Robert C. Moffat has posted Searching for Substantive Justice: Lessons from Lon Fuller’s Natural Law (Iowa Journal of Gender, Race & Justice, Forthcoming) on SSRN. Here is the abstract:
The goal of this essay is to provide some perspective in the search for substantive justice, especially the endeavor to say something positive about the substantive content of justice. The method employed has been to share the insights generated in the life-long exploration of natural law carried out by Lon Fuller. His outlook can be better understood by exploring the state of legal thinking that the young Fuller found as he embarked on his academic career. That setting explains why Fuller turned to natural law, as well as the distinctive perspective he developed. More specifically, his approach to natural law largely avoided its substantive side for three reasons. First, many claims of natural law turned out to be a competing form of positive law. Second, when looked at in historical perspective, substantive natural law often became dated. Finally, he found some claims of substantive natural law to be shocking in their claim to absolute truth.
In place of those blind alleys, Fuller looked for the foundations of justice in the realm of procedure–in the largest sense of that word. Building upon Aristotle’s classic analysis of distributive and corrective justice, he advocated exploring the principles of social order. That work produced many insights, including his distinction between law and managerial direction and the consequent limits on the judgments of justice we are able to make. In a positive direction, he began the work of showing us how the principles of social order offer an evolutionary path toward a greater understanding of justice. Finally, that evolutionary theme culminates in his statement of faith in the possibility of moral progress.
Even so, moral progress is merely a possibility. Having confronted the horrors of the Second World War as he did, Fuller could not embrace unbridled optimism. Nonetheless, he was still able to believe in the possibility of positive work toward the achievement of greater knowledge of substantive justice. Progress toward that goal comes only through employment of real communication, however; not the easy communication with those who hold similar views. Rather, Fuller anticipated the challenging kind of communication with those who have quite different views. For him, this postulate was no mere academic idea. He put it into work in his path-breaking efforts with the Polish officials who were then viewed as being imprisoned behind an impenetrable Iron Curtain. His effort shows us what communication can achieve. At the same time, we must not allow ourselves to forget that there are many roadblocks to successful communication, just as there are many whose efforts to protect their own dogmas will happily strive to obstruct our quest for justice.