1.
Introduction & Rule of Law: Duncan Kennedy and Fuller
Legal Education: Kennedy (one of the founders of the Critical Legal Studies movement) says that
law schools are political places and says that it indoctrinates the idea that it is natural, efficient,
and fair for the legal industry and society to be organised in a hierarchical way.
Two Lines of Thought: (1) Believes in the role of service through law, carried out with excellent
technical competence (lawyers as technicians) and a deep belief that law is a progressive force.
(2) Contrast to the first line, more radical notion that law is a tool of established interests, that is a
superstructure social institution enacted upon the economic base of the state and a tool to turn
the tables
Hot and Cold case: Actual intellectual content of the law consists of learning rules, knowing what
they are and why they have to be the way they are, and rooting for the judge who seems willing to
make the law rules marginally more humane. The hot case (commonly perceived as unjust due to a
seemingly meaningless verdict but can have ‘good reasons’ from a macro-view) and a cold case
(boring case with no political, moral or emotional significance, insinuated to cause intellectual
confusion)
Problems of a legal education: Law schools teach legal skills in a mystifying way. (1) “Legal
reasoning” which is unintelligible to the layman but somehow explains and validates most legal
rules. Legal issues are distinct with no general principle drawn between them. (2) Allegedly poor
quality of teaching mean real and imagined differences in student capabilities are accentuated,
students unable to improve nor understand their own learning processes. (3) Schools teach skills
in isolation from actual lawyering experience. Restricts student’s future role to one that is
controlled by senior lawyers, controlling the content and pace of depoliticized craft training in a
setting of intense competition and no feedback
Treatment of cases in three ways: (1) Cases that present and justify basic rules and ideas, treated
as cursory exercises in legal logic (2) Cases that are anomalous (outdated or wrongly decided) as
they depart from the supposed inner logic, teachers persuade students that the technique of legal
reasoning is minimally independent of the results reached by judges and is therefore capable of
criticising as well as legitimating. (3) “Cutting edge” cases which raise policy issues about growth
or change in the law
Legal reasoning should not be distinct from ethics and political discourse: Students lack
knowledge to independently develop a theoretically critical attitude towards the system. Most
liberal students believe that the Left program prioritises human rights over property rights.
Problem with the legal system is twofold: it either doesn’t adequately support the rights of the
oppressed or it fails to effectively enforce the rights that are formally recognised in law. Those
who adopt this perspective rely on the very techniques of legal reasoning that are typically used
to defend the status quo. When you approach law with the belief that it should protect the rights of
the oppressed and prioritize human rights, you can still be constrained by the same legal
reasoning techniques that is used to maintain the current legal system and associated power
structures. Legal reasoning should not be isolated from ethical and political considerations.
Problem with rights discourse: internally inconsistent or circular. Legal thought can justify almost
any result. Rights discourse imposes constraints and cannot function effectively as a tool of
radical transformation. Rights are ‘formal’ (secure to individuals legal protection for arbitrariness).
Rights discourse presupposes that the world is and should be divided between a state sector that
enforces rights and a private world of ‘civil society’ where individuals pursue their diverse goals.
Rights discourse is logically incoherent and manipulable, traditionally individualist, and wilfully
blind to substantive inequality and is a trap. As long as one stays within it, once can produce good
arguments in ‘cutting-edge’ cases where everyone recognises value judgements have to be made.
But one has no guidance in deciding what to do about fundamental questions.
1
“Rights discourse”: Reinforcing the tool master’s world. What vision of rights is being relied on
when fighting for more rights, if you use the system’s vision of rights, then you are further
entrenching these rights. Eg. you have 12 days of leave, and you argue for 24 days. You are still
bound by the system because you think you are breaking the system but you are actually
hardening the system
Kennedy’s ‘Program’: To smash the current hierarchy, to smash the dominant context. To
constantly question and fight against the dominant structure and be sensitive as to why
something is becoming dominant. Important to have a vision of what is to follow after breaking
down the structure.
Rule of law: What is NOT law – Disorder, rights decided arbitrarily, laws that cannot be obeyed. In
a system that is not law, one obeys out of fear of consequences (power to impose punishment) but
not social contract (in a state of nature there is no contract) – Result: Rule by power. Conversely,
law is consistent, certain, reasoned.
Law is a purposive enterprise of subjecting human conduct to the governance of rules – law has
certain moral qualities.
Fuller’s internal morality: Governs form of laws – enactment, interaction and interpretation.
External Morality: law’s substantive content, must meet community’s minimum standard to
maintain legislative standards. (eg. fairness). External morality is just whatever is not internal.
The 8 Requirements: Only TOTAL FAILURE of any of the 8 requirements of ‘internal morality’ of the
law results in the failure of the legal system
(1) Rules must be general: Should not apply on an ad-hoc basis, ensures that people in similar
situations are treated alike and not at the whim or absolute discretion of the rulers
(2) Rules must be published: Citizens need to know what laws govern them. Subject to the
marginal utility principle, to determine how much the law departs from the generally shared
views of right and wrong. If there is a high degree of coincidence between moral norms and
the law, difficult to access law is not wholly inaccessible. Not everyone reads the statutes
but the pattern of behaviour adopted by some who are aware of the law would create
awareness of the legal norm. Adequate publication subjects laws to adequate criticism and
serves as a check and balance against enforcers.
(3) No abuse of retroactive law: If a law is formulated only after an act is done and seeks to
penalise someone for the act that was not illegal at the time it was done, contravenes
understanding of fairness. It is about regulating conduct, if laws punish retroactively, what is
the point of behaving properly prospectively.
(4) Laws must be clear: Subjects must know what conduct is required and what is expected of
them. Eg. Good faith is seemingly unclear, but they incorporate common sense judgement
that is the best way to achieve clarity. Since these are hard to clarify, no point forcing
superficial clarity. Fuller suggests a wait and see approach to derive a certain standard of
fairness.
(5) No enactment of contradictory laws: Otherwise attempt to comply with one rule might lead to
violation of another rule. Practical application is tricky: Is it a contradiction for one law to
require a man to do X and another to make it a crime for him to do X. While not against logic,
it might not make sense to the aim of the system. If we are looking to govern human
behaviour, such contradictions will confuse citizens. Remedy: Reconcile inconsistent
principles. Judges should mitigate this issue through interpretation
(6) Laws must not require the impossible: Citizens would fall foul of such laws through no moral
fault of their own. Includes pitching the standard of good behaviour too high for citizens. Such
laws exist as a power play to remind the subject he should be ready to serve the ruler’s
whims and desires. Impossibility relates to standards not physically impossible acts. The
reasonable man standard might impose the impossible on certain people. However does not
 mean we tailor the standard to individual’s quirks as we would lose capacity for objective
judgement. Balance objective judgement with sympathetic identification by formalising
definitions of deficiencies that we can overlook. Blurred line between extreme difficulty and
impossibility.
