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Lon Fuller, THE MORALITY OF LAW (rev. ed.) pp 3-13, 33-94, 133-51, 187-224
p. 3-13 1: THE TWO MORALITIES
Content of chapters - because unhappy with existing literature about relation between law and morality. Two major deficiencies: o 1. Failure to clarify the meaning of morality itself. It is assumed we all know what morality means! But that is not the case.
In chapter 1, I try to redress this by highlight distinction between morality of duty + morality of aspiration. o 2. Neglect for Morality that makes law possible. Focus on "legal justice", treat like alike, but little recognition that problem thus adumbrated is only one aspect of much larger problem - clarifying directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be evil. Chp. 3 attempt to bring the analysis of the first two chapters into relation with various schools of legal philosophy. Chp4 seeks to show how proper respect for internal morality of law limits kinds of substantive aims that may be achieved through legal rules - closes by showing how something like a substantive "natural law" may be derived from the morality of aspiration.
The Moralities of Duty and Aspiration
Distinction between morality of aspiration and morality of duty o Morality of aspiration most plainly exemplified in Greek philosophy: it is the morality of the Good life, or excellence, of fullest realisation of human powers. o May be overtones of duty to get there, and if fail to realize fullest capacities, he would be found wanting, not for being recreant to duty, but for shortcoming, not wrongdoing. o Rather than right or wrong, we have beseeming conduct. Morality of aspiration starts at TOP of human achievement, morality of duty starts at BOTTOM (ie, lays down basic rules necessary for society) o MOD = Old Testament morality "thou shall", "thou shall not". Condemns men for failing to respect basic requirements of social living. Metaphor to help distinguish MOD and MOA: o MOD = rules of grammar
o MOA = rules of what is sublime and elegant composition of writing. (these are more vague that basic rules of grammar) How would moralities view gambling?
hypothetical moral legislator would have to decide if gambling harmful so as to refrain from engaging in it.
Would realise that marginal utility not good with gambling.
Weighing all this: MOD might conclude that men ought not to gamble for high stakes, that they have a duty to sun "deep play".
MOD as lawmaker: will have to face new questions, eg, what about games that partly rely on skill etc, yes, but at no point would there be any sharp break with methods followed in deciding whether to condemn gambling as immoral. o MOA
Q: Is it activity worth of man's capacities? Answer: No, it's a kind of fetish, enjoying cultivation of risk for its own sake, not in the pursuit of, eg, some higher artistic aim. So, gambling unfit for humans.
MOA as law maker?: No direct bearing at all. Law cannot compel man to live up to excellences of which he is capable.
For workable standards MOD
But MOA has pervasiveness of its implications: rules of contract and tort, some key principles were not present in early stages of law but now are and represents the fruit of centuries old struggle to reduce the role of the irrational in human affairs.
Still, no may to compel reason, only seek to exclude from his life grosser and more obvious manifestations of chance and irrationality.
The Moral Scale
As considering whole range of moral issues, we may conveniently imagine a kind of scale or yardstick which begins at bottom with most obvious demands of social living and extends to highest reaches of human aspiration. o "Somewhere along that line there is an invisible pointer where the pressure of duty leaves off and the challenge of excellence begins."
o War of moral argument is over location of this pointer.
o To find it, must know what is perfect life - if you accept this, then drawing line is pointless because MOD must borrow standards from MOA.
This view has led to diametrically opposed conclusions concerning the objectivity of moral judgments.
One side: Fact of experience that we know and agree on what is bad, thus must follow that we have shared picture of what is perfectly good (Platonic Socrates)
Other side: Men do not agree on what is perfectly good, our apparent agreement of what is bad is perhaps an illusion, born of social conditioning, habituation, and shared prejudice.
