8 and 9

Question 1

Natural theorists believe that law is derived from

Answer 1

moral principles

1. Religion e.g. bible
2. reason
3. nature: fundamental principles can be found in nature

Question 2

According to positivits, law is valid when:

Answer 2

1. Law made by appropriate people
2. Procedures were followed

Question 3

morality for positivist like Hart consists of

Answer 3

solely primary rules that are accepted or not

Question 4

Secondary rules for morality

Answer 4

No general rule of recognition for identifying moral rules

Moral rules gradually evolve, no rules of chance

Question 5

How is compliance to morality encouraged

Answer 5

Appeal to the instrinsic value of compliance rather than punishment

Question 6

Minimum content of natural law

Answer 6

certain prohibitions are necessary for society to be viable

1. rules restricting physical violence
2. rules protecting property and enforcing contracts

Question 7

Natural Law – an individual has an

Answer 7

an obligation to disobey laws which are incompatible with higher moral principles.

Natural Law is that set of universal moral principles starting with the principle do good and avoid evil

Question 8

Under natural law, the purpose of law is to

Answer 8

Purpose of law is to promote the common good. At times we can be obliged to disobey the law if a law is detrimental to the common good.

Question 9

Fuller’s argument

Answer 9

law must contain a minimum of moral content for it to be characterised as law

If a law did not satisfy the minimum moral content, it could not legitimately command the obedience of its citizens

Question 10

For fuller, internal morality

Answer 10

is the minimum conditions which every mature legal system must satisfy in order to achieve its purpose

Question 11

For fuller, law must be

Answer 11

Law must be good to be obeyed, evil orders ought to be disobeyed – must be a minimum content of good for the law to be valid

Question 13

In The Morality of Law, Fuller purports to

Answer 13

to provide a set of criteria for identifying the existence of legal systems which has an emphasis on ʻprocedural natural lawʼ aka ʻthe internal morality of the law.ʼ

These criteria are generality, promulgation, non-retroactivity, clarity, non-contradiction, not requiring the impossible, constancy through time and, finally, congruence between official action and the declared rule.

Question 14

When judges are required to apply existing rules to new cases, what does Hart say?

Answer 14

Judge can look at broader social policies as well as at the purposes of the rule.

Relying on social policy and the purposes of the legislation does not necessarily require judges to make moral judgments or to insert their own opinion into the outcome.

Question 15

When judges are required to apply existing rules to new cases, what does Hart say?

Answer 15

These penumbral cases can be resolved by turning to accepted social policies as well as at the purposes of the rule.

not necessarily moral judgments or to insert their own opinion into the outcome.

Question 16

For positivists, law is that which has been

Answer 16

posited i.e. i.e., “made,” “enacted,” or “laid down” in some prescribed fashion. In this regard, it is a deeply human product, an invention, “artificial” rather than “natural.” It is neither given nor discovered, but made.

Question 17

How do naturalists view law

Answer 17

grounded in “a natural moral order.” This “natural moral order” is “out there,” as it were, to be discovered.

Question 18

Naturalism holds that social and political practices and institutions fails

Answer 18

fails to measure up to these “higher” standards, it also fails in some fundamental sense to qualify as law.

Question 19

One repeated criticism of Austin’s legal positivism was its side-stepping of the issue of what Lon Fuller called “the fidelity to law.”

Answer 19

People generally show respect for the law or exhibit a sense of obligation to adhere to this or that legal statute because they believe it (the statute) to be authoritative in some way

Question 20

A rule may become authoritative by (1) because

Hart calls this primary rules

Answer 20

a people come to accept the rule as a standard for their conduct

Question 21

For any “duty” to exist in a community there must exist a “social rule”

Answer 21

a practice of convergent behavior among individuals in that community, where the individuals accept the rule describing that behavior from an “internal point of view” – they accept it as a standard justifying their own conformity with the pattern and as a basis for criticizing deviation from the pattern.

Question 22

Hart believes that the natural language has

Answer 22

the core of determinate meanings.

Question 23

While the judge decides any case that there are some lack of clearly in language,

Answer 23

judge has to extend the law and make the law more specific in order to make the decision.

When the judge decides any penumbra cases, he or she is making new laws. e.g. corn dog counted as sausages, new rule would be formed and more determinate.

Question 24

Fuller challenge was thus not

Answer 24

Hart’s conception of the penumbra, with which Fuller presumably would have had little quarrel.

Rather, the hypothetical truck/memorial was a challenge to the idea of a language-determined core. it was never possible to determine whether a rule applied without understanding the purpose that the rule was supposed to serve.