(7) Laws must be fairly constant through time: Laws should not be changed too frequently. One
might act upon a particular law, then realise a different law governed the situation before
one’s activity was complete. Unfair for defeating legitimate reliance on the law. Law cannot
be effective at regulating human conduct as people might not know about the frequently
changing rules, rendering second requirement of publication possible to satisfy but not truly
serving its purpose.
(8) Congruence between official action and rules as announced: Guards against selective
enforcement, ensures no unfair advantage. Need for proper interpretation of the law so it can
be properly applied. Perceived lack of fair play could risk throwing law into disrepute.
Maintain congruence through procedural due process, checks and balances. Judiciary
prevents discrepancy between declared law and how it is administered. Relying only on the
judiciary to prevent misadministration means correction of abuse depends on the affect
parties’ willingness and financial means to litigate his case. Might need overseeing agency
too. Have a consistent way to interpret the law (perhaps using legislative intent).
Infringements can be cumulative: failure to meet good order does not necessarily result in lack of
legal status. Even in Hitler’s regime, one cannot say there is a total failure in any of the 8
requirements as the laws relating to non-Jews continued to comply with the 8 requirements.
Fuller’s requirements: (1) Conceptual claim that if you fail entirely in one requirement, you cannot
call it a legal system. (2) This is also a standard for a legal system. One may not do so well with
some of the criteria but it should reference these standards.
Values of rule of law: Autonomy – if there is no consistency, hard to have stability and
predictability for one to make plans for the future. Respect for dignity – adhering to the criteria
respects your agency as a human being, able to act upon reasons and decide on a course of
action. By communicating rules in advance, law gives you options to comply, does not just force
you around. Protection from arbitrary power and more efficient pursuit of law’s goals.
2. Theories about law: Legal positivism vs Natural Law theory
Nature of Disagreement: McLoughlin v O’Brian | Riggs v Palmer
Two kinds of disagreements: (1) What the law ought to be or (2) what the law is. (1) usually occurs
when statute is clear and judges disagree about how law should develop to apply to a case. (2) Is
when statute is poorly drafted
Dworkin’s “plain-fact view”: Lawyers and judges actually agree about the grounds of law.
Questions of law can be answered by looking in the books where records of institutional decisions
are kept. Law exists as a plain fact and what the law is in no way depends on what it should be. So
when lawyers and judges disagree, they are not disagreeing about what the law is, but what it
should be. Their disagreement is over morality and fidelity, not law. (Seemingly LP view of the law)
2
Purposive (natural law) vs Literal interpretation (legal positivism)
Riggs v Palmer (Statutory Interpretation): Case about grandson who murdered his grandfather
because he knew the will left him the bulk of the estate and suspected the old man would leave
him with nothing as he recently remarried. Issue was whether he was legally entitled to the
inheritance. Problem: New York Statute of Wills said nothing about whether someone could inherit
if he murdered the testator. The disagreement: Not disagreement about the law but the
interpretation of it. There’s two statutes: the physical one and the ‘real’ one that was created
when the law was enacted. Theory of ‘literal’ interpretation: Words in the statute be given what we
would assign to them if we had no contextual information. Dissenting Judge Gray insisted that the
statute contained no exceptions for murderers and voted in favour of the grandson. That if Elmer
had lost his inheritance because he is a murderer, it would be further punishment beyond his jail
term. Cannot have double punishment. Majority Judge Earl gave effect to legislative intent, said it
would be absurd that legislators intended murderers to inherit, that’s why the ‘real’ statute they
enacted did not have that consequence. Statutes should be constructed against the general
principles of law, denied the inheritance – statutory interpretation such that it conforms as closely
as possible to principles of justice. Two reasons for this: (1) Sensible to assume that legislators
have a general intention to respect traditional principles of justice unless they clearly indicate
otherwise (2) Statute forms part of a larger intellectual system, law as a whole should be
construed coherently with the larger system and the law elsewhere respects the principle that no
one should profit from his own wrong so that statute of wills should be read to deny inheritance to
someone who has murdered to obtain it. Relates to the Dworkinian debate on whether grounds of
law can or cannot be exhaustively defined by statute. Dispute about Elmer was not about whether
judges should follow the law or adjust it in the interests of justice. It was a dispute about what the
law was, about what the ‘real’ statute the legislators enacted really said.
McLouglin v O’Brian (common law): HL extended liability for nervous shock to all cases where it
was reasonably foreseeable that the Pf would suffer such injury, irrespective of any limitations of
time and space. Issue: Whether a person causing an accident on the road owed a duty of care to a
person who suffers nervous shock as a result of perceiving the aftermath of the incident. No
precedents to such a case. Held: Test of liability for nervous shock is the ordinary test of
reasonable foreseeability. If it was reasonably foreseeable that the mother would suffer a nervous
shock even though she was nowhere near the scene, she was entitled to recover. No legal
limitations of time, space, distance, nature of injuries or relationship of the victim to the Pf.
Dworkin raises the idea of strict vs relaxed stare decisis: Strict – obliges judges to follow earlier
decisions even if they believe those decisions were wrong. Relaxed – Demands only that judge give
some weight to past decisions on the same issue, he must follow unless he thinks them
sufficiently wrong to outweigh the initial presumption in their favour. HL Lords disagreed about the
true state of the law. Did not buy floodgates argument from the CA as risk was not sufficiently
grave. Two Lords said it would be wrong for courts to deny recovery to an otherwise meritorious
Pf. Precedents should be distinguishable only if the moral principles assumed in the earlier cases
did not apply to the Pf in the same way. Once it was conceded that damage to a mother in the
hospital hours after an accident is reasonably foreseeable to a careless driver, there is no
difference in moral principle between the two cases. However inconvenient the consequences to
the community cannot justify refusing to enforce individual rights and duties that have been
recognised and enforced before. Difference between ‘principle’ and ‘policy’
Legal positivism
(1) Law is a social fact: Law doesn’t have to conform to a higher natural law. Laws as commands
from a political sovereign (monarch or government) – Austin. Laws as rules in line with master
rule of system (Constitution) – Hart. Social fact thesis: What is law is a question of social fact
in each society, identification of the law does not require resort to a moral argument.
(2) No necessary connection between law and morals (Separability thesis): Existence of law is
distinct from merit. Law does not need to be good for it to exist. Legal system need not be a
moral one, and a legal obligation is not a moral obligation, so laws are not necessarily just. A
contingent connection is possible, where morals influence the law and can be used to critique
 the law. Moral standards can be incorporated into specific laws eg s292 PC on distribution of
obscene materials.
Hart: Law as a system of rules. Austen’s focus on habit was wrong. Only focuses on external
behaviour. Rules have internal aspect or the Critical Reflective Attitude (CRA) that is not captured
by habits. CRA – if it is a rule, society would criticise those who deviate, demand for conformity,
acknowledge that criticism and demands in question are proper and justified, there must be
normative vocabulary like ‘ought’ ‘must’ and ‘should’, ‘right’ and ‘wrong’.