Both rest on idea: must know good to know bad
In whole field of human purpose, we find rejections of idea that we must know perfectly good to identify the bad o E.g No human tool is perfectly suited to any task, but designed to accomplish indefinite range reasonably well. o Fuller: So is it also with social institutions, we can know what is unjust without committing ourselves to declare with finality what prefect justice would be like. BUT, this is not o say that drawing line between MOD and MOA is easy. Some say MOD relates to life in society, while MOA relates to man's life with himself, or between him and God. o Fuller: true only in sense that as we move up the ladder differences in capacity and understanding become increasingly important, but not to say that social bond is ever broken in that ascent.
(where would we be if we were cut off from social inheritance of language, art, thought, etc..)
2. THE MORALITY THAT MAKES LAW POSSIBLE This is the story of the unhappy reign of a monarch of Rex Eight Ways to Fail to Make Law
Rex was resolved to remedy a bad situation: but, alas, he fails. First act was dramatic: announced repeal of all existing law (to get clean slate) But making new laws was tough, and strained him to the breaking point. So gave up on making code, and said, he would be judge over any disputes that may arise, in hope that case by case he would work
out a system of rules that could be made into a code. Unfortunately, after 100s of decisions, could not detect any pattern. Any attempt led to even more confusion and threw his meagre powers of judgment off balance. Following that Fiasco, Rex took fresh start, and took lessons in generalisation and tried to make code again. Not 100% confident, said that there is code but would still sit as judge, but code was state secret, only known to him. Subjects did not like this. Then decide that at start of each year, he would decide all controversies that had arisen among subjects during preceding year. He would accompany decisions with full statement of reasons. Subjects said, we want to know rules in advance so they could act on them. Rex now knew, no escape from published code declaring rules to be applied in future disputes. Subjects happy, but then dismayed when saw that code was obscure. Code was withdrawn, Rex put staff of experts on the Task. They clarified things, but only brought to light that it was honeycombed with contradictions Again code withdrawn from revision, Rex now losing patience with subjects and their negative attitude. So purged code of contradictions, and stiffened rules: ten years prison for coughing in presence of king. And many other ridiculous laws Near revolution ensued. "To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos". Code withdrawn, again revision, so that any impossibility reversed to make possible. To accomplish this, every part of code had to be substantially rewritten. But final result was clear and consistent in itself. But because so much had been changing, as soon as new code appeared, and became legally effective, subjected to string of amendments. Popular discontent mounted, "A law that changes every day is worse than no law at all." But pace of amendment began to reduce. But rex felt much bad things happened because of bad advice from experts. - so reassume judicial power in his own person. This time he was deft, apt, and confident to distinguish own decisions on principled basis. But soon, when reread judgments, saw no correlation between judgments and the code they purported to apply. Leading citizens began to hold private meetings to discuss what measures short of revolt can be taken, and then Rex suddenly died. Rex II decided to take powers of government away from lawyers and place them in hands of psychiatrists and experts in public relations so that people would be happy.
The Consequences of Failure
Rex's career illustrates attempt to create system of legal rules may miscarry in 8 ways o 1. Failure to achieve any rules at all o 2. Failure to publicize rules expected to observe. o 3. abuse of retroactive legislation: doesn't allow guide and also undercuts prospective rules since it threatens to change them o 4. Failure to make rules understandable o 5. Enactment of contradictory rules o 6. Rules that require conduct beyond the powers of the affected party o 7. Introducing too many and frequent changes in rules that subject cannot orient his action by them o 8. Failure of congruence between rules as announced and their actual administration. If fail in one of these eight: no legal system at all. Government makes kind of covenant, "if you follow rules, you have assurance that they are rules that will be applied to your conduct. Citizens predicament, when things like Nazi Germany happen and there is drastic and general deterioration in legality. In these situations, no simple principle by which to test the citizen's obligation of fidelity to law, any more than there can be such a principle for testing his right to engage in a general revolution. THUS, respect for constituted authority must be kept separate from fidelity to law (Rex's subjects remained faithful to him as king but not faithful to his law, for he never made any).