Question 25

Hart argues that legal interpretation involves the

Answer 25

discerning of meaning of language. Legal uncertainty arises due to the open texture of language, when words are capable of multiple meanings.

Question 26

language has a

Answer 26

a core of settled meaning (where legal interpretation is a mechanical exercise) and a penumbra of uncertainty (where legal ambiguity arises);

Question 27

Debate concerned

Answer 27

1. Problem with immoral laws
2. Question of legal interpretation

Question 28

Immoral laws for fuller

Answer 28

the law possesses an internal morality which will pull legal decisions towards moral “goodness.” This is seen as a form of procedural morality within the law

Question 29

Hart

Role of judge in deciding cases falling in the core and penumbra

Answer 29

In cases where the meaning of words is determinate, it is the judge’s role to simply apply the law.

If the meaning of words is uncertain, it is the judge’s role to administer and develop the law.

Question 30

indeterminacy in the Law for fuller

Answer 30

the law is intrinsically purposive and therefore value laden and moral.

Question 31

For fuller, legal interpretation is

Answer 31

purposive exercise of statutory interpretation. The judge does not go beyond law but looks at the intrinsic purpose of the law itself.

The judge therefore is a decision-finder, not necessarily a decision-maker

Question 32

Neither scholar answers the preliminary questions to the debate such as offering a definition of

Answer 32

morality and law and whose morality is being discussed. They engage as if they both assume a common ground of what morality is and what it constitutes.

Question 33

an “ideal” of “fidelity to law,” Fuller means that real law has to be

Answer 33

worthy of respect, loyalty, and faithfulness

Question 34

Example of fuller’s legal interpretation

Answer 34

e.g. if the objective were to prevent environmental disturbance, a motorcycle would not be an automobile for the specifications of the law.

Question 35

Both concede that a system that is immoral and unfair will not last long b/c

Answer 35

we cannot control the allegiance of the people and we must use repression

Question 36

Fuller rejects Hart’s strict separation between law and morality. He wants to show that in order for law to be legally valid, it must

Answer 36

conform to the “internal morality of law”

Question 37

Hart acknowledges that the rules legislators make acquire their status as law

Answer 37

due to “fundamental accepted rules specifying the essential lawmaking procedures”

i.e. rules of recognition

Question 38

Hart acknowledges that the rules legislators make acquire their status as law due to “fundamental accepted rules specifying the essential lawmaking procedures”

for fuller these fundamental rules

Answer 38

are treated as laws, yet they their source is different than that of ordinary law. In Fuller’s view these fundamental procedures are accepted as something good, as contributing to a good order, hence they are also moral rules

Question 39

So what Fuller seems to claim is that due to the essential purpose of a legal system as

Answer 39

contributing to good order, its acceptance is a genuinely moral act; therefore the rule of recognition as the ultimate rule of the legal system belongs not just to the legal, but also to the moral sphere

Question 40

Fullers concept of law essentially includes moral elements, as it is

Answer 40

an enterprise conducted for the purpose of subjecting human conduct to explicit rules, and “this enterprise contains a certain inner logic of its own, that […] imposes demands that must be met […] if its objectives are to be attained

Question 41

Law itself contains an internal morality

Answer 41

certain criteria which have to be met in order to work and for legal system to exist

Question 42

Whereas Hart sees morality only as

Answer 42

Whereas Hart sees morality only as external to law as an empirical social fact, which does not necessarily contain moral elements, for Fuller there is also an internal morality of law

Question 43

For fuller, what rules are necessary for a legal system? i.e. criteria of internal morality that laws must satisfy for it to be valid

Answer 43

e.g. cannot be ad hoc etc.

Question 44

Fuller sees the inner morality of law as a “procedural version of natural law”, as

Answer 44

“not [concerned] with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be.”

Question 45

Fuller’s position on legal validity is that in order for a law to be legally valid

Answer 45

must also fufil the demands by the internal morality of law.

Question 46

After the collapse of the third Reich and the restauration of democracy in Germany, courts were faced with

Answer 46

with the difficult problem of how to deal with those legal rules made by the Nazi regime. Could it be said that these rules were legally valid?

Question 47

For Hart it doesn’t make any sense to deny norms

Answer 47

which were generated through the relevant procedures as prescribed in the prevailing rule of recognition, the status of laws

Question 48

question of whether to obey law cannot be solved

Answer 48

in the sphere of legality, it requires a resort to standards external to law.

