“The first desideratum of a system for subjecting human conduct to the governance of rules is an obvious one: there must be rules. This may be stated as the requirement of generality.”
— Lon Fuller, The Morality of Law (1964 ad).
“When therefore the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver’s pronouncement because of its absoluteness is defective and erroneous, to rectify the defect . . . . This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality.”
— Aristotle, Nicomachean Ethics (4th century bc).
In 1963, the year of John F. Kennedy’s assassination and the year the South erupted in violent white backlash against the Civil Rights Movement,
Lon Fuller delivered the William L. Storrs Lectures at Yale Law School.
He titled his lectures the Morality of Law and in them took issue with what he saw as the core failing of the legal realist movement—that is, the separation of law and morality.
As the centerpiece of his lectures, Fuller offered eight principles that, if followed, promised law would be less likely to perpetrate the worst of injustices: generality, publicity, prospectivity, clarity, consistency, reasonableness, durability, and congruence with state action.
Fuller took his first principle for granted, offering in support only that “the requirement of generality rests on the truism that to subject human conduct to the control of rules, there must be rules.”
The generality requirement needed no support because generality formed the heart of the very definition of law.
To be law, law must be general.
A specific law, to Fuller, was at risk of being declared not law at all. He offered two examples in his lectures: administrative agencies and “private bills” or “special legislation.”
He declared the former a failure in making law: “In recent history perhaps the most notable failure to achieve general rules has been that of certain of our regulatory agencies . . . .”
The latter presented a more complicated case.
Private bills did not violate the desideratum of generality because they treated similarly situated people differently; rather, they violated the generality requirement simply by not being general and, therefore, not establishing law at all.
Yet the complexity of “private bills” and the movement to prohibit them continued to haunt Fuller. When fashioning the published manuscript of his lectures in The Morality of Law, he appended a footnote that explored the complexity of private bills in greater depth.
In this footnote, Fuller cited to the Index of State Constitutions, which documented the ubiquity of prohibitions against specific legislation at the state level.
Yet, rather than embracing these prohibitions as reinforcing the generality requirement, Fuller puzzled over them. These prohibitions, he observed, had “produced much difficulty for courts and legislatures.”
To illustrate the difficulty, Fuller described one of the “apparently disingenuous” devices used by legislatures to circumvent the prohibition—that of passing a general rule that applied conditionally “to all cities in the state which according to the last census had a population of more than 165,000 and less than 166,000.”
While “apparently disingenuous,” Fuller was quick to defend the circumvention: “Before condemning this apparent evasion we should recall that the one-member class or set is a familiar and essential concept of logic and set theory.”
Specific laws, according to Fuller, could be used to abuse power—in the context of criminal law, in particular—but they were also necessary when regulating a diverse world.
It was the recognition of American pluralism and the need to accommodate it in the lawmaking process that brought Fuller in line with Aristotle: Law must aspire to generality. But specificity must intervene when law fails because of that generality, and general law is destined to fail in a plural society. Plural societies, as Lon Fuller observed, are teeming with “one-member class[es].”
Fuller defined his puzzle in terms of generality and specificity. But the dynamic he identified is better understood as what Aristotle defined as “equity”—that is, the process that pushes general laws toward specificity when those laws fail because of their generality.
It is this dynamic process, between general rules and equity, that this Article aims to identify and theorize. Notably, Fuller identified this puzzle by bringing to bear the empirical realities of lawmaking upon his abstract model. Initially, in delivering his lectures, Fuller dismissed private bills and administrative lawmaking out of hand. But by further reflecting on the reality of regulating “one-member classes,” not only does Fuller begin to sketch a nascent model of the tensions inherent in equity, he begins to identify the centrality of administrative rulemaking and private bills to equity outside the courts. In undertaking his ad hoc empiricism, Fuller inadvertently joined Pierre Bourdieu’s campaign to develop a “rigorous science of the law” that draws upon empiricism in order to better understand the fundamental nature of law and legal systems.
