Modern Natural Law Flashcards

1
Q

what is Fuller’s definition of law?

A

‘law is the subjecting of human conduct to the governance of rules’

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2
Q

what is fuller’s methodology?

A

Fuller studies law as a purposive enerprise. He identifies the purpose of law as subjecting human conduct to the governace of rules

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3
Q

what does fuller call it when the law fails to attain its purpose

A

pathologies

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4
Q

what is the parable of rex?

A

the story of a ruler who makes many attempts at writing rules and received many complaints

a response to the problem of whether we can find some widely endorsed and fruitful understandings about the nature of law from which our argument can advance

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5
Q

what are fuller’s 8 conditions of law?

A
  • law must be general
  • published
  • non-contradictory
  • stable
  • possible
  • clear
  • congruency between the rules and official behaviour
  • prospective
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6
Q

what happens the absence of any of the 8 desiderata?

A

it can not properly be called a legal system

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7
Q

what does hart conceed to?

A

hart conceeds that the 8 conditions must be met to have a legal system

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8
Q

what is the morality of duty?

A

the minimum threshold of compliance with the 8 desierata which marks the fidelity to law, if it goes below it loses its legal status and can no longer command obedience

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9
Q

how do the 8 conditions show that law is moral?

A

morality is required in a legal system as the law do not derive vality automatically by merely being posited by authority

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10
Q

what is the morality of aspiration?

A

this allows the proceedural requirements to be used in the persuit of legal excellence

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11
Q

what claims does fuller make?

A
  • That the 8 conditions are indices of legality (an archetype)
  • That approximation to this ideal (the morality of aspiration) make law more moral
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12
Q

if fuller’s claims are correct what does he do?

A

break the separation thesis

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13
Q

will a legal system ever be a complete expression of the 8 indices?

A

no - conflict betwen these indices and they can only approximates these indices

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14
Q

why is perfect adherance to the 8 desiderata not a useful target?

A
  • there may be situations where the desiderata come into conflict with each other e.g. reliving tax burdens in times of economic crisis
  • there may be situations in which adherance to the desiderata must be balanced against the external morality of law
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15
Q

what are the strengths of fuller’s theory?

A
  • not based on abstract notions
  • connection between the internal and external morality of law
  • parallels with legal positivism
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16
Q

cricitcisms of fuller’s theory

A
  • compliance with the principles of legality is compatible with great iniquity
  • the rule of law has a negative value
  • fuller conflates morality with efficacy
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17
Q

not based on abstract notions

A

Avoids the clear limitations of relying on higher authority or abstract notions as a basis for natural law and instead is grounded on the practicalities of law - removes the need for cicero’s god or plato’s realm of the forms - makes Fuller’s IMOL comapatible with theists and atheists alike

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18
Q

connection between internal and external morality of law

A
  • although the desiderata are procedural in their foundation, they transpire into the content of the laws as well e.g. nazi regime
  • the morality of aspiration overcomes arguments that morality is given an overly narrow role in relation to CNL
19
Q

parallels with legal positivism

A

fuller’s defintion of law is not disimilar to kelsen or hart’s

20
Q

compliance with the princiciples of legality is compatible with great inquity

A
  • Kramer argues that by unecessarily limitting the contrabution of morality to law, it is possible to conceive of the 8 desiderata being exploited by giving unjust laws legitimacy
  • Raz minimum compliance with the 8 desiderata is consistent with gross violations of the rule of law
  • Fuller argues that bad aims are not achieved through use of his principles
    • but look at apartheid SA and slavery in America
    • however an overall survery of the world’s regimes would suggest that evil aims are better advanced when the principles of legality are infringed - thus principles have a tendancy towards good
21
Q

the rule of law has a negative value

A
  • connection between 8 desiderata and the rule of law
  • raz argues that the rule of law is essentially a negative value - trying to minimise the damage of the law
  • fuller would argue that the RoL has some moral vaule independant of the content of law
  • Simmons: law and rule of law are not separate - compliances with the 8 principles are integeral to the very idea of law
  • finnis: the idea of the rule of law is based on the notion that a certain quality of interation between the ruler and the ruled invovling reciporoacity and procedural fairness is valuable for its own sake
  • rundle: the 8 requirements promote and express respect for human agency
22
Q

the procedural basis of fuller’s theory is not moral in nature

A
  • hart argues that fuller fails to establish the link between law and morality and instead he connects law and effiacy e.g of the good poisoner
  • raz describes them as a virture of law rather than a virture of morality e.g. like sharpness of knifes even though they can cause harm
  • but obscure: what is efficacy e.g. soviet union used retrospective laws to enact the death penatly for petter crimes as it was efficient
23
Q

mixing what law is with what it should be

A
  • the proceedural criteria that ought to govern a legal system ather than what a system of rule is
  • Finnis bypasses this by grounding natual law not in reason but in intution of what is self-evident
24
Q

background to the hart-fuller debate

A

in the context of the nazi experience, radbruch, application of natural law during the nuremberg trials

25
Q

why did fuller think the nazi regime failed as law?

