Reflections on Feinberg and Fuller

Fuller: Positivism has a problem: Can’t explain the ideal/duty/norm of fidelity to law. Thus, can’t even adequately consider/frame the dilemma of someone whose obligation to obey the law conflicts with other moral obligations.

• “Higher law” notions of NL appeal to a substantive standard to explain why moral duties to obey the law are derivative of its requirements being moral; thus, fidelity to law and one’s moral duty shouldn’t ever conflict.
• His “internal morality of law” provides a procedural way of explaining when one doesn’t have any such duty of fidelity to law (presumably he expects this to be thinner and less controversial, although he does posit that the “morality of order” will cohere better and conduce to good laws rather than bad, and he thinks that both order and good order should be regarded as socially-pursuable goals, and should be considered by lawyers and judges.

Feinberg thinks that this difference (whether moral standards are internal or external to law) isn’t as much of a problem for the private citizen as for a judge, since the latter has to articulate decisions based on legal reasons in public and can’t privately act on his/her moral convictions without risk of undermining the rule of law

But what about when the law doesn’t permit private disobedience without grave consequence (such as in the case of the nullifying juror)? [Related Q: Is undermining the rule of law the only concern a judge or private citizen need have when considering breaching his legal duty?] What about when violation of the law would be public in character and would result in grave harm to one’s own or others' material interests (e.g., punishment, loss of one's job)? Then, isn’t it a matter of significant import to the citizen whether she has incommensurable—but both moral—duties to obey the law and to act morally or whether the law, insofar as it is immoral, does not in fact bind her? Maybe it's only of psychological or spiritual import, since the law will treat her the same way, regardless of whether her duty to obey the law was morally moot. Or can we ask whether, and under what circumstances, it might be wise/appropriate/for law to excuse a person because the legal requirement was trumped by a moral obligation? Can anything general be said about that? Would the answer of the LP and the NL be different? [Could a legal positivist ever permit the law to excuse morally-motivated non-performance of a legal duty, or would that violate the rigid separation?]

Back to the point of view of the individual, is this still just a (semantic) distinction without a (practical) difference? No matter what we call "fidelity to law"--i.e., a moral duty or something sui generis--we still have the problem of cashing it out. Where does it come from, and how does it interact (trump? displace? defer?) with a moral agent's other reasons for action? Does the NL have anything more to say about this than the LP?