8 and 9 Flashcards
Natural theorists believe that law is derived from
moral principles
- Religion e.g. bible
- reason
- nature: fundamental principles can be found in nature
According to positivits, law is valid when:
- Law made by appropriate people
- Procedures were followed
morality for positivist like Hart consists of
solely primary rules that are accepted or not
Secondary rules for morality
No general rule of recognition for identifying moral rules
Moral rules gradually evolve, no rules of chance
How is compliance to morality encouraged
Appeal to the instrinsic value of compliance rather than punishment
Minimum content of natural law
certain prohibitions are necessary for society to be viable
- rules restricting physical violence
- rules protecting property and enforcing contracts
Natural Law – an individual has an
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
Under natural law, the purpose of law is to
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.
Fuller’s argument
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
For fuller, internal morality
is the minimum conditions which every mature legal system must satisfy in order to achieve its purpose
For fuller, law must be
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
In The Morality of Law, Fuller purports to
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.
When judges are required to apply existing rules to new cases, what does Hart say?
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.
When judges are required to apply existing rules to new cases, what does Hart say?
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.
For positivists, law is that which has been
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.
How do naturalists view law
grounded in “a natural moral order.” This “natural moral order” is “out there,” as it were, to be discovered.
Naturalism holds that social and political practices and institutions fails
fails to measure up to these “higher” standards, it also fails in some fundamental sense to qualify as law.
One repeated criticism of Austin’s legal positivism was its side-stepping of the issue of what Lon Fuller called “the fidelity to law.”
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
A rule may become authoritative by (1) because
Hart calls this primary rules
a people come to accept the rule as a standard for their conduct
For any “duty” to exist in a community there must exist a “social rule”
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.
Hart believes that the natural language has
the core of determinate meanings.
While the judge decides any case that there are some lack of clearly in language,
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.
Fuller challenge was thus not
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.
Hart argues that legal interpretation involves the
discerning of meaning of language. Legal uncertainty arises due to the open texture of language, when words are capable of multiple meanings.
language has a
a core of settled meaning (where legal interpretation is a mechanical exercise) and a penumbra of uncertainty (where legal ambiguity arises);
Debate concerned
- Problem with immoral laws
- Question of legal interpretation
Immoral laws for fuller
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
Hart
Role of judge in deciding cases falling in the core and penumbra
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.
indeterminacy in the Law for fuller
the law is intrinsically purposive and therefore value laden and moral.
For fuller, legal interpretation is
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
Neither scholar answers the preliminary questions to the debate such as offering a definition of
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.
an “ideal” of “fidelity to law,” Fuller means that real law has to be
worthy of respect, loyalty, and faithfulness
Example of fuller’s legal interpretation
e.g. if the objective were to prevent environmental disturbance, a motorcycle would not be an automobile for the specifications of the law.
Both concede that a system that is immoral and unfair will not last long b/c
we cannot control the allegiance of the people and we must use repression
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
conform to the “internal morality of law”
Hart acknowledges that the rules legislators make acquire their status as law
due to “fundamental accepted rules specifying the essential lawmaking procedures”
i.e. rules of recognition
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
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
So what Fuller seems to claim is that due to the essential purpose of a legal system as
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
Fullers concept of law essentially includes moral elements, as it is
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
Law itself contains an internal morality
certain criteria which have to be met in order to work and for legal system to exist
Whereas Hart sees morality only as
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
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
e.g. cannot be ad hoc etc.
Fuller sees the inner morality of law as a “procedural version of natural law”, as
“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.”
Fuller’s position on legal validity is that in order for a law to be legally valid
must also fufil the demands by the internal morality of law.
After the collapse of the third Reich and the restauration of democracy in Germany, courts were faced with
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?
For Hart it doesn’t make any sense to deny norms
which were generated through the relevant procedures as prescribed in the prevailing rule of recognition, the status of laws
question of whether to obey law cannot be solved
in the sphere of legality, it requires a resort to standards external to law.
According to Fuller, the positivist doctrine of a strict separation between law and morality does not explain the
e ideal of fidelity to law and how it relates to our other moral duties
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
the concept of an “internal morality of law”.
