Interactional Ordering: Reconstructing Lon Fuller’s Theory of Private Law

Abstract While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking to realize their freedom socially. This horizontal normativity forms the very substantive and structural basis for the common law as a mechanism of enforcement, and emerges as the principal end that all other forms of legal and social ordering are ultimately structured around. This Article reconstructs the central tenets of interactional ordering from Fuller’s work and shows how it represents a sophisticated account of how private law normativity operates, one that abjures commitments to both Legal Positivism and Legal Realism, a move that was central to Fuller’s overall jurisprudential worldview.