Natural Law Theory (Finnis, Dworkin, Fuller)

Question 1

FINNIS: Purpose of Theory

Answer 1

Attack moral scepticism of positivists.

Question 2

FINNIS: Definition of Law

Answer 2

Rules which organise individuals to help us pursue the basic goods which leads to the good life.

He presupposes that the ultimate goal of every individual is the pursuing of basic goods (i.e. right to life) and the good life.

Question 3

FINNIS: Role of Law

Answer 3

Serves as the source of authority which helps us achieve basic goods by outlining how coordination occurs in society, and provided that the legal system is in service to the basic goods it is a morally good legal system.

Question 4

FINNIS: Obligation

Answer 4

Acceptance of legal system implies legal obligation. If legal system is implemented correctly, there is a moral obligation as it serves as guidance for people.

Process:

• I want to pursue basic goods.
• Society needs coordination to achieve basic goods.
• Law is an effective way of coordinating society.
• I should obey the law.

Question 5

DWORKIN: Purpose of Theory

Answer 5

Counter the views of Austin, Hart, Raz and Kelson. Law is at least in part made up of moral standards. One cannot identify what the law is without recourse to moral standards.

Question 6

DWORKIN: Main Critiques of Positivists

Answer 6

1. Content > Pedigree: Hart identifies what the law is by pedigree (whether superior rule allows it) but not content. Issue is once you reach the top (i.e. Constitution) you no longer have pedigree so you have to look at substance to ascertain its validity.
2. Moral Principles > Rules: Much more to law than rules themselves. Moral principles are bulk of the iceberg #RIPtitanic which juges refer to when they adjudicate. (Promissory estoppel / Can’t profit by your own fraud)
3. On Adjudication: Gaps in law means judges have weak discretion due to existence of moral principles; where HART thinks they have strong discretion because they are unconstrained.

HART’s Reply: RoR CAN recognise principles (i.e. HRA); moral principles can be incorporated into written law.

RAZ’s Reply: RoR doesn’t recognise moral principles but that is okay because that is the point of positivism.

Question 7

DWORKIN: On Adjudication

Answer 7

Gaps in law means judges have weak discretion due to existence of moral principles; where HART thinks they have strong discretion because they are unconstrained.

Question 8

FULLER: Purpose of Theory

Answer 8

Counter the views of Austin, Hart, Raz and Kelson. There is a necessary connection between law and morality - If the underlying moral principles fall there is no law as a result.

Question 9

FULLER: Definition of Law

Answer 9

Law contains 8 distinct procedural virtues which form the inner morality of the law. Can’t call a legal system to be valid unless all 8 virtues are followed.

HART: The procedural virtues make the law more efficient rather than more moral. Fuller’s list is compatible with South African apartheid law; so there is no connection between morality and the law.

DWORKIN / FINNIS REPLY TO HART: Dictators won’t bother with these procedures, so those who follow this procedure MUST have certain moral values which are translated into the law.