Hart’s Two Types of Rules: Primary – Rules of behaviour, valid according to ROR, must be generally
obeyed by citizens. Secondary (Meta) Rules: Rules above rules – identify these rules, and how the
other rules should be changed. Most important is the Master rule: Rule of Recognition (specifying
criteria of legal validity) and rules of change/adjudication “effectively accepted” as common public
standards of official behaviour by officials
Mark Hendrickson: The Legal Positivism of the Elite: A slippery slope toward Tyranny
Arguments For Legal Positivism:
1. Flexibility and Adaptability: Legal positivism argues that law is a social construct, allowing for
flexibility and adaptability to changing societal needs. This perspective contends that laws should
be subject to human invention rather than relying on fixed, unchanging principles.
2. Pragmatism: Legal positivism suggests that law is a matter of convenience, expedience, or
personal preference rather than being based on moral absolutes. This pragmatism can be seen as
a practical approach to shaping and adapting laws to serve the needs of society.
3. Progressive Social Engineering: Proponents of legal positivism often see it as a tool for
enlightened members of society to use legislation in building what they consider to be a better or
"great" society. This perspective may align with progressive and socialist ideologies that advocate
for societal improvements through legal means.
Arguments Against Legal Positivism:
1. Moral Relativism: One of the main criticisms is that legal positivism rejects the existence of
immutable principles and moral absolutes. Critics argue that this can lead to moral relativism,
where the interpretation of right and wrong becomes subjective, and laws are shaped by personal
preferences rather than universal values.
2. Elite Control and Tyranny: The article suggests that legal positivism can empower an elite class,
such as central planners and social engineers, to use legislation as a tool for control. The fear is
that this can lead to tyranny, as those in power may impose their will on the rest of society,
potentially disregarding individual rights.
3. Disrespect for the Law: Legal positivism's view of law as a social construct, rather than a
reflection of eternal principles, can lead to a lack of respect for the law. This disrespect may
manifest in selective administration of laws, disregard for the Constitution, and the erosion of
equal treatment before the law.
The debate around legal positivism involves considerations of flexibility and adaptability versus
the potential for moral relativism and elite control leading to tyranny. The article leans towards the
view that legal positivism has negative consequences, particularly in terms of its impact on
individual rights and the potential for abuse of power.
Dworkin’s defence of LPs: Concedes that lawyers and judges in the cases thought they were
disagreeing about the law but argues the description of law should not be taken at face value. It is
important to distinguish between ‘standard’ and ‘core’ uses of the word ‘law and borderline or
3
penumbral uses of the word. Though judges and lawyers might all agree about the core law,
because words are not precise and exact, they permit borderline cases so lawyers may use the
word law differently in marginal cases when some but not all of the grounds specified in the main
rule are satisfied. This explains why they disagree in hard cases. Each uses a slightly different
version of the main rule and the differences become manifest in these special cases. Better to
think about the argument as one of repair, about what the law should be, because we will
understand the legal process better if we use ‘law’ only to describe what lies within the core of the
concept. So positivism, defended in this way has a reforming as well as descriptive character and
protects the plain-fact thesis.
Natural Law Theory – Also concerned with question of what the law ‘is’. Laws must have a
connection with morals (there is a moral threshold that laws must meet to be ‘law’). Would permit
a range of answers eg. Radbruch’s formula where ‘manifestly unjust norms are not law’, court will
not be required to overturn an imperfect legislative rule. Law posited by human authorities must
conform to universal higher principles (moral principles) derived from: Objective conception of
human nature, God’s law and/or law of reason. Law is what conforms to a higher law: Universal
principals outside law prescribe the content of laws and provide a threshold that posited laws
must meet or they lose their legal status.
Central tenets of NLT: Objectivity (Universal and immutable principles), Discoverable (by reason or
means available to all), Higher Law – relationship of superiority towards laws posited by political
authorities. Aquinas’ Natural Law – Discovered through human’s participation in eternal law
through ‘practical reason’, principles inherent in eternal law that guide the behaviour of rational
and free-willed beings and form the basis of moral and ethical conduct. Human law must be laid
down in accordance with Natural Law
Scope of Natural Law: Necessary connection do not mean laws must be congruent with morals,
not all morals need to be enforced through law. Not merely aspirational – necessary connection
has practical consequences eg judge expressing fidelity to the ‘law’ (manifestly unjust law is not
law) and legislator acting in good faith in enacting ‘law’, but can be aspirational to guide
development of the law. NLTs expect legislators or judges to consider morality when making laws
in good faith, when framing statutes or when developing common law. The allocation of authority
must still conform to natural law
American Legal Realism: Believe that cases are not determined by legal rules, cynical view on
adjudication. The ‘Bad Man view” – bad man only wants to know how the courts will decide,
nothing more. ALR recognise that judges are influenced by personal biases, personal experience
and societal factors when making decisions. They are sceptical of formalism, that legal rules and
principles cannot provide a complete and consistent framework for decision making, argue that
judges make subjective judgements and considerations beyond legal doctrine.
Critical Legal Studies: law is merely politics, law tends to legitimise power relations. Society
should rethink the validity of its institutions; an individual is shaped by his context and is limited in
his imagination, legal doctrines mask reality of contradictions that arise due to rival visions of
human association to which principles/theories are related. Legal doctrine is political: Justifying
law is futile, no overarching theory can provide one right answer in any legal dispute (cf Dworkin’s
Herculean theory), any purported resolution represents an accidental outcome of perennial
ideological conflict. There are hidden interests and class domination in legal intuitions and law –
law has been deployed for the benefit of particular classes.
3. Morality: What is the nature of morality, subjective or objective?
 Meta-ethics: Asks how do we know whether
morality exists, is moral knowledge possible
Normative-ethics: Explains which kinds of
actions are right or wrong, plausibility of
moral rules
Applied ethics: Applying normative ethics to a
situation, like what should I do in this
scenario?
Choosing a worldview: Whether you are a
objectivist, subjectivist, nihilist (Morality is
false)
How does morality exist: Meta-ethical belief
system – (1) Objectivist where morality exists
independently (i) it is universally binding (ii)
moral statements can be true or false (iii) you
can know some morality. (2) Scepticism (A)
Subjectivism – morality exists subjectively (Ai) Subjective to each person (Individual subjectivism)
(Aii) Subjective to each culture (Cultural relativism) (B) Nihilism (morality does not exist) (Bi) No
such thing as morality (Error theory) (Bii) Moral statements are ‘wow’ (Expressivist)
Moral Objectivism: Yes morality exists regardless of whether we approve/believe, not dependent on
individual/culture
(1) Metaphysical inquiry: Morality exists objectively and is universally binding. “Objective moral
standards apply to everyone, even if people don’t believe in what they do, even if people are
indifferent to them, and even if obeying them fails to satisfy anyone’s desires” (RSL p291)
(2) Semantic inquiry: Moral judgements are statements that can be true or false, their moral
properties exist independent of beliefs
(3) Epistemological inquiry (nature of knowing): Morality can be known; we can know some
morality. Some moral beliefs are true, there are methods for justifying moral beliefs and moral
knowledge is possible
Morality vs Etiquette: Etiquette may govern behaviour in specific contexts but morality applies
universally across all contexts, RSL says that morality has unlimited ‘jurisdiction’.
