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Lecture 3

Lecture 3 - Fuller.docx

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Mark Clamen

LON FULLER (1902-1978) Lon Luvois Fuller was professor of Law at Harvard University. This week’s readings are two texts by Lon Fuller: 1) An excerpt from The Morality of Law (1969) 2) An excerpt from “Positivism and Fidelity to Law – A Reply to Prof. Hart” (1958) For Fuller: An account (like Hart’s) will either be: a) Incomplete, i.e. missing something essential in its account of law, or b) Concealing a hitherto unknown morality, but under another name or unobserved. NATURAL LAW THEORY Fuller Believes that the validity/existence conditions for law will (necessarily) include some moral criteria. In other words: a full account of the nature and function of law is not possible without including a moral account. EX: 1944- West German court stated that there was no law, morally outrageous (Saint) Thomas Aquinas But for Aquinas (and not for Fuller), natural law is the moral law. Aquinas: 1) To be moral to act in conformity with our nature, or with nature itself. Our morality is being true to ourself. To be a good person, we must act within our nature  Morality is given by our nature (human)  Universal validity  As far as you’re human, you’re subject to these morals o Inhumane – crimes against humanity  Non- relativity – morality applies to all ppl at all times o Might disagree with the content of what exactly constitutes absolute morality 2) This natural law is discoverable by reason. (For Aquinas, any rational creature can ascertain the natural moral law through his/her reason alone.) 1) Divine law: laid done by God and concerned with our ultimate salvation (perhaps best described as the relations between ourselves, or our souls, and God. a. Not very accessible 2) Natural law: is comprised of those precepts of the divine law that govern the behaviour of beings possessing reason and free will. 3) Human law: these are rules that written by us, the so-called positive law Fuller didn’t agree with any of this.  He believes that morality gives us a firm stance to asses and evaluate positive law in its entirely  Universal rules, which apply to all rational beings "[E]very human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law". – Aquinas Which means that: 1) There can be no legally valid standards that conflict with the natural law; and 2) All valid laws derive what force and authority they have from the natural law.  An unjust law is not a law at all Fuller’s view is that “ there is an internal morality to law.”  Morality unique to law & order o Morality of order o Certain moral conditions o Laws are rules written by our legal systems  Systems of rules that pass these minimum rules of morality But this inner morality is at the level of the system, and need not necessarily be true of its particular laws. 36 minutes : This is sometimes called a procedural (legal) naturalism (as opposed to Aquinas’ classical form). The Parable of King Rex, or Eight Ways to Fail to Make Law Opens with a quote: “A law which a man cannot obey, nor act according to it, is void and no law…” -- Judge Vaughan (1677) Restarted recording-  In Fuller’s opinion, Rex fails to make law at all.  What makes a better car, a better car? – fuller o Good order vs. order – any order at all is minimally good o Order has its own morality Fuller: the purpose of law is to "subject human conduct to the governance of rules." For Fuller: To be law ‘in force’ is to have legal authority, and that authority means being worthy of the obligation to follow it….  8 conditions break down what he means by legal authority  Why does law have authority? Fuller, Reading 2, p.94 “To me there is nothing shocking in saying that a dictatorship which clothes itself in the tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself that it ceases to be a legal system.” – on the nazi system  Efficient system of rules, w/out respect, dignity, its not law  Cant demand obedience – unless w. force & fear  Wouldn’t be worthy itself Eight Ways to Fail to Make Law King Rex’s Troubles: – Rex, the newly installed king, is determined to improve the legal system of his country. – He sets about to make reforms in the legal system only to make one blunder after another. – If Fuller is right, Rex fails on eight occasions to make law, and for eight different reasons. - He lacks generalization o Ability to apply a specific situation in a broad sense Fuller contends that the purpose of law is to "subject human conduct to the governance of rules“ “The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller 1964, 106).” Failure #1: No Generality 
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