For Fuller it makes no sense to say that there is an legal obligation to obey law
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
Fuller’s concern seems to be that Hart cannot adequately explain for what reasons
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
Hart does not seem to question the legal validity of laws made during the Nazi era. Rather,
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
For Hart, legal validity is a matter of
social fact, namely whether a norm conforms with the widely accepted and applied rule of recognition
Hart acknowledges the danger that the state may use
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
For Hart, a legal system is characterized as the
A legal system is thus for Hart
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
For fuller It makes for him no sense, that the question of legal validity should apply in a binary mode of yes or no
which allows for no considerations of to what degree a legal system actually realizes the demands of the idea of legality
For fuller the Nazi “legal” system showed an
extreme disregard for the demands of internal morality of law
For Fuller legal validity hinges on
law’s characteristic as a purposeful enterprise
Natural law theory holds that along with the positive law there
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).
Grudge informer case
Hart held
ecision of the court was wrong, as the Nazi law of 1934 was a valid law (as it satisfied his “rule of recognition”)
Fuller’s account of law is not
Hart, by contrast
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
Common feature of Hart and Fuller
both think a unique feature of law is the ability for it to guide behaviour by rules
hart and fuller both think a unique feature of law is that it is able to guide behaviour
How Hart sees this is possible?
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
hart and fuller both think a unique feature of law is that it is able to guide behaviour
How Fuller sees this is possible?
seems normative element a fundamental emenet of any legal system
in a society ruled by law, the law operates as a set of rules
What did Fuller applaud Hart for?
For rejecting Austin’s command theory that law is merely command backed by sanctions
Fuller argues that Hart does not draw the right
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
What does Fuller believe is the ultimate purpose of legislation
to create rules capable of guiding behaviour
Fuller argues that a legislator must abide with the following eight procedural principles
These eight principles constitute an inner morality of law
- generality
- promulgation
- prospective
- clarity
- consistency
- reasonable in their demands
- congruent
- applied by officials in a way that is congruent with the written or declared law
Fuller concludes that the 8 procedures principles are
in order to construct a system of rules that will guide behaviour
Why does Fuller believe that law will not effectively guide society’s behaviour if the 8 principles are not followed?
because people would not follow laws that are secretive, constantly changing, retrospective or contradictory
Fuller argues the eight procedural principles are in itself the
internal morality of law. They introduce moral contraints on regulators.
what is the goal of the legislator according to fuller
to create a system social order where the particular mechanism of social control guides rather than coerces behaviour
How does a system that GUIDES behaviour according to fuller influence the individual?
they will show fidelity to the law.
Fuller concludes that the eight principles make legal order possible at the same time as
ensuring the system’s law strives to achieve justice and what is right
Contraints on lawmakers under Hart’s model of system vs fuller
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
Describe the reciprocal relationship Fuller describes
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
How does Fuller see the secondary rules expounded by Hart
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
Hitler used law
to gain political power and use at his own discretion for his purposes
how do oppressive systems alter behaviour
rely heavily on threats of sanction to persuade people to obey the law rather than guiding by rules
Govern by fear not by rules
Hart’s distinction between the core and the penumbra, legal interpretation when dealing with core legal texts/ reasoning in the core
there was a single and settled right answer,
in Hart’s distinction between the core and the penumbra, legal interpretations in the penumbra,where the application is uncertain
would be responsive to contextual reasoning, and reference to extralegal standard
for Hart, reasoning in the core
is clear
urging judges dealing with core matters to avoid the contextual reasoning needed for the penumbra
Hart noted that reasoning in the penumbra
not limitless, but is usually guided by some sense of justice or coherence with other legal standard
Hart’s view that law’s basic task is guiding
human behavior through rules.
Fuller proposes that a so-called law must pass a
moral test if it is to be a law in the fullest sense (a genuine law)
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
the degree to which a system meets these requirements is the degree to which it counts as a system of law
Fuller’s 8 principles
List first 4
- laws should be general;
- they should be promulgated, that citizens might know the standards to which they are being held;
- retroactive rule-making and application should be minimised
- Laws should be understandable
Fuller’s 8 principles
List last 4
- they should not be contradictory;
- laws should not require conduct beyond the abilities of those affected;
- they should remain relatively constant through time; and
- there should be a congruence between the laws as announced and their actual administration
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.
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.
Problems of the Penumbra:
the problems which arise outside the hard core of standard instances or settled meaning.
Why is the problem of the penumbra a problem for positivism?
judges consult moral theories, that is, some concept of what the law ought to be
Critique of positivism based on problem of penumbra
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
hart’s response to problem of the penumbra
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.
Hart considers a third critique of the separation doctrine growing out of the experience with the Nazi regime
positivism had somehow contributed to the Nazi tyranny.