Whether moral knowledge is possible: One thing to say that gaining knowledge about morality is
difficult, another to say that it doesn’t exist. Our beliefs must answer to an objective reality, the
facts are what they are regardless of agreement/disagreement about them. Possible sources of
objective morality (assessed by human reasoning): God, human nature (Finnis, deriving norms from
human nature)
Moral Scepticism – Either nihilist or subjectivist
Moral Subjectivism: It depends whether morality exists. Subjectivists argue that morality is
subjective (relative) to the views of an individual or culture
(1) Morality exists but it is ‘correct’ only relative to each person/society and there is no
universally binding truths
(2) Subjectivists believe that there is a ‘right’ answer but what is ‘right’ is relative to the values of
the individual/culture.
Critique by RSL: But the fact that different individuals or cultures have different moral
standards does not prove moral relativism…the fact that a particular moral view was
accepted in the past but is now rejected…does not prove that moral relativism exists. This is
because Universal Moral Norms when applied to specific cultures, will be different. But the
same universal moral norm applies (treating someone as you would treat yourself). It is still
objective, and not necessarily subjective
4
Subjectivism brought to its logical conclusion, one is forced to admit there are no constraints to
autonomy and you cannot bind another person to their subjective points of view. We are all equally
worthless. But if a ‘subjectivist’ is not willing to say that, there must be some non-subjective
constraints preventing him from doing so, the subjectivist is not truly subjective. He must be
holding on to some objective moral norms that can be challenged.
Moral objectivity encourages deliberation and dialogue but if you are a subjectivist, moral dialogue
cannot take off because each person would be ‘right’
Implications of Subjectivism
(1) Moral infallibility: All that is right and wrong depends on the individual. Can you never be
wrong? RSL finds it hard to believe because you would want to know whether what you are
doing is right or wrong. If you are a subjectivist, you cannot look beyond yourself. You are the
law giver of right and wrong. This is the problem of moral infallibility, no way to test.
(2) Moral equivalence: Eg one says abortion is right another says it’s wrong. They are both right
on their own terms and dialogue breaks down. Superficial way to resolve this: They are each
right because they each express their own opinions
(3) Moral Progress: Eg. Society that moves on from owning slaves to one that does not. If you’re
subjectivist, you cannot say that there is progress, you can only call it change. Progress
implies an objective benchmark that you can refer to and you can test what your culture
approves, thus suggesting an external standard
Is subjectivism tenable
- Conceptually and practically: fails to explain serious moral disagreement in the world,
resolution of moral dilemmas require an objective standard. Hard to accept that the ultimate
overriding value is that one should have unlimited autonomy
- Ability to handle/respond to contradictions generated by relativism: Can everyone be correct?
Once a subjectivist attempts to hold another person to their moral standards, they must give
up their moral subjectivism
- Openness to challenge: Believing that your own convictions is the ultimate truth would lead
to close-mindedness, objectivity encourages the search for truth. Dogmatism is a strike
against the individual, not objectivism
“If we claim that our moral opinions are personal and can't be tested against any independent
standard, we shut down genuine dialogue. We apparently respect all persons by treating all views
as equally valid. Yet, if one view is as valid as the other, neither person can begin to persuade the
other of the soundness of his view, for soundness connotes some independent objective standard.
If each is simply entitled to his subjective opinion, the view of each cannot be subject to re-
examination against the view of the other. It is this false modesty of subjectivity that cuts off
dialogue. Acknowledging that we are claiming to be right smacks not of arrogance, but of true
humility and honesty. We admit that in trying to persuade others, we are at least implicitly
claiming that the views we hold dear are correct, against an independent standard. Yes, we have
to hear the other out, and may be corrected upon hearing his or her view. This, surely, paves the
way for true dialogue.
After all, how can we begin to know one another unless we are honest with each other” (Tan Seow
Hon, ST 2004)
Moral Nihilism
2 types: Morality does not exist (Error theory) and Sincere moral statements don’t exist
(Expressivist)
Hume’s non-cognitivism: the ought-is problem. When one makes a claim about what ought to be
that are based solely on statements about what is. Just because something is a certain way (is),
does not mean that it should be that way (ought). This derivation is impossible. We cannot derive
moral statements solely based on observations or facts. Claims about right/wrong resemble
expressions of emotions which cannot be true or false – wrongness of an act lies not in the act but
one’s subjective sentiments of guilt. Moral judgements cannot be objectively true
(i) Illogical for someone to look at the state of affairs and jump to an ‘ought’. Eg. to
critique Finnis, just because human beings are like that, you cannot say they ‘ought’
to be. Cannot jump from is to ought
(ii) Expressivism – when people make moral statements they don’t mean to talk about
moral properties because moral properties don’t exist.
David Hume's non-cognitivism is a significant contribution to the debate on morality
1. Reason and Passion: Hume argues that reason is, and ought only to be the slave of the passions,
and can never pretend to any other office than to serve and obey them. This implies that our moral
judgments are not derived from reason, but from our passions or sentiments.
2. Non-Cognitivism: Hume's non-cognitivism suggests that moral judgments do not express beliefs
or facts, but rather, they express our sentiments or emotional responses. Therefore, they cannot be
true or false.
3. Influence on Action: Hume's non-cognitivism also contributes to the understanding of human
action. He suggests that actions are behaviours suitably caused by an intention, which involves, at
minimum, a belief-desire pair.
4. Morality and Truth: Hume asserts that moral distinctions are not derived from reason, and as
long as it is allowed, that reason has no influence on our passions and actions, 'tis in vain to
pretend, that morality is discovered only by a deduction of reason.
5. Critique of Moral Rationalism: Hume's non-cognitivism challenges moral rationalism, the view
that moral requirements are requirements of practical reason itself.
Hume's non-cognitivism has profound implications for our understanding of morality, suggesting
that our moral judgments are expressions of our sentiments and not cognitive states that can be
evaluated as true or false. This perspective has sparked extensive debate and continues to
influence contemporary discussions on morality
Postmodern discourse: Constant fear of irresolvable differences, ultra-sensitive topics and
intractable debates. Will be tempted to say there is no right or wrong, to not seem prejudicial,
judgemental and intolerant. So you assume no truth is objective just because of the existence of
disagreement on morality. There should be open dialogue, that there is objective morality out
there, have the courage to take a stand and back it up.
Link to legal theory: whether a law is deemed unjust depends on the nature of morality
- Connection between law & morality: Consequence of imposing laws on everyone
- NLT is premised on moral realism - if not, when will/can manifest injustice cause a law to lose
its legal obligatoriness?
- Why reason about moral judgements when we can use legal obligations to shape human
behaviour? Such a law may be objectionable. If we accept this idea & take it to its logical
conclusion, how?
4. Hart v Devlin – Justification of Legislation: Whether criminal laws can be justified, must
consider how enforcement of moral norms through laws restricts individual liberty, and
whether there are any bases to claim legitimacy of enforcing morals through criminal laws.
