… is from page 210 of the 1969 Revised Edition of Lon Fuller’s profoundly important 1964 book, The Morality of Law:
Furthermore, if the law is intended to permit a man to conduct his own affairs subject to an obligation to observe certain restraints imposed by superior authority, this implies that he will not be told at each turn what to do; law furnishes a baseline for self-directed action, not a detailed set of instructions for accomplishing specific objectives.
DBx: Far too many people ignore the vital distinction between “thou shalt not” and “thou must.” A free society is one in which the governing authority relies overwhelmingly on “thou shalt not”; the government in such a society seldom commands its citizens to perform particular actions. Yet both kinds of rules are called “law,” and this name-sharing of two categorically different kinds of rules causes dangerous confusion.
If the government largely limits itself to enforcing “thou shalt not” rules, most of the particular social and economic arrangements that arise in society are spontaneous. They are not planned or intended or even predictable in their particulars. Yet individuals with a legal-positivist mindset – and individuals who refuse to think carefully about government and law – will nevertheless mistake that which emerges under a set of “thou shalt not” constraints as being every bit as much the conscious product of government as would be the arrangements that emerge from a bevy of “thou must” commands. From this mistake it’s a short step to the faulty, fatal conclusion that society and economy are necessarily the conscious products of government decision-making. The distinction between “thou shalt not” and “thou must” is lost.
It would be bad enough if the “thou must” commands came to be treated as ethically and epistemically identical to the “thou shalt not” restrictions. Yet in fact, when this distinction is lost, the “thou must” commands inevitably come to be seen as superior, ethically and epistemically, to the “thou shalt not” commands. The thinking seems to be that if all social and economic outcomes are the product of government design and intent, then government should be serious about exercising its powers, which means abandoning the lazy approach of enforcing only “thou shalt not” constraints and becoming an active issuer of “thou must” commands.
There’s a faux sophistication that individuals who miss this distinction fancy themselves as possessing. But in reality such individuals are social creationists, no more correct or insightful in their views about society than are creationists who deny the reality of natural selection in the biological world.
