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introduction
the emergence of totalitarian States and dictators stimulate in the 20th
the rethinking of NLT.
IS positive law adequate enough to protect mankind?.
Lon L. Fuller’s ‘procedural naturalism’ theory is the main theory on the
issue.
procedural naturalism’ that sets out the minimum requirements for a
recognizable ‘legal system’.
is concerned with the procedural aspect of law than its substantive
one.
John Finnis’ Natural Law and Natural Rights is another concept of
modern natural law theory
3.1. Procedural Natural Law: Lon L. Fuller
• 3.1.1 The Story
The starting-point was the attitude taken by Gustav Radbruch
(German Professor of law) to the legality of laws passed
during the Nazi era in Germany.
the atrocities of the Nazi regime compelled Gustav Radbruch
who had been positivist, to take the stand --- no law could be
regarded as valid if it contravened with certain basic principles
of morality.
After the war it was this thinking that was followed in the trials
of those responsible for war crimes.
3.1.2 Morality of Aspiration and of Duty
based on the level of the demand imposed: there are two types of
morality.----fuller
The morality of aspiration…is the morality of the Good Life, of
excellence, of the fullest realization of human powers…
it starts at the top of human achievement
the morality of duty is the basic rules without which an ordered society is
impossible, or without which an ordered society directed toward certain
specific goals must fail of its mark.
the morality of duty starts at the bottom.
the appropriate standard of evaluation in the analysis of law, in terms of
its claim to be ‘law’, is one of ‘duty’ rather than ‘aspiration’.
This relates partly to a view of the basic function of law.
law cannot make people ‘good’ but.......
3.1.3 Fuller’s Law Making Criteria
• King Rex’s Law
Professor Fuller ---- a system of government that lacks ‘inner morality of
law’(sine qua non of a legal system) cannot constitute a legal system.
. Fuller in 1963 published book, “Morality of Law” in which he explains
what characteristics a system must show in order to be capable of
constituting a legal system.
3.1.4 The Inner Morality of Law
Corresponding to the eight defects illustrated by Rex’s mistakes Fuller
lists eight qualities of excellence.
The word ‘morality’ refers the inner character of a legal system, the
characteristics without which a system cannot properly be regarded as
a legal system.
In a legal system the laws must be:
1) Generality (not made ad hoc or for temporary purpose only)
2) Published
3) Prospective, not retroactive
4) Intelligible (clear or understandable)
5) Consistent
6) Capable of being complied with
7) Endure without undue changes
8) Applied in the administration of the society
cont....
Fuller--------‘fidelity to law’, reflects the notion that a citizen
can owe a duty to obey only where the features that make up
the inner morality of law are present.
is Fuller is a natural lawyer?
1) since the innner morality charateria is not alla about morality,
Fuller is positivist or atleast stands outside the natural law
camp.
2) since , he judges a law’s validity by reference to an outside
standard, Fuller’s thinking can fairly be regarded as forming a
strand in the natural law tradition.
3.1.5 Criticisms on Fuller
Fuller’s key idea is that evil aims lack ‘logic’ and ‘coherence’
that moral aims have.
Thus paying attention to the ‘coherence’ of the laws ensures
their morality.
Hart’s criticism is that we could, equally, have eight principles
of the ‘inner morality’ of the poisoner’s art .
1. thus,fullers’s inner morality is insufficient to establish the
moral nature of legal system.
2. ‘evil’ legal systems of a highly efficient kind appear to comply
with the ‘inner morality’ of law.
3.2 Substantive Natural Law: John Finnis
the theory of ‘natural rights’ advanced by John Finnis falls
unequivocally into the category of naturalist theory.
He tries to offer a "neo-Aquinian" natural law philosophy which
does not presuppose a divine being.
Finnis skillfully articulates a theory of moral action for our day.
in other words, joh Finnis seeks a theory of how to live well.
3.2.2 Finnis’ Defence of Naturalism
Hart says of Finnis’ restatement of natural law that it is of very great
merit.
Finnis attempts to dispose of what he regards as two cardinal
misconceptions about the theory.
A. Finnis denies that natural law derives from the objectively
determinable patterns of behaviour, but instead asserts it is
ascertainable from inward nowledge of innate motivations.
B. Natural law does not entail the view that law is not law if it
contradicts morality.
In his book, Natural Law and Natural Rights, says that Natural
law is the set of principles of practical reasonableness in ordering human
life and human community, but are pre-moral(not the product of logical
deduction,).
cont..
-----Finnis----
there is no inference from fact to value. Therefore goods are not
moral goods, but they are necessary objects of human striving.
theses goods are subjective so far as they require no justification from
the outside world, but are really objective since all human must assent
to their value.
Finnis argues that these are the result of innate (inborn) knowledge.
the existence of God is only possible explanation for the comparative
order on human values, not the necessary reason.
goods are self-evident. This is demonstrated by, though not inferred
from, the consistency of values that are identified throughout all human
societies.
3.2.3 The Basic Goods of Human Nature
• Based on the consistent behaviour of human kind Finnis isolates seven
"basic goods" in life.
1) Life, meaning not merly existence but also the capacity for
development of potential.
2) Knowledge, not only as a means to an end but as a good in its own.
3) Play, the capacity for recreational experience and enjoyment.
4) Aesthetic experience, a capacity to experience and relate to some
perception of beauty.
5) Sociability or friendship,
6) Practical reasonableness,
7) Religion, the responsibility of human beings to some greater order
than that of their own individuality..
2.3.4 Evaluation
• These goods are not goods because of anything, they
are just good.????????
• Micheal Doherty-----