Fuller’s perception of law as a moral enterprise, demands that a system adhere to the eight desiderata , he calls “the inner morality of law.” Despite being “a procedural version of natural law,” indifferent to laws substantive morality, Fuller argues that for externally moral law to exist, fulfilment of the inner morality, expressed by principles of procedural justice, is required, since the internal and external moralities of law, “reciprocally influence one another.”
In an attempt to prove that the desiderata are intrinsically moral and that ‘wicked laws can destroy a legal system’, Fuller invokes upon the moral values enshrined within law itself.
Declaring law to be a “purposeful enterprise” subjecting humanity to the control of rules, law produces social order which involves respecting human autonomy and commitment to the view of man as a “responsible agent” able to abide by rules; A legislator embracing this view will refrain from insulting human dignity by departing from these principles. Even if we just want law as order, rather than law as good order, there is a ‘morality of order’ which must be met, or else legal order would not be possible.
Portraying law as a reciprocal affair involving a governmental command to the citizens and a governmental commitment to judge citizens according to these rules, loyalty to the precepts ensures that the duties imposed are that to which citizens will be held accountable. Increasing the law’s legitimacy in the population’s eyes, the principles guarantee that the law can be followed, reducing the possibility of sanction for a breach the subject was oblivious to. Providing “dependable guideposts for self-directed action,” and a legal system of fair opportunity, the Ful...
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...ns’ dignity, as evidence of the legal commands entailing a respect for the individual’s capacity for autonomous decision making. Nevertheless, to say that commands constitute a moral respect for its subjects is to suggest that a burglar’s instruction to his victim, to decide whether to obey or be shot, constitutes acknowledgment of his autonomy. “Rules can be general whilst choking the liberty of the people subject to them,” and therefore Fuller’s notion of law as a moral enterprise, pursuing moral ends is questionable.
When faced with Positivist criticism, the supposition that ‘wicked laws can destroy a legal system,’ is difficult to pledge allegiance to. Fuller’s inability to defend his position convincingly, renders it deserving of condemnation as an “untenable doctrine,” incorrect in its claim that systems of ‘moral turpitude’ have no legal system at all.
In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada [Attorney-General] vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position - as articulated by Patrick Devlin - supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism - Mill and von Hayek - would agree that the decisions were just. A conclusion will then follow.
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
The theorists have described some of these general principles and values as the principle of personal autonomy, the principle of welfare, the harm principle and offense principle. The objective of each of these principles is the promotion of ideals which may be considered worthy or good in themselves but when applied in a particular context or even culture may yield different or even unsatisfactory outcomes. With the evolution of modern society and changing societal values, what was once considered a “wrong” may become “a right” and certain criminal acts may now call for “decriminalisation” or legalisation. Decriminalisation implies the removal of criminal sanctions while legalisation suggests making the act legal, therefore not subjected to any sanctions or regulations. The application of t...
In every society around the world, the law is affecting everyone since it shapes the behavior and sense of right and wrong for every citizen in society. Laws are meant to control a society’s behavior by outlining the accepted forms of conduct. The law is designed as a neutral aspect existent to solve society’s problems, a system specially designed to provide people with peace and order. The legal system runs more efficiently when people understand the laws they are intended to follow along with their legal rights and responsibilities.
This essay will be discussing the distinction between the duty to obey the law and morals taking into consideration the trial of socrates within which this essay will be using as a vehicle to analyse the jurisprudential question as to why in a very modern constitutional democracy the citizen has a duty to obey the law.
"The business of the law is to make sense of the confusion of what we call human life-to reduce it to order but at the same time to give it possibility, scope, even dignity."
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil.
In conclusion, it is indeed every one’s responsibility to respect and obey just laws. But whether to disobey unjust laws calls for a prudent consideration about whether it is for any higher purpose.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
In the first place, his argument seems to be that these eight principles are more aspirational in nature because it is often difficult to define at what point there is a violation of one of the principles such that there is a complete failure of legality. Yet, Fuller is clear that the eight principles of legality as they constitute the inner morality of law embrace both a morality of duty and morality of aspiration. They present all aspect of the scale that exist between them too. At the bottom, they are the most obvious and essential moral and legal duties requirements, while at the top, the highest achievements open to human excellence, those qualities and states to which humans aspire toward the legal ideal. Below a certain level of conformity to legality, a normative system is not law at all; above that level, further conformity is regulated by the morality of
“Bad men”, Holmes argued in his speech “care little for ethics or lofty conceptions of natural law. For the bad man, "legal duty" signifies only "a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment.” Therefore, in Holmes' mind it was useful to define the law as a prediction of what will bring punishment from a court. (Holmes, O.