Modern Natural Law Flashcards
what is Fuller’s definition of law?
‘law is the subjecting of human conduct to the governance of rules’
what is fuller’s methodology?
Fuller studies law as a purposive enerprise. He identifies the purpose of law as subjecting human conduct to the governace of rules
what does fuller call it when the law fails to attain its purpose
pathologies
what is the parable of rex?
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
what are fuller’s 8 conditions of law?
- law must be general
- published
- non-contradictory
- stable
- possible
- clear
- congruency between the rules and official behaviour
- prospective
what happens the absence of any of the 8 desiderata?
it can not properly be called a legal system
what does hart conceed to?
hart conceeds that the 8 conditions must be met to have a legal system
what is the morality of duty?
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
how do the 8 conditions show that law is moral?
morality is required in a legal system as the law do not derive vality automatically by merely being posited by authority
what is the morality of aspiration?
this allows the proceedural requirements to be used in the persuit of legal excellence
what claims does fuller make?
- That the 8 conditions are indices of legality (an archetype)
- That approximation to this ideal (the morality of aspiration) make law more moral
if fuller’s claims are correct what does he do?
break the separation thesis
will a legal system ever be a complete expression of the 8 indices?
no - conflict betwen these indices and they can only approximates these indices
why is perfect adherance to the 8 desiderata not a useful target?
- 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
what are the strengths of fuller’s theory?
- not based on abstract notions
- connection between the internal and external morality of law
- parallels with legal positivism
cricitcisms of fuller’s theory
- compliance with the principles of legality is compatible with great iniquity
- the rule of law has a negative value
- fuller conflates morality with efficacy
not based on abstract notions
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
connection between internal and external morality of law
- 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
parallels with legal positivism
fuller’s defintion of law is not disimilar to kelsen or hart’s
compliance with the princiciples of legality is compatible with great inquity
- 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
the rule of law has a negative value
- 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
the procedural basis of fuller’s theory is not moral in nature
- 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
mixing what law is with what it should be
- 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
background to the hart-fuller debate
in the context of the nazi experience, radbruch, application of natural law during the nuremberg trials
