moral issue, arising within
an interpretative framework constituted by adherence to the rule of law.78
An oppressive statute, threatening basic values of equality or due process of law, pre-
sents the same interpretative problem whether enacted by a former or current regime.
Questions of validity are secondary in the sense that, if formally valid, the statute must
be interpreted if possible in a manner that eviscerates the threat. Even a formally valid
statute may have little or no application to any foreseeable circumstances; the meaning
and scope of its provisions will be, in large part, a function of legal context, supplied by
the presuppositions and principles of the legal and constitutional order. An ouster
clause, for example, may on its face purport to exclude judicial review of administrative
rules or rulings. But it cannot in practice operate to defeat the rule of law. It must be inter-
preted as enlarging the scope of executive jurisdiction, in deference to specialist expertise,
while permitting judicial intervention when that larger jurisdiction is nonetheless
exceeded. Statutory meaning and effect are always matters of reasoned judgment, sensitive
both to legislative policy or purpose, on the one hand, and also to the demands of legality,
on the other.79
From a purely external viewpoint, abstracted from considerations of legitimacy and
obligation, we can sustain the distinction between the law, on the one hand, and its admin-
istration, on the other. Justice in the law’s administration can be distinguished, in prin-
ciple, from the justice of its content. A strict adherence to procedural legality may even
be ‘compatible with very great iniquity’, as Hart observed.80 From that detached perspec-
tive, however, we can only report other people’s opinions of the law’s requirements rather
than our own considered view. What the law requires is always a matter of interpretative
judgment, dependent on an evaluation of all the matters relevant to an appropriate inte-
gration of fact and value.81 It is only in the light of the law as a whole, or at least the per-
tinent field, that we can determine the relevant facts of the case in view; and our legal
conclusions depend on a theory of the applicable law – an account of the principles
that underpin and structure the rules and rulings we treat as binding. Fuller’s ‘inner

77
Rivers criticises the Federal Court for applying overly rigorous human rights standards, which made inapplicable an unjust
statute, contrary to Radbruch’s test of gross injustice: ibid 53, 60–64.
78
It should be noted that the Federal Constitutional Court rejected complaints that the border guards were improperly
subjected to retrospective punishment. East German law, even if applicable, could not give rise to legitimate reliance
where what was ‘authorised’ amounted to gross injustice. A ban on retrospective punishment, though fundamental,
assumes the ordinary context of a broadly just system of criminal law. See ibid 53–56.
79
For a classic example, see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. For discussion and analysis,
see Allan, The Sovereignty of Law (n 53) ch 6. The UK common law constitution shows that the rule of law can be pre-
served even if the courts have no formal strike-down powers: a statute is simply applied to particular cases in an appro-
priate manner, consistently with basic principles. Admittedly, a judicial ‘declaration of incompatibility’ with the European
Convention on Human Rights signals a disparity between domestic and international legal standards. But it need not
indicate a breach of the basic values of the rule of law. Such declarations should be regarded as remedies of last
resort, applicable where judicial interpretation alone is unable to secure perfect alignment between domestic and inter-
national law: see further Allan, ibid ch 5.
80
Hart, The Concept of Law (n 14) 207.
81
As Dworkin contends, an interpreter cannot be disengaged, offering neutral reports of what other people think: he must
‘join the practice he proposes to understand’: Dworkin, Law’s Empire (n 1) 64.
 JURISPRUDENCE 593