Aspiration toward Perfection in legality
Corresponding 8 routes to legal excellence. Fulfilment of all 8 is utopia. But this Utopia not actually a useful target for guiding impulse toward legality, goal of perfection is more complex. But suggest 8 standards by which excellence in legality may be tested. Now clear, that inner morality of law presents all aspects of that scale which starts with MOD and ascends to MOA. Applying analysis of first chapter to this subject, must consider distinctive qualities of inner morality of law. o Basic morality of social life, duties towards others, usually only require negative "do not kill" type commands. o But inner morality requires more, also needs 'make law known' 'make it coherent' etc. To meet this, energies must be directed towards specific kinds of achievements not merely warned away from harmful acts.
o Because of affirmative quality of its demands, IM lends badly to realization through duties, whether moral or legal, why?
Because now matter how desirable direction of human effort may be or appear, if we assert there is a duty to pursue it, we shall confront the responsibility of defining at what point that duty has been violated. Thus, duty on legislator to make laws clear is an exhortation unless we define degree of clarity he must attain to discharge duty. Adds to up saying: Morality of law condemned to remain largely a morality of aspiration and not duty. Its primary appeal must be to a sense of trusteeship and to pride of the craftsman. o Importance exception: relates to desideratum of making laws known. This demand lends itself to formalisation. o You would think that non-retroactivity also easily formalised, but this seeming obvious demand turns out to be one of most difficult problems of whole internal morality of law. Legality and Economic Calculation
Remember, on level of duty, marginal utility calculation out of place, but in MOA not only in place, but becomes integral part of moral decision - increasingly as we reach towards highest levels of achievement. Need economic calculation when inner and external moralities conflict, eg, inner morality wants stability, external wants and needs change - condemned to steer through middle. Much less obvious that within internal morality of law itself antinomies may arise, so also desirable that laws should remain stable but also not pose insurmountable barriers to obedience. Former Minister of Justice Poland 1961 said that they discovered that making laws readily understandable (in early days of communist regime) carried hidden cost in that it rendered their application by the courts more capricious and less predictable.
Enough said to show that utopia of legality cannot be viewed as a situation in which each desideratum of the law's special morality is realized to perfection. o "In every human pursuit we shall encounter problem of balance as we tread road that leads from abyss of total failure to the heights of human excellence." Now, pass review of 8 demands of the law's inner morality.
I. The Generality of Law
First desideratum of system for subjecting human conduct to governance of rules is obvious: there must be rules. This is the "requirement of generality."
In recent history most notable failure to achieve general rules has been that of our regulatory agencies, esp those charged with allocative functions. o They have failed to create any rules at all!
Appreciate that this principle is different from demand of laws internal morality which just requires there must be rules, however fair or unfair they may be. In actual systems, total failure to achieve anything like general rule is rare: generalisation is implicit even in a single command/wish. Eg tell dog to shake hands... Still, many systems suffer from lack of general principle Austin treaties this a bit, but his attempt to distinguish between general and particular commands was so arbitrary that it didn't help. He failed to distinguish what is essential for efficacy of system of legal rule and what shall we call "a law"?
Ancient problem, back to secession of plebs in Rome. Though urgent, still subject to marginal utility principle because foolish to try to educate EVERY citizen on EVERy law that applies to him. Need for this education will depend how far requirements of law depart from shared views or right and wrong. Complication: what counts as law for purposes of this requirement?
E.g internal procedures of decision making bodies? (Note the bizarre situation in Switzerland that certain courts must hold their deliberations in public.) "Why all this fuss about publishing laws, we have thousands, and only a couple are ver known. Even if put laws in street corner, not 1 in 100 would read" - Thomas Arnold o Response: Even 1 in 100 is valuable, and he cannot be identified in advance. o Also, people usually follow others who know law better, must be promulgated. o Also, must promulgate to allow for criticism o Also, most laws are specific, and promulgation doesn't rest on idea that all laws known to all people, but situation-specific.
III. Retroactive Laws
In US, this problem dealt with in Constitution: Art 1 para 3 Taken alone, retro rules are a monstrosity. To appraise them intelligently, we must place them in the context of a system of rules that are generally prospective. Curiously, then, situations ay arise where retro rules essential to advance cause fo legality.
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