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Lecture 8

Lecture 8- Fuller & Hart.docx

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York University
HUMA 1825
Shirley Katz

Lecture- Nov 14, 2011 (Fuller) There is a connection, nexus, between the following concepts: 1. The concept of the rule of law 2. Rule of reason 3. The law as serving the common good “The rule of law is seen as the rule of reasons and law is connected to serve the purpose for the common good”! Aristotle  Aristotle emphasized the important role of reason and rationality in cultivating virtues, especially the highest virtue justice. We aspire to achieve these have virtues. This is a notion of virtues as aspirational.  Hence we do not permit a human being to rule as a lawgiver because a human being is not just reason but irrationality with passion, desire and appetite. Humans should not rule but rather “reason”. The rule of man: We have irrationality, arbitrariness and wilt power Thomas Aquinas  The rule and measure of human acts is the reason  Law: Is an ordinance of the reason for the common good made by him who has care of the community and promulgated (pg.55)  Human law is a purposive activity; same concept in fuller  Do good and avoid evil  View of human nature: Focus on the human beings potential as goodness and greatness an striving for perfectibility Legal Positivism  The way of understanding the law with the separation thesis and analytical approach of jurisprudence  Law could have any content or purpose what so ever and could still exist as valid authoritative law not with standing its content or purpose if and only if it came into existence with the criteria of the regime in question  Law must have a content that will improve the economical, historical status and believed that their legal theory could most effectively bring about those changes  The idea of rule of law as rule of reason and common good does not disappear with the legal positivist Jeremy Bentham  Thought there were moral advantages in using the separation thesis; he said separating will allow us to see what changes could be made in law and see what is wrong; we would no longer be in danger of just going along with what ever content law had simply because it was law  Obey promptly and censure freely; we have the responsibility to speak out when it was time to criticize a given law; the separation thesis will make for a better society, better citizens, alive alert responsible and accountable citizens Hart  Is this a valid law, ought I to obey it?  Hart emphasized that the legal positivists were not indifferent form the moral status of law  They recognized that the rules of law even embedded moral principles  Made a distinction between being obligated to do something and to oblige to do something  Hart says two further things; hart says there a re two requirement for a legal system to exist and these are primary and secondary rules  Primary: Citizens must obey the law  Secondary: Why do we obey the law?  Secondary rule of obligation: All the officials of the legal system must have a normative and critical point of view  Hart emphasizes that it is not enough for ordinary citizens to just obey without understanding and internalizing the rules; if they don’t they will end up like sheep who end up at the slaughter house Nazi Laws  For most of the time that legal positivism was the dominant, predominant legal theory legal positivism went along with the most enlightened liberal attitudes and it came to be associated with the most sinister regime  Legal positivism was blamed for the worst excesses of the Nazi regime  By separating laws and morals we facilitated immoral law; in the minds of the compliant ordinary citizen “might was right” the fact that it was a law made it right.  Radbruck was a leading legal positivist he converted to natural law theory; he said that the experience of Nazi law should make each and every one of us natural law theorists, lawyers The Grudge Informer  How you might handle such a case?  A women who informed on her husband and enounced him and wholly responsible for his arrest Fuller’s take: Deputy 1: Let her go; she obeyed the law at the time Deputy 2: Let her go, there was no lawful regime of the time and so her act cannot be considered lawful or unlawful Deputy 3: The courts should not do anything; the courts should not get involved in judging the grudge informer; let the legislature pass a statue and criminalize her act retroactively Deputy 4: Do nothing, let the public take law into its own hands and take care of her Fuller says as minister of justice which of these recommendations would you adopt?  Someone who does something wrong by moral standards but not by legal standards Fuller  Law: It’s the enterprise of subjecting human conduct to the governments of rules  Law is informed by an “inner morality of law”; this process of subjecting human conduct is informed from an inner morality of law and this inner morality comes from procedural tenants (elements) lively associated with the rule of law (aspirational)  These procedural elements constitute the eight principles of legal morality and provide the necessary connect between law and morality  The inner
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