morality’ of law, suitably extended, is ultimately the interpretative morality within which
any rule or ruling obtains its meaning and practical effect.
When the prevailing interpretative morality is abhorrent, denying any plausible vision
of legal equality, the external descriptive viewpoint may be the only one available to us.
There may be ‘law’ only in the sense of a regime of general rules, treated as authoritative
by other people. If we repudiate political obligation, rejecting such authority, the ‘law’, thus
conceived, is resistant to any morally acceptable reading compatible with basic prin-
ciples.82 When, however, we acknowledge our own legal order as legitimate – open to
an interpretation consistent with fundamental equality – we can treat each and every ques-
tion of law as requiring study of the implications for such equality of the circumstances
arising. There is no point at which we must abandon the law in favour of justice or
qualify the law by extraneous moral considerations. Legal reasoning is a moral exercise
through and through. We are obligated by the requirements that the law imposes when
correctly interpreted, consistently with basic political values.
Ronald Dworkin’s theory of law goes awry, accordingly, when he supposes that a judge
might be morally constrained to disobey a valid law on grounds of conscience. In ponder-
ing the enforceability of the Fugitive Slave Acts, even when United States law was ‘properly
interpreted in deference to integrity’, Dworkin blurs the lines between competing con-
ceptions of law.83 It is only a ‘conventionalist’ judge, rejecting integrity, who must
decide whether to enforce the law, lie about its content, or resign.84 For a Herculean
judge, faithful to integrity, there is always the question of interpretation, which concerns
the statute’s implications, if any, for the specific context in point.85 Invalidity is chiefly a
consequence of the lack of any plausible range of application; it plays second fiddle to the
primary focus on meaning and practical effect. The judge’s chief concern must be whether,
having proper regard for considerations of equality and due process, the Acts could have
any relevance to the legal issues arising. Even if the Acts’ validity went unchallenged, the
issue of relevance would remain – by analogy with the relevance, in all the circumstances,
of the Nazi statutes to the Nazi informer’s defence to charges under the general criminal
law. If a statute cannot be interpreted consistently with fundamental principles, it has no
power to affect the court’s conclusions in the particular case. Any conflict of political
values is thereby internally resolved: we need not say, with Dworkin, that a valid Act
was too unjust to enforce, legal rights being trumped by a ‘moral emergency’.86
When Dworkin envisages a conflict between integrity and justice – between law as the
interpretation of practice, attentive to the requirements of political morality, on the one

82
For Dworkin’s account of (internal and external) scepticism, see ibid 78–85, 266–71.
83
Ibid 219.
84
Conventionalism is presented as an interpretative version of legal positivism, emphasising the value of legal certainty,
protecting expectations: ibid ch 4.
85
Hercules is ‘an imaginary judge of superhuman intellectual power and patience who accepts law as integrity’: ibid 239.
86
Justice for Hedgehogs (n 4) 411. Alternatively, Hercules would have abandoned integrity, and hence law properly under-
stood, in favour of a merely strategic political decision intended to avoid civil war. In his review of Robert Cover’s book,
Justice Accused: Antislavery and the Judicial Process (Yale University Press, 1975), Dworkin had adopted an internal critique,
more consistent with integrity. The Constitution embodied ‘a conception of individual freedom antagonistic to slavery, a
conception of procedural justice that condemned the procedures established by the Fugitive Slave Acts, and a conception
of federalism inconsistent with the idea that the State of Massachusetts had no power to supervise the capture of men
and women within its territory’: Ronald Dworkin, ‘The Law of the Slave-Catchers’, The Times Literary Supplement (Decem-
ber 5, 1975) 1437. For discussion of the complex issues arising, see Sanford Levinson, ‘Hercules, Abraham Lincoln, the
United States Constitution, and the Problem of Slavery’ in Arthur Ripstein (ed), Ronald Dworkin (Cambridge University
Press, 2007) 136–67.
594 T. R. S. ALLAN