Stance after the Wolfenden Report: Unless society was going to equate crime and sin, there must
be a realm of ‘private immorality’ which was not the law’s business. Criminal law functions were:
5
(i) to preserve public order and decency (ii) protect the citizen from what was offensive and
injurious (iii) provide sufficient safeguards against exploitation and corruption of others, especially
the young and vulnerable
Eg of criminal laws in Singapore that appear to enforce morality: Racial and Religious Harmony
Laws, s298 of the PC makes it an offence to deliberately wound the religious or racial feelings of
any person, s 42 of Animals and Bird Act against cruelty to animals.
John Stuart Mill: Harm principle – (1) The law can only be used against someone to prevent harm
done onto others but not for his own benefit. (2) Laws only regulate other-regarding acts, ie. acts
that affect others but not self-inflicted acts that may be immoral but do no ‘harm’ to others. (3)
One should only be held responsible for his acts that affect others, for his own acts, his right is
absolute.
Evaluating Mill’s Harm principle: Does it include more than physical harm or other types of harm?
What sense could acts be other-regarding.
- Depends on the values of society, if laws only prohibits acts that harms others, it is implied
that acts upon oneself are either completely private where the state should have no say, or
that the state believes individuals are responsible for their own welfare.
- Law that prohibits harming oneself may signal societal norms that each individual life is
worth protecting, that there is value in protecting one’s life even if one doesn’t want to
Hart: Legal positivist, believes in the separability thesis that law and morality should be
separated.
- Law should only be concerned with preventing harm to others or protecting individuals’ rights
and liberties, one’s private consensual activities that do not harm others should be left along
and should not be subject to the state’s intervention
- Validity of the law does not depend on moral content
- Believes that morality is a personal belief and should not be imposed through law
- “Tyranny of the majority” – imposing the moral values of the majority on minorities
Qualifications to Mill’s Harm Principle: Laws can intervene in 2 scenarios where harm is not
caused to others.
Legal coercion needs to be justified because freedom of individuals is impinged, (i) when
incarcerated and (ii) if they refrain from acts they would otherwise have done
(1) Acts of public indecency (public manifestation of prostitution) must be balanced against “a
right to be protected from the distress which is inseparable from the bare knowledge that
others are acting in ways you think wrong, cannot be acknowledged by anyone who
recognises individual liberty as a value”
o Hart is saying when you enforce criminal law based on public indecency, you cannot do
so if it is only based on your knowledge that you think others are acting wrongly (just
because you think sex in public is wrong does not make it right for you to assert public
indecency)
(2) Paternalism: Where laws are needed to protect actors from themselves where decisions are
made “without adequate reflection or appreciation of the consequences; or in pursuit of
merely transitory desires; or in various predicaments when judgement is likely to be clouded;
or under inner psychological compulsion; or under pressure by others of a kind too subtle to
be susceptible of proof in a law court” (not thinking rationally)
o Critique: is there some criteria that Hart is using to assess rationality, has he smuggled
morality in. Whose morality? Society or the individual.
o Comparing with the first proviso, if he is enforcing society’s moral core how is he
different from Devlin
Hart is propounding a more superior theory than Devlin, but with the two provisos is he not
propounding the moral core? So who does it better.
Consent: could feature in irrationality (where law can protect an actor against an irrational self),
whether you are irrational consenting to something. Eg if you enter an MMA match willingly, why
does the law not criminalise MMA matches? Only if you are acting irrationally, then the law can
legitimately step in to regulate. So if you consented, you are not acting irrationally so law cannot
step in to regulate.
Whether Hart has been successful in decoupling law and enforcement of morals: Identification of
publicly ‘offensive’ acts and paternalism is inevitably based on morals
Devlin: Stability of society depends on shared moral framework and that behaviours that may not
harm others but may still be considered ‘immoral’ could erode the moral framework and thus
should be subject to legal prohibition
- Society has a legitimate interest in protecting its moral values and the state has the
responsibility to uphold these values and that law must reflect the moral values of society,
and if the consensus of society deems something to be immoral, the law should prohibit it
- Argues that criminal laws should be allowed to enforce morality beyond the harm principle
Disintegration thesis: Law may protect the moral code of society; society is entitled to preserve
its morality just as it is to safeguard anything essential to its existence. The moral core of society
would be threatened and ‘disintegrated’ if ‘immoral’ behaviours are allowed and go unregulated.
Therefore, there is a legitimate interest to prohibit such immoral acts.
Society is a community of ideas, held together by bonds of common thought about good and evil,
“such binding ties of cohesive sentiment or recognised morality are as necessary to the society as
recognised government”. (1) If Devlin meant physical disintegration, there is no longer a society,
so he is trying to protect the existence of society. [Hart’s response as to why you try so hard to
protect a society – if this society is racist for eg. let it disintegrate, better off this way]
Morals of society are morals of the “reasonable person” (Constructivist): Moral judgement of
society is something which any 12 persons drawn at random might after discussion be expected to
be unanimous. Individual assent or majority opinion is not sufficient
Critique: Whether it is an objective standard or morality of the particular society?
When enforcement of the law is legitimate: The law may step in to prohibit acts/private immoral
behaviour (even when no physical harm is caused to individuals and society, even if consensual)
when the “limits of tolerance” are reached crossed. Otherwise, society may disintegrate.
How to determine the moral core (arguable): Confused as to whether it is an objective moral
standard or the descriptive moral code of a particular society. He says morals of a reasonable
person and moral core can be discerned by a constructivist morality approach (thought
experiment), with the 12 random people that will have a common understanding of right and
wrong. Devlin mentions “Unmanufactured disgust” is this subjective or objective? If Devlin is
objectivist, the 12 persons are a universal objective standard, but if it is only in relation to that
particular society, then he is subjectivist. (Remember that objectivists can also work within
cultural sensitivities. Only cease to be objectivist when their right and wrong are derived from
that particular society).
Practical Implementation: Individual vs Society – Balancing between private and public interest.
Guidelines for legislatures in enacting laws enforcing morals.
(1) There must be toleration of the maximum individual freedom that is consistent with the
integrity of society
(2) In any new matter of morals, the law should be slow to act (Shift in moral standards vs shift in
toleration, with the moral judgement still intact)
6
(3) As far as possible, privacy should be respected (privacy as a prudential consideration rather
than an absolute principle)
(4) The law is concerned with the minimum and not the maximum (Gap between the moral law
and the law of the land)
A prudential choice is necessary, judgement must be made in each case, taking account these
factors
Interpreting the Disintegration Thesis: (1) Seamless web of laws [fundamental principles on which
laws pivot] (2) Shared morality [constituting society] (moral ecology)
(1) The Seamless Web: Need to protect fundamental principles on which a series of laws pivot –
an attack or devaluation of these principles can lead to destruction of a fundamental
agreement as to good and evil eg. devaluation of the worth of certain lives can attack the
principle of equal moral worth and dignity, may have repercussions in the future on the worth
of similar placed persons under the law (principled slippery slope)
(2) Moral ecology (shared morality): State has a duty to protect its moral ecology – protect people
from vices, the corrupting impact of being legally able to act out their vices or a hardening of
the conscience in a manner that restricts subsequent capacity to make moral choices. Using
law to uphold public morality as a common good, while letting schools, families and religious
institutions play their roles as primary moral teachers.
