Can an Unpublished Rule Fairly Bind People?

An apartment manager has a car towed today because its owner breached a new parking rule written last week but never disclosed to residents. The office may genuinely have written the rule, yet ‘a rule exists in a file’ and ‘a rule can guide conduct’ are not the same claim.

In The Morality of Law, Lon Fuller treats promulgation as one of the basic conditions under which law can operate as law. Rules should not merely give authority a reason for imposing a sanction after the event. They must let people know the boundaries beforehand and organise their conduct accordingly. Fuller calls requirements including publicity, clarity, prospectivity and congruence between written rules and their administration law’s ‘internal morality’. This does not mean that any clear, public law must be just; its content may still be appalling. The further dispute is whether a command that gravely lacks these features is bad law or has ceased to be law-like.

My judgement is that a secret rule may be enforceable, but it cannot make the same claim to obedience or fairly support punishment. If the car blocked a fire lane, the conduct might be wrong for an independent safety reason. The manager still cannot use an undisclosed provision as an additional basis for blame. Publicity is not decorative notice-giving; it is part of what turns a unilateral command into a rule people can share and follow.

https://plato.stanford.edu/entries/rule-of-law/
https://iep.utm.edu/law-phil/