Bourdieu contrasted his “science of the law” against the discipline of “jurisprudence”—a discipline subscribed to by Fuller and, according to Pierre Bourdieu, a field unable to ever wholly bridge the seeming contradiction that law is simultaneously fixed, yet also malleable by society over time.
Because Fuller did not explore in depth those empirical realities, his principle of generality remains incomplete.
Aristotle suggests that equity is predominantly the province of judges and lawmakers.
He, as well as Fuller, paid far less attention to the role of the one-member classes in shaping the characteristics of law and in defining equity. A more empirically grounded study of the history of American lawmaking, especially into the realities of legislatures within the United States, reveals a more complex model of lawmaking and equity than the simple, top-down model proffered by Fuller and others. Now primarily seen as an interpretive problem for courts to muddle through as they apply general law to a specific set of facts,
the question of what to do when law fails because of its generality used to be the province of legislatures—that is, something for the legislative process to solve. If a general law would cause unfortunate or unforeseen consequences, the aggrieved could file a petition in their state legislature or Congress seeking an exception or amendment.
Given the evolution of our lawmaking institutions, today this work is largely done by the courts and administrative state.
Belying this history, modern models and theories of equity focus almost entirely on the role of courts—for example, in discussing the fusion of law and equity,
the role of equitable remedies,
and statutory interpretation’s ongoing battle between textualism and purposivism
—with some scattered mention of the equitable work done by administrative agencies.
But these models overlook the important—and distinctive—equitable work done within legislatures throughout American history.
This Article offers equity outside the courts as a dynamic and discursive process and one that has long been integral to American lawmaking. Historically, equity within legislatures was a bottom-up process, driven largely by Fuller’s one-member classes. Individuals and minorities insisted on their right to be heard by lawmakers, brought their own moral judgments to bear on the unfortunate and unforeseen consequences of general laws, and petitioned their legislatures for exceptions and amendments to those earlier codified general laws. Fuller argued that generality kept law and morality conjoined.
But the opposite may also prove true. Specific laws are often a result of empowered individuals and minorities practicing equity—that is, insisting that lawmakers take note of varied circumstances and varied visions of justice while reforming general laws through exceptions and amendments. Rather than accepting Fuller’s proposition that generality is the primary principle holding together law and morality, this Article argues that specific law can sometimes be the result of previously dominated groups successfully wielding power to shape law and legal institutions. Thus, law more likely embodies justice when lawmaking institutions strike the proper balance of generality and specificity.
Given the centrality of equity to the legislative process, this Article also fashions two historical case studies to better understand the dynamics of equity empirically. These case studies bring together, for the first time, two distinct historiographies to study the process of equity as it operated within national and subnational legislatures, articulate the dynamics of this distinctive form of equity, and build a more nuanced and accurate model of equity as it has operated within the United States. One historical strain documents the state-level revolt against private bills and local lawmaking in the early to mid-nineteenth century cited by Fuller,
and the other charts the celebration of private bills and the petition process generally at the national level well into the twentieth century.
These two distinctive and conflicting responses to equity outside of the courts offer interesting lessons for equity more broadly.
A deeper appreciation of these histories—national, state, and local—has much to offer our understanding of law and equity. In particular, they teach that equity is not simply a dynamic borne into courts from the structure of law and the necessity of interpretation
but also that practices of seeking equity in the United States originated outside the courts and largely remained within legislatures for the first five decades following this country’s birth. Moreover, equity outside the courts often takes on a more discursive and bottom-up form than does our traditional court-focused model of equity as it is driven largely by public advocacy and engagement.
These sharply diverging histories also illustrate the inadvertent consequences that arise when practices of seeking equity are foreclosed within legislatures—here, through the mandating of general laws and the prohibition of private bills. Foreclosing practices of seeking equity within legislatures—which may have offered a more level playing field for dominated groups—often disadvantages the most politically vulnerable in a population and forces them to seek equitable redress elsewhere. These other fields may have greater barriers to entry than legislatures, including the requirement of professional expertise or other forms of social capital. The first case study documents a state-level movement against equity by state and local lawmakers in the mid-nineteenth century aimed at ending government capture and “democratizing” the lawmaking process—particularly, by opening access to corporate charters.