Need for difficult prudential choices: To be sensitive to the educative effect of the law. It signals to
society and shapes the moral ecology. Criminal law to protect the moral ecology (the environment
that is either friendly or hostile to vices and virtues, laws play a role in shaping it). Presupposes
what is truly universally a vice and virtue, otherwise society ends up being run by a dictator. Only
works if the defenders defend objective moral ecology and there is something universal to protect.
Criminal law as a signalling effect: Eg. If given a clean slate, some people that were against repeal
of 377A would not put 377A in the law books however, they were against the repeal because if it
was already on the law books, removing what was there, even though they would not have put it in
in the first place, would signal a weakened understanding of rights a wrongs in a society. There is
a reciprocal effect between law and morality.
Robert George (enforce the moral core but look at what moral ecology you are protecting): There
is nothing unjust about legal enforcement of morals or the punishment of those who commit moral
offenses. If this thesis is true, it does not mean that ‘moral laws’ cannot be unjust. It means that
the injustice of a moral law that happens to be unjust does not consist in its being a moral law.
Laws designed to preserve or advance defective understandings of morality might be unjust. For
eg, laws where governments try to preserve or advance racist conceptions of morality are grossly
unjust, such laws are unjust because they are racist not because they are designed to uphold
public morality.
- while the concept of laws enforcing morality is not unjust, the specific moral principles that
these laws uphold can lead to injustice if those principles are flawed, such as in the case of
racism. It emphasizes the importance of the underlying morality that laws are based on,
rather than the mere fact of being a moral law.
5. Finnis v Rawls – Justification of Legislation
Finnis (New Natural Law Theory): Justification for laws must be reasonable. Evaluate all
arguments on their merits by reference to the common good
- Can justify laws based on objective conception on what it means to be human
- 7 Basic Goods are seven aspects of human flourishing; all are equally fundamental,
nonreducible to an aspect of the other, none is a mere pursuit of the other
- BGs are self-evidently good (desirable for their own sake). Private choices: the BGs constitute
intelligible ultimate reasons for our rational choices (“anything one does which does not
 somehow instantiate one of those goods is pointless”), Public choices: Pursuit of such goods
should be facilitated by legal systems to enable subjects to flourish
- Finnis grounds the “rights in goods”: the intelligibility of the ‘right’ is rooted in the
intelligibility of the ‘good’ it protects. Thus the BGs form the bases for legitimate laws. They
are self-evidently good, and are principles “not inferred or derived from anything”, cannot be
demonstrated – ‘simple act of non-inferential understanding’
The 7 BGs: Life, Knowledge, Play, Aesthetic Experience, Sociability (friendship), Practical
Reasonableness, Religion
Life: Includes bodily, cerebral health, freedom from pain
Sociability: Involves concern for another for their own sake and acting for their good
Practical Reasonableness: Autonomy within reason, using one’s intelligence to make informed
decisions that are true to yourself; Internal: Having inner peace of mind not because you are
brainwashed but you genuinely realise one’s freely ordered evaluations. External: Then using that
inner peace of mind, you can bring out one’s authentic actions that can change states of affairs in
the world to affect others.
Religion: Finnis suggests that human freedom, which allows us to rise above instinct and impulse
and shape our environment and character, might be subordinate to something greater. This greater
power not only makes human freedom possible but is also free, intelligent, and sovereign in ways
humans cannot be. Even if one concludes that there is no god, he has participated in the good of
religion. Trying to think about and answer question on religion is the good of religion
The 9 PRs (The common good): They structure and secure the legitimate pursuit of the 7 BGs (the
common good) – the ‘right’ follows the ‘good’.
Autonomy within reason: Individuals are free to prioritise subjectively the goods in their own lives,
as long as they respect the methodological requirements of the 9 PRs in pursuit of the 7 BGs. Only
when you pursue the 7 BGs using the 9 PRs can you say that one is acting ‘morally’.
Legitimate law-making must have a set of conditions that enables the members of a community to
realise their personal objectives and stipulates the ground rules they must follow in line with the 9
PRs eg. to act for the common good of one’s communities
Justification for authority: Laws may legitimately be framed to prohibit acts constituting a
violation of any of the PRs. Eg. law should not permit acts which destroy BG of life as these are
unreasonable exercises of autonomy which disrespect other equally fundamental BGs
(1) Have a rational & coherent life plan (view life as a whole, plans must be rational and
attainable) (2) Don’t neglect or discount or exaggerate any of the BGs (eg. prioritising knowledge
over play during exams, prioritisation cannot be arbitrary). (3) Treat everyone equally (equal moral
worth of humans, everyone should have equal access to participation in the 7 BGs, should not
prevent others from getting what you are trying to get for yourself) (4) Remain objective but not
overly detached (don’t be obsessed over one project, should not be all-consuming) (5) Make effort
to flourish, commit to projects seriously (6) Prudential Reasoning: Efficiency within reason,
without being utilitarian or consequentialist. Balances moral duties and participation in human
goods, utilitarian reasoning only weighs utility (7) Respect every basic good in every act (don’t
choose an act which of itself does nothing by damage the realisation or participation of any of the
other BGs. One is morally responsible for ‘intending ends, choosing means and accepting side
effects’. Doctrine of Double Effect: You can still comply with PR 7 even if there is accidental
damage to a BG, as long as the damage to that BG is not intentional) (8) Favour the common good
(9) Follow one’s conscience (be authentic, not brainwashed or prejudiced against others)
Evaluation of Finnis: Accessible to people who are reliant on classical natural law theory, but
difficulty is that it is derived from conception of human nature. Would not apply to animals for eg.
Lack of derivation doesn’t mean lack of justification, just self-evidence; it glides past epistemic
issues as one does not have to provide reasons for why they are so but they are relatable to the
human experience. Dilemmas may occur when the priority of basic goods conflict, subjective
priority can exist, so could lead to strange conclusions.
Perfectionist model – to enact laws to encourage citizens to pursue participation of the 7 BGs
7
To justify/debate a law, admit all arguments into the public square and evaluate on the merits. The
key question is whether the law/policy furthers the common good.
Rawls (Anti-perfectionist liberalist model): Anti-perfectionist model; does not believe law should
be structured to pursue that ‘one’ good life. Each person should be allowed to pursue their own
perception of the good life. Prioritises the ‘right’ over the ‘good’.
(1) Political Liberalism (Comprehensive Doctrines): Since there can be reasonable disagreement in
a free society, there are a plurality of reasonable yet opposing CDs, each with their own
conception of good. From these CDs, society can extract the Overlapping Consensus to form the
PCJ. Therefore, political institutions should accord maximum autonomy to each person to pursue
their own conception of the good life, carving out maximum scope for individual choice and action
through a focus on individual rights. Rawls is concerned with limiting the types of reasons to
justify laws, not to enact less legislation, and is achieved through the principle of legitimacy: the
exercise of political power is fully proper only when exercised in accordance with a constitution,
the essentials of which all citizens as free & equal may reasonably be expected to endorse in the
light of principles & ideals acceptable to their common human reason. Principle of reciprocity: The
use of political power must fulfil a criterion of reciprocity: citizens must reasonably believe that all
citizens can reasonably accept the enforcement of a particular set of basic laws (PCJ derived
from the Overlapping Consensus). Those coerced by law must be able to endorse the society’s
fundamental political arrangements freely, not because they are dominated or manipulated or kept
uninformed.
