responses to legal positivism (e.g. Dworkin and constructive interpretation, Fuller, strong and weak natural law theories) Flashcards
9-12
Q: What is the key claim of Substantive Natural Law theories?
A: Law must conform to objective moral standards; social facts alone are not enough for something to count as true law.
Q: What are the two core elements of Natural Law Theory (NLT)?
A: (1) There are objective, universal moral precepts; (2) Law must conform to these moral precepts to be genuine law.
Q: What is the Strong Natural Law Thesis?
A: Immoral laws are not legally valid and thus not laws at all.
Q: What is the Weak Natural Law Thesis?
A: Immoral laws are still legally valid but are defective as laws because they fail to meet law’s moral ideal.
Q: What does it mean for law to be “defective” according to natural law theorists?
A: A defective law fails to fulfill law’s essential purpose (e.g., common good), similar to a broken clock still being a clock.
Q: What is procedural natural law theory?
A: Procedural natural law theory focuses on the procedures and conditions under which laws are made and administered, emphasizing that a legal system must exhibit internal morality. It’s concerned with how laws are created and applied, rather than their substantive moral content. FULLER
Q: What is Fuller’s critique of Hart’s legal positivism?
A: Fuller argues that Hart’s theory lacks a moral foundation for law. The ultimate rule of recognition (URR) is amoral, and Fuller asserts that law cannot be morally neutral; acceptance of law must be based on moral grounds.
Q: What is the “gap” Fuller identifies in Hart’s theory?
A: Fuller criticizes Hart for failing to explain why we feel obligated to obey the law. Hart’s amoral URR doesn’t connect legal obligations to broader moral duties, leaving a “gap” in the understanding of legal obligation.
Q: According to Fuller, what is essential for law to function?
A: For law to be effective, it must create order and guide conduct. Fuller argues that a system of arbitrary or capricious rules cannot provide the necessary order to qualify as a legal system.
Q: Why does Fuller argue his account is a natural law theory?
A: Fuller’s system ensures internal morality because it creates a framework that protects people’s autonomy. By providing transparent and predictable rules, it allows citizens to live according to their own moral conceptions, as long as they adhere to the law.
Q: What does Fuller mean by “law as order”?
A: Fuller argues that law is an activity aimed at creating order. For law to be effective, it must guide conduct and ensure that society functions in an orderly manner. If a system of rules fails to provide this, it is not a true legal system.
Q: How does Fuller critique the positivist concept of “fidelity to law”?
A: Fuller argues that the positivist idea of “fidelity to law” is inadequate because it doesn’t provide a moral explanation for the duty to obey the law. He claims that positivism fails to link legal obligation with moral obligations.
Q: What does Fuller believe about the obligation to obey the law?
A: Fuller believes that when the 8 procedural conditions are met, there is a moral obligation to obey the law. He questions whether immoral systems (e.g., laws that denied women the vote) that met these conditions would create such an obligation.
Q: What is the interpretive model of law?
A: The interpretive model focuses on how judges interpret the law, adjudicate disputes, and apply their interpretations to facts. Both Fuller and Dworkin support non-positivism through their accounts of how judges interpret law.
Q: How does Fuller approach the interpretation of laws?
A: Fuller believes laws should be interpreted based on their “spirit” or purpose, not just their “plain meaning.” This can involve non-legal or moral considerations, such as what a reasonable person would think the moral purpose of the law is.
Q: What is the difference between Hart and Fuller on interpreting law?
A: Hart views the letter of the law as the “core” and believes judges are not obligated to apply laws if they are unreasonable. Fuller, however, believes that even when the letter of the law is clear, the real law is the spirit of the rule, which may override the plain meaning.
Q: How does Dworkin view legal interpretation?
A: Dworkin suggests that in hard cases, judges face theoretical disagreement and engage in “constructive interpretation.” They aim to interpret the law in a way that fits both its history and implicit moral purpose.
Q: How is legal interpretation like writing a chain novel?
A: In both, the goal is to create a unified whole where each new addition fits with and advances the themes of the previous parts, similar to how legal decisions should align with prior rulings and principles.
