Document Type
Article
Publication Date
2025
Abstract
The year 2024 is the sixtieth anniversary of a seminal work in American jurisprudence, itself the consequence of the one of the most important debates in legal philosophy, the Hart-Fuller Debate conducted in 1958’s Harvard Law Review.
Legal philosopher Lon Fuller famously and controversially posited eight “legal principles” as constitutive of a “morality of law” (The Morality of Law, Yale University Press). Legal positivists stridently objected to Fuller’s theory, notably philosopher H.L.A. Hart. They rejected the idea that such things indicated a “moral” dimension to the law. The debate continued for many years, lately with many legal scholars reclaiming the ideas suggested by “Fuller’s Eight.”
A dimension of philosophy that has always been thought at odds with Fuller’s Eight—the philosophy of language—can offer a fresh perspective on what Fuller meant. Under this study, legal rules are examined as linguistic utterances that not only say something, but also do something in their saying. This approach reveals an unstated dialectical context that Fuller presupposed, and shows how law-making, adjudicating, and enforcing are reflected in law’s declaratory, directive, and commissive instantiations.
Drawing upon the work of linguists and ordinary language philosophers J. L. Austin, Paul Grice, John Searle, and Elizabeth Anscombe, among others, the article demonstrates how Fuller’s Eight mirror communicative maxims and felicitous declarations, explains what breakdowns in those conditions portend for the relationship between the sovereign and the governed, and suggests a list of distinct purposive categories—legal “illocutionary acts”—which distinguish what we do when we practice law.
Recommended Citation
A.G. Harmon, “Declaring Law”: A Pragmatic Analysis of Law as Communication and Implications for the Hart-Fuller Debate, 17 Wash. U. Juris. Rev. 197 (2025).