(2) The Overlapping Consensus
Everyone has a CD but cannot enforce the entirety of our CD because some are unreasonable:
views that bear on constitutional essentials which reasonable persons are bound to differ on
uncompromisingly so use of political power to enforce such views is unreasonable, but Rawls does
not say unreasonable CDs are not true.
Overlapping Consensus suggests an agreement deep enough to reach ideas of society as a fair
system of cooperation and citizens as reasonable and rational, free & equal.
Content of the OC: principles and values of a political conception. Fundamental ideas within which
justice as fairness works out, eg. equal political and civil liberty, equality of opportunity, mutual
respect.
Only reasonable doctrines are part of reasonable pluralism, rationalist believers CDs are not
considered.
Rationalist believers: People who argue their beliefs are fully reasonable and everyone will believe
them if they apply their reasoning. We have to assert that they are wrong in denying the fact of
reasonable pluralism, because they think there are people who are definitely unreasonable (that
there is a correct answer).
Rawls says rationalist believers are wrong but that means he has evaluated their arguments’
merits but the rationale behind deriving an OC is to avoid entering contentious debates where
merits are evaluated and can’t be resolved. Rawls entered a contentious debate regarding
rationalist believer’s thoughts which erodes Rawls’ claim to neutrality.
(3) Political Conception of Justice (PCJ) + Political Values
Separating the ‘good’ from the ‘right, prioritising the right over the good. Preference to establish a
legal system upon values which all can agree upon and society should be governed by principles of
justice which do not depend on a particular vision of the good life. Laws cannot be grounded in
moral convictions as to what is ‘good’.
The object of the PCJ is to have a basic structure of a conception of justice to regulate political
society, not the life of each individual
It is a freestanding ‘moral’ conception not tied to any CDs
The PCJ contains ‘political values’ which can be used in support of particular laws. Can draw upon
ideas of the good, but must be ‘political’ ideas that ‘do not presuppose any particular CD’
The PCJ is affirmed by citizens on moral grounds based on their personal CDs but does not adopt
any particular CD.
Reasonable pluralism: Society can be well-ordered by the PCJ as long as citizens who affirm
‘reasonable’ but opposing CDs belong to the Overlapping Consensus. All citizens might reasonably
be expected to endorse the PCJ but not unreasonable CDs.
Political values: include: justice, domestic tranquillity/public peace, common defence, general
welfare and liberty, equality of citizens, essential protections of human rights, commonly accepted
standards of moral behaviour, national interest, collective good, due respect for human life,
ordered reproduction of society over time.
Neutrality questioned: Supposedly neutral amongst different conceptions of the good life (which
are the subject of CDs). But Rawls already has a conception of how society should be structured.
He starts off with a society that he wants (liberal) and says his program can achieve that. If Rawls
already starts with his own conception of the good, question is whether his program is not neutral
in the sense that it cuts out conceptions of the good that are not compatible with his own
conceptions of the good in the first place. If Rawls already starts with his own conception of the
good, question is whether his program is not neutral in the sense that it cuts out conceptions of
the good that are not compatible with his own conceptions of the good in the first place. Is Rawls
neutral? Not neutral if you are thinking of all possible conceptions of society. Rawls does not
promise that kind of neutrality. Rawls is neutral only amongst reasonable CDs.
Should we want Rawlsian neutrality: Exclusion of wide range of views being considered, so what
happens to ‘unreasonable’ views, so certain minorities could be oppressed by not being
considered. Rawls removes certain issues from being raised to the stage of deliberation because
they could potentially deconstruct society but these issues are precisely what we should be
debating about. Rawlsian regime may be too abstract to solve specific questions that you want the
law to solve. You still need reference to a particular CD to address or interpret Rawlsian program
competes on the same normative plane as other conceptions of the good. He is merely one
contender on how to build society on his conception of the good life. He cannot escape the
normative plane. Rawls’ program is based on a CD, and necessarily requires you to draw from one
CD but he does not explain what is reasonable to him. So why should we prefer the Rawlsian
program?
Public Reason: Laws enacted conforming with public reason as expressed by the majority is
legitimate law; proposed laws should be tested against public reason. Public reason requires
citizens to be able to justify their political decisions to one another using publicly available values
and standards.
When giving public reasons, cannot insist that one reason is the truth. Should not claim to have
any objective basis for the reason you are giving, can only base on values found in the Overlapping
Consensus.
– Cf. this is unduly dismissive of the possibility of truth claims as one cannot conclude that
such beliefs cannot be established by reason unless one examines their merits (Finnis)
Citizens enacting laws would (i) view one another as free and equal in a system of social
cooperation, (ii) prepared to offer one another fair terms of cooperation (laws) according to what
they consider the most reasonable conception of political justice and (iii) they agree to act on
those terms even at the cost of their own interests in particular situations (provided other citizens
also accept those terms)
Reciprocity must be respected: When one proposes terms that seems most reasonable for fair
cooperation those proposing must think it at least reasonable for others as free and equal citizens
to accept them.
Therefore, when government and citizens act from & follow public reasons, legal enactments are
legitimate law.
Critique: this formula could unintentionally favour the majority, if you propose arguments that are
most reasonable to you and only what is least reasonable for others to accept. You end up having
laws that favour the majority. Rawls is not only not neutral, Rawls is also not power neutral and
favours the majority in structuring laws. (cf what CRITS would say about this)
8
Finnis Rawls
Pluralism of subjective views in the background
Knowledge of how we are to act is accessible to every person who is normally reasonable and conscientious (not limited
Moral order required of us arises in some way from human nature itself (e.g. from our requirements of social living)
In some matters (of basic rights) there are correct Fact of “reasonable” pluralism + rationalist truth claims are
beliefs, content of beliefs in may be established by “unreasonable”. Would classify Finnis as unreasonable. Any
reason accessible to all claim that can be established by reason is unreasonable
Self-evident 7BGs + 9PRs to act ‘morally’ ‘Morality’ comes from human nature, something we would all
agree upon as free and equal, living in a community with
6. Theories on Adjudication: How should judges decide cases & how should we make legal
arguments
(1) Legal Idealism: Search for answers in the law through purposive interpretation of individual
rules or discovering a larger coherent systemic purpose underlying the enterprise of law and
infusing its institutions and materials. The law is rational, and coherent ideals can be found within
it and legal rules are generated to apply to specific fact situations
Dworkin – Law as integrity: law is a seamless web comprising rules and principles (requirements
of justice, fairness or some dimension of morality) found within the law. Legal practice is an
exercise in interpretation and judges should choose one (dominant) theory after surveying all legal
material and institutions to obtain a ‘right’ answer for any legal dispute, a theory that best fits the
dominant principles within practice. Ie. Taking the best fit line to show law in its best light- there
is one right answer
Dworkin – Aesthetic hypothesis: Trying to interpret law in its best light akin to interpreting art.