Question 49

According to Fuller, the positivist doctrine of a strict separation between law and morality does not explain the

Answer 49

e ideal of fidelity to law and how it relates to our other moral duties

Question 50

According to Fuller, the positivist doctrine of a strict separation between law and morality does not explain the ideal of ĕdelity to law and how it relates to our other moral duties

Fuller tries to close this gap by developing the

Answer 50

the concept of an “internal morality of law”.

Question 51

For Fuller it makes no sense to say that there is an legal obligation to obey law

Answer 51

which contradicts the internal morality of law

i is because of the essential moral elements of law that it can create the ideal of fidelity to law.

For in Fuller’s theory of law, citizens accept law as a “purposeful enterprise” which has an internal morality. theireir obligation to obey the law depends on whether these criteria are met by the legal system

Question 52

Fuller’s concern seems to be that Hart cannot adequately explain for what reasons

Answer 52

s citizens may feel obliged to follow legal rules.

this concern is apparent in Fuller’s critique of Hart’s concept of the rule of recognition

Question 53

Hart does not seem to question the legal validity of laws made during the Nazi era. Rather,

Answer 53

he refers to the Nazi era in order to make the case for a separation between law and morals very strong

No doubt that laws under nazi system and the legal system is valid

Question 54

For Hart, legal validity is a matter of

Answer 54

social fact, namely whether a norm conforms with the widely accepted and applied rule of recognition

Question 55

Hart acknowledges the danger that the state may use

Answer 55

the legal system to oppress people, but he denies that there is a necessary connexion between law and morality above his minimum content of Natural Law

Question 56

For Hart, a legal system is characterized as the

A legal system is thus for Hart

Answer 56

as the factual existence of an union of primary rules of obligation, that concern the actions of individuals, and secondary rules that concern the primary rules.

A legal system is thus for Hart a social fact, a specic mode of how a society exerts control through social rules

Question 57

For fuller It makes for him no sense, that the question of legal validity should apply in a binary mode of yes or no

Answer 57

which allows for no considerations of to what degree a legal system actually realizes the demands of the idea of legality

Question 58

For fuller the Nazi “legal” system showed an

Answer 58

extreme disregard for the demands of internal morality of law

Question 59

For Fuller legal validity hinges on

Answer 59

law’s characteristic as a purposeful enterprise

Question 60

Natural law theory holds that along with the positive law there

Answer 60

exist certain ideal principles or values to which the positive law should correspond if it is to be regarded as genuine law

natural law theory requires in addition that such law, to be valid, must conform to some ideal principle (which may emanate from morality, reason, God, or some other such source).

Question 61

Grudge informer case

Hart held

Answer 61

ecision of the court was wrong, as the Nazi law of 1934 was a valid law (as it satisfied his “rule of recognition”)

Question 62

Fuller’s account of law is not

Hart, by contrast

Answer 62

conceptual but rather on practical insights on how a legal system works

is primarily concerned with defining the concept of law through conditions for a legal system to exist

Question 63

Common feature of Hart and Fuller

Answer 63

both think a unique feature of law is the ability for it to guide behaviour by rules

Question 64

hart and fuller both think a unique feature of law is that it is able to guide behaviour

How Hart sees this is possible?

Answer 64

By developing internal aspect of rules, he sees laws as normative —> act as guides to conduct –> because of this normative element, people obey the law

Question 65

hart and fuller both think a unique feature of law is that it is able to guide behaviour

How Fuller sees this is possible?

Answer 65

seems normative element a fundamental emenet of any legal system

in a society ruled by law, the law operates as a set of rules

Question 66

What did Fuller applaud Hart for?

Answer 66

For rejecting Austin’s command theory that law is merely command backed by sanctions

Question 67

Fuller argues that Hart does not draw the right

Answer 67

conclusions from his claim that law is a system of rules. To accept law as a fundamental system of rules is also to accept there is no sharp distinction between law and morality

Question 68

What does Fuller believe is the ultimate purpose of legislation

Answer 68

to create rules capable of guiding behaviour

Question 69

Fuller argues that a legislator must abide with the following eight procedural principles

Answer 69

These eight principles constitute an inner morality of law

1. generality
2. promulgation
3. prospective
4. clarity
5. consistency
6. reasonable in their demands
7. congruent
8. applied by officials in a way that is congruent with the written or declared law

Question 70

Fuller concludes that the 8 procedures principles are

Answer 70

in order to construct a system of rules that will guide behaviour

Question 71

Why does Fuller believe that law will not effectively guide society’s behaviour if the 8 principles are not followed?

