all because it violated certain requirements for any legal system. For Fuller, the
essential function of law is to ‘achieve order through subjecting people’s conduct
to the guidance of general rules by which they may themselves orient their behaviour’
(Fuller, 1965: 657). To fulfil this function law (or rules) must satisfy eight conditions:- The rules must be expressed in general terms.
- The rules must be publicly promulgated.
- The rules must be prospective in effect.
- The rules must be expressed in understandable terms.
- The rules must be consistent with one another.
- The rules must not require conduct beyond the powers of the affected parties.
- The rules must not be changed so frequently that the subject cannot rely on them.
- The rules must be administered in a manner consistent with their wording.
Fuller’s argument is not uncontroversial, and many legal theorists will reject these
rules, but it is plausible to maintain that a condition of a law (so-called) being a
law is that it is not arbitrary. Since the first article of the penal code of Nazi Germany
asserted that the will of the Führer was the source of all law, it was impossible for
subjects to determine what was required of them. Once it is accepted that law cannot
be arbitrary then certain conditions follow, including at least a minimal idea of
equal basic civil liberties. Chief among the civil, or political, liberties are the right
to vote and to hold office; significantly, both these rights were explicitly denied to
non-citizens in the Nuremberg Laws (Article 3, First Supplement).
There are other theories of law that do not rest on what Fuller terms an ‘internal
morality’, and which presuppose neither moral equality nor equal liberties. Legal
theorist John Austin characterised a ‘law’ as a general command issued by a
‘sovereign’ (or its agents) (Hart, 1958: 602). The sovereign is that person, or group
of people, who receives ‘habitual obedience’ from the great majority of the
population of a particular territory. So whereas Fuller would argue that (most) Nazi
laws were not really laws at all, Austin would have identified Hitler as the sovereign,
who, insofar as he commands obedience, issues valid law. This does not mean that
his laws were moral: Austin made a sharp distinction between legality and morality.
The relationship between morality and legality will be discussed in later chapters,
and especially when we turn to the topic of human rights.
Equal liberties
As already suggested, the state cannot directly distribute choice, but it can distribute
the conditions for choice by granting individuals rights, or civil liberties. In liberal
democratic societies the most important rights, or liberties, are freedom of
expression, association, movement, and rights to a private life, career choice, a fair
trial, vote, and to hold office if qualified. A couple of points are worth noting. First,
it is difficult to distribute liberty per se; rather, what is distributed are specific rights-
protected liberties. Second, you can have freedom without that freedom being
recognised by the state, for no state can exercise complete control. However, when
we talk about the distribution of liberty, it is not so much the freedom itself which62 Part 1 Classical ideas