hand, and ‘abstract’ justice, on the other – he supposes that even a legitimate legal order
can produce unjust decisions.87 But any such perceived injustice is either an interpret-
ative judgment, invoking the basic values of the practice itself, or an external appraisal,
irrelevant (short of wholesale scepticism) to the internal viewpoint of the committed
legal reasoner. Within the interpretative context, justice means justice according to
law – the fundamental scheme or charter of justice that underpins the legal and consti-
tutional order. Any defects of justice within that scheme, in anyone’s opinion, are fully
compensated by considerations of political fairness.88 We must cooperate with our
fellow citizens to maintain legitimate governance in spite of our moral disagreements.
In the ‘circumstances of integrity’, when our disagreements are not so profound or divi-
sive as wholly to defeat our collaborative efforts, we honour the basic political values by
adherence to law – the law informed and disciplined by its internal, conceptual moral
ideal of equality.89
The supposed conflicts between justice and integrity or justice and fairness are illusory.
The requirements of justice are fairly determined by interpretation of practice: we adhere
to justice by keeping faith with a shared tradition. We retain our moral independence
because any interpretative judgment finally depends on our appraisal of that tradition.
Legal practice, as we find it, deserves our allegiance only if meets the basic conditions
of legitimacy – it is grounded in plausible conceptions of equality and dignity. When,
however, those minimum standards are met, in our considered judgment, we must seek
the specific demands of justice by internal, interpretative argument. Anything else
would plainly be unfair. If we complain about the injustice of specific rules or rulings,
as we perceive it, we are calling attention to apparent discrepancies between principle
and practice. We aim to instigate change by persuasive argument; we trust that our
reasoned objections will strike a chord with thoughtful fellow citizens and conscientious
officials.
From that interpretative posture, however, any grave injustice, infringing basic rights, is
necessarily a breach of legal principle, and the graver the injustice the more serious the
threat to legitimacy. In response, we must defend an interpretation of practice that allevi-
ates the threat, calling in aid the general principles that basic equality affirms. We must
match the tenor and tenacity of our rhetoric to the scale of the danger we confront. We
must defend the law, correctly interpreted, against its destruction by hostile factions or
corrupt officials. If practice and principle have been rent apart, they must be reunited
by rigorous internal, interpretative argument. We could only condemn the wickedness
of the law – as opposed to someone’s misguided claims on its behalf – from an external,
non-interpretative stance. But we would then have repudiated the ordinary demands of
mutual civility, succumbing, despite our best interpretative efforts, to wholesale scepticism.
Law would have disintegrated, beyond redemption, into arbitrary power and illegitimate
coercion.90

87
For references to ‘abstract’ justice, see Dworkin, Law’s Empire (n 1) 249–50.
88
According to law as integrity, ‘propositions of law are true if they figure in or follow from the principles of justice, fairness,
and procedural due process that provide the best constructive interpretation of the community’s legal practice’: ibid 225.
Dworkin distinguishes between these various ideals at ibid 164–66.
89
Compare Waldron, Law and Disagreement (n 3) ch 9. As Waldron observes, ‘any putative trade-off between justice and
integrity begs the question of which contestant view about justice is being privileged in our account’ (ibid 198).
90
See further TRS Allan, ‘Interpretation, Injustice, and Integrity’ (n 46). The challenge to Dworkin’s account of law posed by
wicked regimes is helpfully explored in Dyzenhaus, Hard Cases in Wicked Legal Systems (n 37) especially 22–33, 180–89.
 JURISPRUDENCE 595

Conclusion
When the law embodies a scheme or charter of justice that honours the equal dignity of
persons, according to a coherent account of that basic value, its obligations are genuine
moral obligations. Obedience to law is owed to other members of the political community.
Mutual civility demands our allegiance, respectful of differing opinions about the impli-
cations of our common principles for specific instances but alert, nonetheless, to defend
an interpretation of law that preserves its legitimacy. Legal practice augments democratic
governance, legal reasoning involving argument about the requirements of justice, steered
by reference to familiar precedents and paradigms. We seek simultaneously to sustain and
enhance a civil and political tradition, furthering justice by correcting mistakes and mis-
understandings – the inconsistencies and biases exposed by debate or dialogue between
persons of equal standing, jealous of the rights on which that standing ultimately depends.
When the law is conceived as a consistent scheme of principle, its application to par-
ticular cases secured by rigorous constraints of due process, it constitutes the measure of
justice for the political community. Justice in particular instances is finally a matter of
moral coherence: the distinctions made by public authorities between persons must be
appropriately justified by recourse to general principles, widely affirmed. When correctly
interpreted in the light of its guiding precepts of equality and dignity, the law is morally
what it ought to be. There is perfect continuity between the moral ideals that provide the
grounds of legitimacy and their implications for particular cases. There is no space where
the law expires, exposing anyone to the arbitrary, unfettered will of other persons.91 Prin-
ciple and practice are interdependent, each informing and reinforcing the other. Within
the sphere of the practice, the demands of justice are satisfied by adherence to the pro-
cedures and principles that practice ordains.
If these conclusions are not explicit in Fuller’s efforts to elucidate the ‘inner morality’ of
law, they are implicit in his emphasis on the interconnections, in practice, between respect
for due process, on the one hand, and substantive justice, on the other. When we insist on
the inherent generality of law, requiring like cases to be decided alike, and study the impli-
cations of rigorous adherence to procedural legality, we can discern the critical role of jus-
tification. Each person’s treatment at the hands of the state must be justified by appeal to
moral standards that would be widely recognised as salient – implicit in the constitutional
arrangements that seek to guarantee fundamental equality. If from a detached, external
perspective, we can clearly distinguish between ‘justice in the administration of the law’
and ‘justice of the law’, from an internal, interpretative viewpoint the distinction largely
disappears. Formal equality is transmuted into constitutional equality, legal practice
merged with legal principle. Legal rules have the content that the rule of law, correctly con-
ceived and applied, determines.
Fuller’s inner morality of law represents the internal moral structure of law, having uni-
versal application. While answers to other (external) questions of political morality are not
logically entailed by the law’s inner morality, they must nevertheless acknowledge its
demands. The divergence between Fuller’s internal and external moralities tracks the