Answer 71

because people would not follow laws that are secretive, constantly changing, retrospective or contradictory

Question 72

Fuller argues the eight procedural principles are in itself the

Answer 72

internal morality of law. They introduce moral contraints on regulators.

Question 73

what is the goal of the legislator according to fuller

Answer 73

to create a system social order where the particular mechanism of social control guides rather than coerces behaviour

Question 74

How does a system that GUIDES behaviour according to fuller influence the individual?

Answer 74

they will show fidelity to the law.

Question 75

Fuller concludes that the eight principles make legal order possible at the same time as

Answer 75

ensuring the system’s law strives to achieve justice and what is right

Question 76

Contraints on lawmakers under Hart’s model of system vs fuller

Answer 76

For fuller, lawmakers must ensure all 8 principles are satisfied.

For Hart, the secondary rules essentially confers legislative power on lawmakers with limited constraint. This is made clear when he forebodes that even wicked men can use law

Question 77

Describe the reciprocal relationship Fuller describes

Answer 77

Fuller finds that guiding by rules requires a reciprocal relationship between citizens and gov.

Gov: these are the rules we expect you to follow. If you follow, these rules will apply. earns respect and fidelity of those who are governed

Individual: are provided with reilable and predictable rules

Question 78

How does Fuller see the secondary rules expounded by Hart

Answer 78

b/c of the recirprocal relationship between legislators and individuals with legislators having a duty to provide reliable and predictable rules, the power conferring secondary rule effectively guides behaviour

Question 79

Hitler used law

Answer 79

to gain political power and use at his own discretion for his purposes

Question 80

how do oppressive systems alter behaviour

Answer 80

rely heavily on threats of sanction to persuade people to obey the law rather than guiding by rules

Govern by fear not by rules

Question 81

Hart’s distinction between the core and the penumbra, legal interpretation when dealing with core legal texts/ reasoning in the core

Answer 81

there was a single and settled right answer,

Question 82

in Hart’s distinction between the core and the penumbra, legal interpretations in the penumbra,where the application is uncertain

Answer 82

would be responsive to contextual reasoning, and reference to extralegal standard

Question 83

for Hart, reasoning in the core

Answer 83

is clear

urging judges dealing with core matters to avoid the contextual reasoning needed for the penumbra

Question 84

Hart noted that reasoning in the penumbra

Answer 84

not limitless, but is usually guided by some sense of justice or coherence with other legal standard

Question 85

Hart’s view that law’s basic task is guiding

Answer 85

human behavior through rules.

Question 86

Fuller proposes that a so-called law must pass a

Answer 86

moral test if it is to be a law in the fullest sense (a genuine law)

Question 87

Fuler identifies the dentify what the internal morality of a system of legal rules. what makes up this internal morality

These are eight “principles of legality”. what do these principles do

Answer 87

the degree to which a system meets these requirements is the degree to which it counts as a system of law

Question 88

Fuller’s 8 principles

List first 4

Answer 88

1. laws should be general;
2. they should be promulgated, that citizens might know the standards to which they are being held;
3. retroactive rule-making and application should be minimised
4. Laws should be understandable

Question 89

Fuller’s 8 principles

List last 4

Answer 89

5. they should not be contradictory;
6. laws should not require conduct beyond the abilities of those affected;
7. they should remain relatively constant through time; and
8. there should be a congruence between the laws as announced and their actual administration

Question 90

it is possible for a regime to meet all eight of Fuller’s legal requirements, yet still be wicked, e.g. by meticulously following a system of laws the contents of which are wicked.

Answer 90

This misses Fuller’s point. He does not claim that any system that includes these procedures is thereby perfectly moral.

his view is that the procedures embodied in a legal system are morally important and determine whether a set of rules really count as a legal system.

Question 91

Problems of the Penumbra:

Answer 91

the problems which arise outside the hard core of standard instances or settled meaning.

Question 92

Why is the problem of the penumbra a problem for positivism?

Answer 92

judges consult moral theories, that is, some concept of what the law ought to be

Question 93

Critique of positivism based on problem of penumbra

Answer 93

Instead of saying that the recurrence of penumbral questions shows us that legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate & so exercise a creative choice between alternatives, we shall say that the social policies which guide the judges´ choice

Question 94

hart’s response to problem of the penumbra

Answer 94

it is true that the intelligent decision of penumbral questions is one made not mechanically but in the light of aims, purposes, and policies, though not necessarily in the light of anything we would call moral principles.

Question 95

Hart considers a third critique of the separation doctrine growing out of the experience with the Nazi regime

Answer 95

positivism had somehow contributed to the Nazi tyranny.