Fuller on Fidelity to Law

Lon Fuller's Positivism and Fidelity to Law, 71 Harv. L. Rev. 630 (1958), is a response to Hart's Positivism and the Separation of Law and Morals (which appeared in the same issue of the same journal). It's one of the articles in the Radbruch-Hart-Fuller discussion that Feinberg critiques in the article discussed in the previous post.

Fuller's fundamental point is that Hart's criticism of Radbruch (that his "higher law" natural law theory does violence to the notion of law when it alleges that Nazi laws were not laws) is mostly unjustified. While Fuller doesn't (explicitly) subscribe to a "higher law" theory, he thinks that Hart completely misses law's "internal morality"--a set of standards implicit in the concept of law, wholesale violation of which renders a system's enactments invalid as law. Radbruch may have been wrong to say that, because the Nazi's aims were odious, their laws weren't "law" (and thus the German courts acted rightly in declaring them void), but he was not wrong to say that the Nazis' failure to conform to certain standards rendered their laws invalid. In Fuller's view, those standards are the "morality of order," which is violated by (e.g.) retrospective statutes, secret statutes, judges who disregard the terms of the laws they purport to apply, and officials who can resort to illegal force without fear of repercussion. A system--such as the Nazis'--that does not conform to the morality of order cannot make "law," since these standards are internal to the very notion of law.

Hart's failure to grasp that there is an internal morality to law has other pernicious consequences as well, the most relevant of which (to my interests, anyway) is that positivism cannot make any sense of the "ideal of fidelity to law", nor (consequently) of the predicament of an individual who finds herself torn between her (moral) duty to obey the law and another moral duty. Fuller's characterization of positivism's take on that situation:

"On the one hand, we have an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it. On the other hand, we have a moral duty to do what we think is right and decent. When we are confronted with a statute we believe to be thoroughly evil, we have to choose between those two duties....[but positivism] never gives any coherent meaning to the moral obligation of fidelity to law...The fundamental postulate of positivism--that law must be strictly severed from morality--seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations. No mediating principle can measure their respective demands on conscience, for they exist in wholly separate worlds." (Fuller 86-87)

Fuller thinks that Radbruch saw, as Hart does not, that Germany faced a dilemma--how to restore both respect for order (i.e., law) and respect for good order (i.e., justice)--and that these goals are not "opposing demands that have no living contact with one another, that simply shout their contradictions across a vacuum." (87) Moreover, Fuller thinks Radbruch was right that the forced separation of law and morals effected by the ascendancy of legal positivism in Germany facilitated Hitler's rise to power. But Radbruch went too far in positing a "higher law" understanding of the relation between morality and law; all that was required for the argument that the Nazi statutes were invalid was to draw attention to their systematic failure to respect law's internal morality. However, he speculates that it is no coincidence that the two arguments would have the effect of invalidating the same statutes, "for the overlapping suggests that legal morality cannot live when it is severed from a striving toward justice and decency."

A few questions about Fuller's view:
(1) Fuller's apparently modest internal morality of law is not unconnected with morality writ large; he just doesn't press the connection. It's as if he suggests it to reassure those who would suspect his view of not going far enough. But he does state his belief, without argument, that "coherence and goodness have more affinity than coherence and evil." Thus, when men are required to explain and justify decisions, that will pull those decisions toward goodness. Can such a belief be justified? Mustn't there be a lot built in to his notion of "coherence" (or, more broadly, his "internal morality")?
(2) Early on, he accusing the positivists of labeling every non-legal standard "morality" and thus muddling up the notion. Doesn't his "internal morality" involve a similar stretching of the traditional understanding of morality? Are his order-related norms really "moral"? (And if so, is it true that "law" must instantiate them?)
(3) Aren't positivists and NL theorists just after different things? LPs just want to talk about what the law is, leaving questions about how it interacts with morality completely to the side, while natural lawyers want to talk about what the law should be if it's going to serve the ends of morality. Where does any of this leave the pharmacist, who knows what the law is and knows what morality requires? Does the NL-er (higher law or internal morality or otherwise) have anything more useful to say to her than the positivist?