A
  • the people’s court - no need to justify or consitently apply law
  • retrosepctively applied criminal acts
  • law was enacted on the streets
  • no fidelity/respect for the law
26
Q

the relevance of fuller’s theory to modern legal practice

A
  • more relevant than CLN
  • 8 conditions can be applied to complex legal systems
27
Q

what did finnis draw uopn?

A

finnis took elements of positivist law and set out to bring back to life the aristotelian theory of natural law

28
Q

how did finnis alter ‘lex injusta non est lex’?

A

legal systems can only be properly understood if we grasp that the the point or function of a legal system is a moral one - we have to adopt an internal perseceptive which is ulitmately a moral one

29
Q

finnis’ defence of natural law

A
  • he affirmed that NL had been misconceived by its critics - said it never made the illogical jump from “is” to “ought” - first principles of NL are the first principles of practial reason and are not dependant on a prior adequate knowldge of human natural
  • more agreements that disagreements between NL and LP - joined the two theories together
30
Q

finnis thoughts on the importance of positivist law

A

like aquinus finnis believed that positivist law plays an important part within natural law since it ensures the pursuit of the common good which requires authority or sanctions and coordination between citizens

31
Q

finnis stance on unjust laws

A
  • natural law stance since the focal meaning of law is to ensure the common good of the community, if a ruler uses his authority against it, those laws do not create any obligations to obey them
  • in certain situations where unjust laws should be followed as their disobedience would undermine the authority of the ruler and consquently the common good
32
Q

finnis on complete community

A
  • the basic goods can only be persued within a complete community
  • the complete community creates conditions that tend to facilitate the realisation of an indivdual’s personal development
33
Q

finnis on central cases

A

in describing the law, it is impossible to define whether something is law in every single case so should focus on the central cases e.g. in the uk the consitutional goverment rather than stalin’s russia or hitler’s germany

34
Q

hart on finnis theory

A

‘comlementary rather than a rival to the positive legal theory of law’

35
Q

finnis on the importance of the participant’s persepctive (IPOV)

A

‘the theorist must assess importance or significance in similarities and differences within his subject matter by asking what would be considered important or significant in that field by those whose concerns, decisions and activities create or consitute the subject matter’

  • affirmed importance of IPOV but within this a moral evaluation is necessary
  • shows how finnis brought the two theories together
36
Q

finnis criticism of positivism

A

characterised the descristive approach of Hart/Raz as the practical view - merges all points of view together

37
Q

what is the common good for finnis?

A

the common good consists of a set of conditions which enable the members of a community to exercise pratical reasonableness and lead flourishing lives - makes it possible to make plans and future projects a possiblity

38
Q

what are finnis 7 basic goods?

A
  • life
  • knowledge
  • play
  • aesthetic experience
  • friendship
  • practical reasonableness
  • religion
39
Q

what is finnis central case of law?

A

the common good - rejects the idea that the union of primary and secondary rules are the central case of law

40
Q

how are the goods achieved?

A

through practical reasonableness - allows for some degree of self-preference but also requires that we should be concerned for the common good

41
Q

finnis - self-evidence of the goods

A
  • they are good for us whether we desire them or not
  • they are self-edivent as they are good
  • to rebut his thesis you must show that they are not objectively good
  • things that are not good have to be justified - e.g. killing a baby v looking after one
42
Q

the goods as pre-moral

A

morality is working out how to achieve the goods and maintain them and working how we can live together and flourish

43
Q

hart’s thin theory of natural law

A
  • concession to natural law - minimum theory of natural law
  • The minimum content of natural law would not make it moral but some laws are necessary for humans to live together but it does not mean they have to have a moral content or make that rule legal
44
Q

hart - features that make restraints necessary on human behaviour

A
  • human vulnerablity
  • approximate equality
  • limited altruism
  • limited resources
  • limited understanding and strength of will