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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 desideratafor reflecting the inner morality of law●Hart-Fuller Debate●The Case of Speluncean explorersInner 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 hocbasis●Law should be capable of general application to every case●Generality and equality are differentE.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 ●