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