PHLB11H3 Lecture Notes - Lecture 3: Lon L. Fuller, Divine Law, Socalled

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Published on 21 Apr 2013
School
UTSC
Department
Philosophy
Course
PHLB11H3
Professor
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.
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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
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"[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
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Document Summary

Lon luvois fuller was professor of law at harvard university. This week"s readings are two texts by lon fuller: an excerpt from the morality of law (1969, an excerpt from positivism and fidelity to law a reply to prof. hart (1958) An account (like hart"s) will either be: incomplete, i. e. missing something essential in its account of law, or, concealing a hitherto unknown morality, but under another name or unobserved. 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: to be moral to act in conformity with our nature, or with nature itself. To be a good person, we must act within our nature.

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