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Jurisprudence Fuller The Morality Of Law Revision Notes

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FULLER THE STORY OF REX Rex's efforts go awfully wrong. Why does Fuller tell us this story?
Well, Juri is attempt to make coherent sense of our settled understandings concerning law. We accept that "justice according to law" may not be the same as justice in the abstract, so when court does "justice according to law" it administers the conception of justice that is embodied in the law, and this may differ from what I consider to be the morally most sound understanding. But what if enactments are grossly unjust, like Nazi, should connection between law and justice give us reason to think such enactments are not law at all? Such questions make awre that we cannot easily combine our various settled understandings into an intelligible account of law's nature (e.g. Getting to Rawl's reflective equilibrium would be very tough!!) Now, there is the problem of rarely isolating our taken-for-granted assumptions and scrutinizing them, and ultimate theoretical positions can vary greatly. And nature of law has been hotly contested for centuries and many theorists simply talk past each other because they have different starting points. . But in the melee of assertion and counter-assertion, can we find some widely endorsed and fruitful understandings of nature of law from which our argument can advance?
Fuller says yes! The Story of Rex is a response to this problem. Where the 8 precepts are laking, it would not be regarded as a legal system. The fairy tale example is intended to establish some firm understandings concerning law: (i) must be rules that are Austin treated this a bit but he failed to distinguish what is essential for efficacy ofsystem of legal rule and what shall we call "a law"?

(ii) published "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. Response by Fuller: o Even 1 in 100 is valuable, and he cannot be identified in advance. o People usually follow others who know law better, must be promulgated. o Must promulgate to allow for criticism o Most laws are specific, and promulgation doesn't rest on idea that all laws known to all people, but situation-specific.

(iii) prospective

In USA, this problem dealt with in Constitution: Art 1 para 3 As with the other 7 desiderata that make up internal morality, difficulties that sometimes retrospective laws are necessary to give effect to other desiderata, nuances should not blind us that it is not hard to recognize blatant indecencies:
◦ E.g Statute that said "anyone who has been convicted of crime of violence may not receive any firearms" ever. This over-clever attempt was stricken down by the supreme court in Tot v United States.

(iv) intelligible

Note: Although we have focus on legislative clarity, it does not mean we can't have things like reasonable, or good faith. Sometimes we even need that! Appreciate that a "specious clarity can be more damaging that an honest open-ended vagueness" [64]
o Hayek criticizes that all these terms of 'reasonable' or 'fair' have served to whittle down the rule of law progressively into vague formulas and increasing arbitrariness. Don't think that everything can be safely delegated do Administrative Executives either!

(v) not contradictory (vi) possible to comply with

Note this is different to the good teacher demanding more from students than he thinks capable can be used in a positive way to encourage - government cannot do and perform that same function.

(vii) reasonably stable through time, and (viii) followed by officials (perhaps should have expressly said that use of force only ok if rule as described above violated)

Fuller calls it "the most complex of all desiderata". Must also appreciate some clouds of confusions: interpretation is not about what parliamentary intention is, because that is usually clear, but when judges declare what the intention is, they are in truth themselves legislation to fill up casus ommissi, the left gaps.
◦ Analogy: Son must finish project started by father who was working on an invention but father dies and leaves only sketch and then son must start thinking about how to remedy the situation. Questions son must ask himself are similar to that what must ask when interp. Statues.
▪ What about impasse of "legislative intention" who's intention. Back to analogy. What the son does is look at the intention of the DESIGN, not only put himself in the shoes of his father. So we must speak of "the intention of the statute".

Some notes about the 8 Principles:

1.Infringements of legal morality tend to become cumulative e.g., neglect of clarity, consistency, or publicity may beget the necessity for retroactive laws

2. Stringency as well as priority of ranking will be affected by the branch of law in question, as well as by kinds of legal rules that are under consideration.

3. Paradox, what seems so simple to do correctly is so difficult in practice
◦ E.g Aristotle gives example of dealing justly with people, the rules are easy, but application of simple rule not simple So we may say, echoing Aristotle, that easy to see laws should accord with 8 desiderata, but knowing how under what circumstances, and in what balance these things should be achieved is no less an undertaking than being a lawgiver. Fullers Aim: Can we derive any interesting from this though? Well, Fuller aims to demonstrate that there is a conceptually necessary connection between law and morality, thereby refuting the LP.

Other's have tried, arguing that we could not speak of law conferring rights without morality, or that we could not speak of judges doing justice without morality, but LP can easily refute/reply to these.

Fuller's 8 precepts not so easy to reject. So LP don't reject Fuller's precepts, but simply don't think that this establishes a necessary connection between law and morals.

It is of note that Rex only understood what he had to do after he failed, this reflects a feature of our moral and political experience: we deepen our understanding of the nature of a value or goal by the experience of pursuing it. (Fuller makes this point in another book). And that is why within the "The Morality of Law" we are introduced to swaths of human experience drawn from history of attempts to establish and sustain legal order. (many writers don't really do this). Analogy to debate concerning morality. Kant tells us that even if you are inexperienced will still know what your moral duty is. But Fuller, closer to Aristotle, tells us that although may first seem simple, experience will show us that application of such rules to circumstances is not so simple: thus, 8 desiderate should not be viewed as discrete. Fuller says "means toward a single end" but Simmonds thinks that what he really meant was "various aspects of a single aspiration", and they can never all 8 be realized to perfection (Simmonds supplies analogy of the mathematical archetypical triangle that can, in fact, never be perfectly realized).

FACTS, VALUES AND PURPOSES

Chairs, spoons and Legal Systems. Think about how describe chair to alien, simply saying flat surface with 4 legs doesn't say much, need to know what it is for, need to know what sitting itself is. Many philosophers think we have to keep facts of legal system different from its values. But when we talk of spoon we don't have have two sets of criteria, we don't say it is a good or a bad spoon, it's either a spoon or it isn't, if it's too bad of a spoon, at one point it simply stops being a spoon. One could think that LP want to describe chair just in formal way, but not true, Hart doesn'T ignore purpose of institutions he is describing. He simply does not see it as central to the tasks of jurisprudence to identify the purpose of law, because he thinks law can have many diverse purposes, some good, some bad. OK, but even if we can summarize Hart's position as being that purpose of legal system is provision of publicly ascertainable standards for human conduct....it begs the question, why do we need such guides? Why not do as I please?
Natural lawyers would say, law purpose is common good or other values. Hart simply says it flows from being human, "human necessities". Effectively, for Hart, it is not that the institutions lack a point or purpose, just that there can be a myriad of them!
As far as the many question about justice or injustice of law is concerned, Fuller does not wish to dispute Hart's view. However, he claims that there are also internal values of the concept of law. Now, he says that in relation to these internal values, we apply the same criteria in determining whether or not something counts as a legal system that we apply in determining whether it is a good or bad legal system, and when deterring whether it is a good or bad legal system.

CONCEPTUAL STRUCTURE

Ok, we have to understand that concepts can exhibit different structures. Some are defined by a finite set of characteristics (like Bachelor). To understand Fuller we must grasp the possibility that a concept might be structured by an "archetype" (Fuller doesn't himself invoke the notion explicity). (e.g a triangle, but all triangles we know are degrees of approximations). Archetype for Fuller =
Full compliance with 8 desiderata. Of course, at some point, if compliance with 8 desiderata falls ridiculously short, then would be instances of law at all.

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