Week 5 Natural Law_ Lon L. Fuller.docx - Lon L...

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Lon L Fuller (1902-1978) Raised a new type of natural law named ‘procedural naturalism’ (Inner morality of law) It sets out the minimal requirement of a recognizable legal system His propositions are not focusing on the substantive content of legal provisions but the procedural structure of a legal system . Establish eight desiderata for reflecting the inner morality of law Hart-Fuller Debate The Case of Speluncean explorers Inner morality of law A new type of natural law named ‘procedural naturalism’ They are not merely procedural, they do have moral aspect. There is not a sharp conceptual separation between law and morality. What is law? Law is “ the [purposive] enterprise of subjecting human conduct to the governance of rules. Whatever its substantive purpose, a legal system is bound to comply with certain procedural standards (a functional test). In the absence of this compliance, what passes for a legal system is merely the exercise of state coercion . Not focusing on the substantive content of legal provisions but the procedural structure of a legal system The standard is within the context of ‘morality of duty’ Fuller commences this analysis by considering the reign of a hypothetical case of “King Rex” Rex is a hereditary monarch succeeding to a well-established dynasty with, unfortunately, a lamentable record in matters legal. The attempts of the well- intentioned but incompetent Rex to improve matters are then used as a hypothetical model of the ways in which the enterprise of law-making might be rendered ineffectual or, indeed, vitiated altogether → Fuller set out the more or less fatal defects as ‘eight ways to fail to make law’ i.e. Eight desiderata : Law would lose legality if they are not satisfied (i) Law should be general and should not contain any uncertainty (Generality)
Every issue must not be decided on an ad hoc basis Law should be capable of general application to every case Generality and equality are different E.g. Differential taxation (Where we have different tax brackets, people falling into different brackets according to their economic status); Male-only military conscription (distinguishing people based on different classes) → permissible under generality (ii) Law should be publicly promulgated (Promulgation) To publicize, or at least to make available to the affected party, the rules he is expected to observe Importance: Notice function (people can adjust and adapt to suit these norms enshrined in statute) (iii) Law should not be retroactive (Non-retroactivity) Importance: Punishments without prior notice are not moral Fuller’s examples of retroactive law: A retroactive decree was enacted converting these murders into lawful ‘executions’, informed by Hitler’s claim that he himself was the ‘supreme court’ of the German Volk (The Morality of Law, pp. 54-55) (iv) Law should be clear (Clarity) Law should be framed in ways that are comprehensible and easily understandable to the public No complex technical jargon

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