The state-level movement accomplished these aims by forcing state legislatures toward general laws.
A byproduct of this forced generality was the closure of equitable channels into legislatures—a particular disadvantage for individuals and minorities who could not wield electoral power because they either were unenfranchised or could never command majority rule.
But this case study also illustrates the persistent and hydraulic nature of equity: Many of these individuals and minorities continued to seek equitable redress through administrative processes and the courts. The second case study documents equity outside the courts at the federal level where, by contrast, equitable practices continued in earnest within Congress well into the twentieth century—potentially a result of federal law regulating an even broader and more diverse national landscape, foreclosing the possibility of a blanket prohibition against specific lawmaking.
Although members of Congress referred to the institution as “a court of equity” well into the late nineteenth century, Congress quickly became overwhelmed by the workload required to satisfy demands for equity by the public; it began to siphon equitable practices into innovative forms of commissions, boards, and agencies—an apparatus to which we now refer as the administrative state—and into the federal courts.
Both histories chart the path of equity over time, from a practice predominantly focused on legislatures to one that focused on the courts and administrative agencies. These histories reveal the fundamental connection between the two areas of lawmaking puzzled over by Fuller during his lectures—administrative lawmaking and private bills—and the integral role each played in fostering equity. In revealing these connections, these histories teach that prevailing theories about the rule of law might be too simplistic in prioritizing generality and could overlook the complicated but integral role of equity—especially when making law to govern large, heterogeneous, and plural jurisdictions.
Modern lawmaking institutions maintain, like Fuller does, a blind fidelity to generality as ideal within the lawmaking process. These institutions struggle to strike the proper balance between maintaining the ideal of generality and allowing equity to work specificity into law. Understanding equity as a process that originated within American legislatures offers lessons for better resolving these struggles. First, they show how current approaches to generality and specificity—that is, unquestioned praise for general laws and suspicion of specific laws—may be misguided.
The ideal of generality may be a historically contingent solution to particular crises of governance and not a principle that promises that laws remain just. Specific law might fulfill an equally important role in the lawmaking process and could result from dominated groups engaging in practices of seeking equity and successfully shifting existing power relationships. Second, this Article recommends that legislatures address concerns over corruption and special interest capture head-on, rather than assuming that specific laws are somehow intrinsically flawed, wholly unnecessary, or even readily identifiable.
Finally, these histories reveal the hydraulics of equity—that is, to the extent that one institution is closed to practices of equity, the public will force equity elsewhere. As a consequence, this means that mandating general laws could result in the courts and the administrative state playing a greater role in the lawmaking process through equitable interpretation and administrative lawmaking.
Similarly, prohibiting equitable interpretation by courts and mandating textualism will press legislatures and administrative agencies away from a principle of generality and toward more specific lawmaking. Identifying this hydraulic process could provide important lessons for modern advocates for general laws, textual interpretation, and the abolition of administrative lawmaking: These positions are, in essence, aiming to ban equity from our lawmaking process entirely. Not only might banning equity from our lawmaking process be unwise, it may also be antithetical to the way that American lawmaking has always functioned, with law and equity in constant conversation.
This Article proceeds in four parts. Part I introduces the concept of equity within legislatures and articulates it as a concept beyond the meaning ascribed to it historically: legislatures overriding court judgments in the name of equity. Part I next addresses generality and specificity in lawmaking with a review of the theoretical literature to date and then explores the implications for theorization of generality and specificity of legislative equity. Part II describes case studies that present the two strains of historiography that have developed around the “private bill system” and local lawmakers at the subnational level and the “petition process” at the national level. Part III surveys modern struggles within courts, legislatures, and administrative agencies to address rule of law concerns raised by specificity. Part IV explores the historical case studies to better theorize equity outside the courts and offer lessons to better resolve modern struggles over generality and specificity, before concluding.