fuller's natural law theory
TRANSCRIPT
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Copyright 2003 by Donald C. Hubin
Fullers Natural
Law Theory
Don Hubin
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Background
Lon Fuller develops and defends a modern
version of Natural Law Legal Theory.
Like any NLLT, it holds that there is a
conceptual connection between law and
morality.
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Fullers Theory and Classical
Natural Law Legal Theory
Fullers theory differs from Classical NLLT
in at least two ways:It is not committed to Natural Law Ethical
Theory
It applies at the level of the entire system, notof individual laws. (That is, it asserts a holisticconnection, not an atomistic connection,between law and morality.)
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Eight Ways to Fail to Make Law
Rexs Troubles:
Rex, the newly installed king, is determined to
improve the legal system of his country.
He sets about to make reforms in the legal
system only to make one blunder after another.
If Fuller is right, Rex fails on eight occasions tomake law, and for eight different reasons.
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Failure #1: No Generality
Because Rex finds it hard to draft general
rules, he decides to take legal disputes on acase-by-case basis.
There are not general rules at allonly
particular decisions in particular cases.
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Failure #2: Secret Rules
When the case-by-case method failed,
Rex made general rules, but refused topublish them.
Though he tried to apply the rules as he had
written them, only he knew what the ruleswere.
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Failure #3: Retroactivity
When the problems with the secret statute
approach to law were apparent, Rex decidedhe would decide all cases at the end of the
year and publish the rules of law he had
used to decide them.
No rules of law were made before they were
applied.
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Failure #4: Unintelligibility
After complaints about the ex post facto
approach to law, Rex finally published alegal code. It was, though, (like our tax
code) completely unintelligible.
Though citizens had a published code inadvance, they could not understand it.
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Failure #5: Logical Inconsistency
Hurt by objections to his first attempt at
publishing a code in advance, Rex workedto make the code intelligible.Unfortunately, the new code was highlycontradictory
Not a single provision existed that was notcontradicted by another provision.
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Failure #6: Requiring Impossible
Actions
When his subjects rejected his contradictory
code, Rex was, frankly, irritated with them
He published a code that required of his
subjects actions that it was impossible for
them to perform.
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Failure #7: Excessive Change
Rex worked hard to redraft the laweven
enlisting the help of a group of experts. No sooner had the new code gone into
effect than it was completely replaced by
another, and that by another, and another. The law changed day-by-day, minute-by-minute.
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Failure #8: Not Applied as Stated
Finally, Rex decided to solve the problems
with the excessive changes in the code bydeciding cases himself.
Sometimes he would decide them in
accordance with the code, often not. The statutes were no help in determining
how a case would be decided.
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8 Ways to Fail to Make Law
Fuller argues that the parable shows that law must,as a conceptual matter, in general be:
General;
Promulgated (published);
Prospective (non retroactive);
Intelligible;
Logically consistent;
Such as to require only the possible;
Relatively constant over time; and,
Applied as stated.
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Fullers Argument for NLLT
These eight requirements are uncontroversial
requirements on the existence of a legal system.
Complete failure in any of the eight respects entails theabsence of a legal systemnot merely the absence of a
goodlegal system
Each of the eight requirements is, as well, a moral
requirement.
To the degree that any system of social control falls short
with respect to any of these, it is morally deficient.
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Fullers Inner Morality of Law
These requirements constitute a sort ofprocedural moral requirement for legal
systems.Procedural Moral Requirement: They do notplace a content restriction on legal systems.
Legal Systems: They do not place any
restrictions on individual laws. Individual lawsmay have any of these eight features and still bevalid in virtue of their place in an existing legalsystem
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The Positivists Response
Positivists have three plausible responses to
Fullers argument: The Rag Response
The Changing the Definition of NLLT
Response The Nothing Special About Law Response
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The Rag Response
Its Already In There!
Positivists have always said that law is a system of
social control through rules. That means that whatever is necessary for social
control through rules is a requirement on a legalsystem.
Fuller has just drawn out an implication of positivism.
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Changing the Definition of NLLT
The classical debate between positivism and
NLLT has always been whether there aresubstantive limits on what can count as a
law or a legal system.
Fullers Inner Morality of Law argumentdoes not show that there are such limits.
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Nothing Special About Law
Furthermore, NLLT has always argued that
there is a connection between law andmorality that is special to law. That is, itis something about a systems being a legalsystem that establishes the connection.
Fullers Inner Morality of Law theoryholds equally of all systems of socialcontrol through rules.