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HUMA 1825 Note 7.docx

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HUMA 1825
Neil Braganza

HUMA 1825 Note 7 Whiteley v. Chappelle - It illustrates various theories of adjudication. - In 1868. It is illustrative of the positive law; the law as it is instead of meshing of the law, as it ought to be. - The appellate asks the court to re-write the law, and enforce the law and it is, not as it ought to be. - The court enforces the law literally (as it is written) - Often cited as a good example as the literal meaning defeating the intent of parliament. - The appellant likely knew that it was wrong and illegal to vote under someone else’s name (fraudulent) - This case clearly separates law and morality. o What is morally wrong to us, isn’t necessarily legally wrong - The problem is the statute: law by parliament o As it is worded: here the craftsmanship is important because the law as written doesn’t fit the facts - Facts: o Whiteley impersonated someone at an election, Marston, he was qualified to be elector but he was dead before the election. - Law: o 14-15 Victoria 103.  Any person shall willingly impersonate a person entitled to vote.  Is a dead person entitled to vote? - There is now a penumbra of the statute because there isn’t a clear way - Appellant’s lawyers: the words “entitled to vote” should be interpreted literally. Impersonation of dead person is not a crime as law is written, because dead people aren’t entitled to vote. - The other reason is to look at the purpose of the law/statute o Law is a purposive activity: What is the reason for this law? o 16 century: Haven’s case: the court said that in interpreting a statute. The judges should ask themselves what the wrongdoing or mischief the judges should’ve tried to prevent. - Where a criminal statute is concerned, they have to construe, interpret that statue literally and not liberally. (If a person’s life is threatened) - The statute was changed not by judges, but by parliament. - Canadian code has “living or dead” - This case teaches us the importance of words and craftsmanship of law, the importance of drafting, not hazard or loose; it is a real art to draw statutes. - This is an issue of adjudication. Rule of Law as the rule of Reason and for the Common Good - Introduction to Fuller’s natural law theory: o Aristotle, and Aquinas showed this idea o The rule of law is the rule of reason, if we don’t have the rule of law as the rule of reason, what we have is what we see in Kafka: not the rule of reason, but the rule of men in all their irrationality: law is irrational. o Aristotle: justice – reason controls the other aspects that characterize the human being: such as irrational; desires, appetites, and passions are irrational.  Hence, we do not permit a human being to rule, since it consists of both rational and irrational, but rather, reason.  The rule of law is not just the rule of reason; it’s the rule of law of the common good. Pg.21 Ch.2 o Aquinas: pg47: the rule of reason in human acts is the first reason of the human acts, he concludes that it follows that law is something pertaining to reason, from this he gives us the full definition of law  Law is an ordinance of reason for the common good, made by him who has care of the community and promulgated.  Human law actualizes the general precepts of natural aw  Chief precept: do good, avoid evil o Fuller gives us the same purposive understanding of human law: the purpose is to have an integral morality  The inner (internal) morality of law.  This necessary relationship doesn’t have theological overtones it is strictly procedural. It joins up with Aristotle and Aquinas. The 20 century version without theological overtones. o Under these, there is a vision; an understanding of what human beings is like.  Law pertaining to reason and for the common good, is based on the human being’s view of potential for goodness, virtue and perfectibility.  This view is an important aspect of natural law theory. Fuller’s main ideas on morality and Law (inner morality of law) - Important figure in law and legal theory. - Overview: Law; the process of subjecting human conduct to the governance of rules is informed through the inner morality of law. It emanates from procedural aspects that are widely associated with the rule of law. These procedural tenants constituted his 8 requirements of legal morality. o They furnish the necessary conceptual connection of law and morality o The fundamental position of natura law theory. - Fuller then believes, that inner morality of law guarantees us a morality of law that is worthy to follow, this explains an obligation of obeying law because in it, there is a guarantee that we will follow it - A sustained purposive effort: o He thinks that the general purpose of law is to provide a framework (facility) people can regulate their own behaviour, and can achieve their own goals and objectives for themselves. o Law: an interactive and mutually respective enterprise between the civilian and the lawmaker. This enables people to live a satisfactory life with other people o To live the good life requires something more than good intentions, even if they are generally shared. It requires the support of firm base lines, something that in a modern society only a sound legal system can supply. o Law is the collaborative enterprise between the citizen and the lawmaker for the good of the individual and the collective  Citizens are responsible, moral agents.  Arbitrary power doesn’t address the human being as a responsible, moral agent. Doesn’t respect them. Read Kafka. - Fuller’s 8 principles: o They aren’t higher laws; they’re lower laws. They are the natural laws of carpentry: they respected by a carpenter who wants the house he builds to remain standing, and serve the purpose of those who live in it.  In this framework people can realize their own perfections o They are all procedural in nature 1. Rules that govern us must be expressed in general terms: the generality of rules. 2. These general rules must be expressed in clear, understandable language. 3. The rules must be publicized, and have formalized mode of publication, because we have to have notice of them 4. They must be perspective: forward looking in nature, and not retrospective: if that, how can they be a guide to action 5. Rules must be internally consistent: with each other, there should be no contradictions. Therefore, they couldn’t furnish a guide for actions 6. Rules must not demand the impossible of us; conduct beyond our ability to do what they require of us. 7. Rules must have some constancy to them: they can’t be changed so frequently so that people can’t rely on them for their actions. Must be
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