Compare Mark D Walters, ‘The Unwritten Constitution as a Legal Concept’ in David Dyzenhaus and Malcolm Thorburn
91

(eds), Philosophical Foundations of Constitutional Law (Oxford University Press, 2016) 33–52 at 49, emphasising the per-
vasive quality of law, ‘understood to stretch across the entire field of social and political life leaving no gaps where the
exercise of power is arbitrary’.
596 T. R. S. ALLAN

scope of reasonable moral disagreement. Different jurisdictions, equally respectful of law’s

intrinsic moral nature, may legitimately adopt contrasting schemes of regulation. In deter-
mining the implications of each scheme for particular cases, however, we must seek an
appropriate integration of internal and external moralities – an interpretation of law
that honours the requirements of the rule of law. Our legal judgments require a firm foun-
dation in the idea of law itself, our conclusions about the law’s content, within a specific
jurisdiction, building on the fundamental concepts of reciprocity and dignity.92
Grave injustice of the kind that would, if threatened by state officials, justify disobe-
dience is inherently unlawful, violating the constraints of legitimacy. Repudiation of pur-
ported rules or rulings, or dubious interpretations of rules or rulings, is the demand of
legality itself, which aligns the law in practice with the ideal of the rule of law. Our
primary focus must be on questions of interpretation rather than validity. And interpret-
ation is never a matter of what any lawmaker envisaged or intended, as regards the dispo-
sition of any particular case, but rather what the law itself requires when correctly
understood. Correctly understood, the law is an arrangement of rules and requirements
that represents political morality in context – a morality informed and illuminated by
the history, experience and traditions of the political community. It is a collaborative
scheme that each member of the community must finally interpret for herself, as
regards its implications for her own conduct, even if its requirements must be enforced,
in large part, by public institutions and conscientious officials. Legal authority is interpret-
ative authority, shared by all those who collaborate to defend the rule of law. And it is the
exercise of that authority that secures the necessary integration of law-rule and self-rule,
legality and democracy.93 When the rule of law is in place, accordingly, the law is what it
ought to be, sensitive to the political values on which its legitimacy depends.

Acknowledgements
Helpful comments by Michael Foran and Lars Vinx on an earlier draft of this article are very grate-
fully acknowledged.

Disclosure statement
No potential conflict of interest was reported by the author(s).

92
Compare Ronald Dworkin, Justice in Robes (Belknap Press, 2006) 168–85 (‘The Value of Legality’). See also NE Simmonds,
‘The Nature of Law: Three Problems with One Solution’ (2011) 12 German Law Journal 601–23, at 622, pointing out the
substantive implications for adjudication that follow from Fuller’s precepts of internal morality, which together define the
idea of law: ‘There is no point at which the judge’s duty of fidelity to law can be said to have exhausted its implications.’
93
For a proper insistence on the necessity for such an integration between ‘self-rule’ and ‘law-rule’, see Michelman, ‘Law’s
Republic’ (n 8) 1500–03.