- Creates his political hypothesis from the aesthetic hypothesis, on how judges should interpret
law.
- The aesthetic hypothesis is trying to show art in its best light. Author’s intention theory,
finding the intention of the creator of the art, you are just trying to show art in its best light.
This is just one contender of what makes the best work of art.
- Dworkin is trying to find the best way to show the art in its best light and author’s intention is
just one of the methods.
- You need a sub-theory of identity in a work of art to tell the difference between interpreting vs
changing a work. A meta-theory to understand when you change this art into a new piece of
work. Eg. you edit a photograph, you need a theory to tell you when you have not merely
edited but completely changed it into something else. When interpreting art, you need to have
a theory of identity. In interpreting law we also engage a sub-theory to determine what makes
law, law. We need to identify what law is, that is the sub-theory of identity needed. (Fuller’s
8IRs?)
- Views the enterprise of law like writing a chain novel – each person in the chain has the dual
role of interpreting and creating new text. Each author participating must look at previous
chapters of the book, write his chapter based on an interpretation that fits and the new
chapter must be forward-looking, and author must decide how to best advance the story
- Judge must write his piece such that it is a single unified novel rather than deviate on his
own path.
Dworkin’s Political Hypothesis (interpretation of the law): One’s choice of the best interpretation of
law depends on one’s worldview
Fit: What constitutes the identity of the work (should not be creating new work, does it fit current
practice?)
Substance: What makes it the best work it could be (what shows it point or value)
Fit and substance work together where two competing interpretations could satisfy ‘fit’ but you
need to decide on substance, which story continues the law that best shows its point of value
Focus is not solely on the legislative intent behind statutes or the intent of previous judges in
respect of precedents: constructive interpretation requires the interpreter to make sense of the
institutional materials.
Dworkin’s Hercules: Imposes structure upon law when he chooses an interpretation of law that
best fits practice and puts it in the best light.
- Hercules must not choose according to personal preference, but according to ‘sound
convictions’ about what community morality embedded in the legal institutions and materials
entails
- Judges should not apply “policies” (goals, issues concerning improvements in some
economic/political/social features of community) that are not part of the law. Ie. Only apply
policies found in the law eg. where statute incorporates morality, you can apply that morality
- Mistakes: Judges can disregard some precedents as mistakes if not possible to find a theory
that fits all precedents, should be practised sparingly so that consistency in institutional
history remains real. Eg. (i) argument by history or appeal to some sense in legal community,
the principle that has so little force that it is unlikely to generate any further decision OR (ii)
principle is somehow unjust by reference to ‘political morality’
- Cannot dismiss bulk of cases as mistakes: number of decisions Hercules must count as
mistakes is neither so great nor of such fundamental importance, viewed from the
perspective of legal practice as a whole, that disregarding them leaves him with no solid
foundation for the more general interpretation
Dworkin’s Morality: Refers to standards internal to the law, drawn from political morality
embedded within the law’s institutions and materials. Eg. Where the ideal of integrity conflicts
with ideal of justice, integrity must sometimes yield to demands of justice (cf Natural law
tradition).
Norms in the law or necessarily moral norms and are uncontroversial because they are the law’s
morality.
Affirms the existence of objective morality but vacillates between a commitment to the morality
within the legal institutions vs judges’ constructive interpretation of the law.
(2) American Legal Realism (realist view of the law) [Karl Llewellyn]: Believe cases aren’t really
determined by legal rules
Key concerns: Interested in predictions of what courts will do (bad man view of the law) – only
wants to know how the courts will decide, nothing more, rule scepticism and fact scepticism,
underlying ethical pluralism
ALRs think it questionable whether rules are determinative of decisions even within core areas (as
opposed to merely being under-determinative at the penumbra)
Law as a mask for personal politics (cf Dworkin says that judges do not decide cases arbitrarily
but necessarily engage in interpretation taking account fit and substance)
Statutory interpretation is irrelevant because judges can always choose amongst canons of
interpretation that result in different meanings of statutory provisions. Eg. literal vs purposive
meaning, ordinary meaning vs technical meaning.
Rule scepticism: General propositions do not decide concrete cases
- Rules can be construed in different ways, different rules could be selected from the mass
available to support decisions arrived at for reasons which had nothing to do with rules
Fact scepticism: Facts of each case (even if legal controversy is similar) are infinitely varied, and
changes in facts control decisions
- Even if rules are clear as to interpretation, in lower courts they may have little determining
effect on decisions. A tribunal of fact can always find the facts as it pleases so that a rule will
give the decision it wants. Conscious and subconscious attitudes, beliefs and prejudices
ALRs say that precedents don’t dictate decision, rules can be interpreted in different ways, with
many cases to choose from, there are different techniques that allow judges to use or discard
precedents
9
What is the purpose of the ALRs: To inform judges to be more cautious of their biases, don’t intend
to enforce a program. Just want to critique and raise awareness that there are other factors to be
studied other than laws and facts to find out why judges decide cases in certain ways. Don’t just
look at legal maxims or facts of the case. The realists just want to raise awareness of this
(3) Critical Legal Studies: Law is just politics and tends to legitimise power relations
Key concerns: (i) Society should rethink the validity of its institutions; An individual is shaped by
his context and is limited in his imagination, legal doctrines mask reality of contradictions that
arise due to rival visions of human association to which principles/theories are related (ii) Legal
doctrine is actually political; justification of law is futile, no overarching theory that can provide
one right answer in any legal dispute (cf Dworkin’s Hercules) and any purported resolution
represents a contingent/accidental outcome of perennial ideological conflict. (iii) There are
hidden interests and class domination in legal institutions and law, we should reshape societies by
reimagining legal institutions and law – law has been deployed for the benefit of particular classes.
Basic problem of human predicament: As humans we have different ideologies and different ways
of relating to one another and the law also reflects a similar problem of conflicting interests and
human schemes of association Legal doctrine is an endless series of ad hoc, fragile compromises
between contradictory ideals. There is no seamless web.
Competing interests within the law: Contradictory ideals exist within the law, mirroring the
competing ideals experiencing within larger social life. Unger says develop counter principles to
then see which principle you prefer; society can decide for itself which path to prefer. If they don’t
smash the context, you won’t have a meaningful choice and be stuck by the status quo power
structures. Some principles gain dominance over time as they support decisions that entrench
existing power structures, but the dominance of particular principles is neither necessary nor
justified. Counter visions can generate norms of a whole body of legal doctrine if only it had been
developed, rather than suppressed, by judges motivated by factional interests. Law is ideology.
Liberal doctrine’s tendency to view count vision as comprising ad hoc qualifications to dominant
principles.
Legitimation Thesis: Arguing with legal ideals assumes that existing law is justified. However,
because we live in an imperfect world that is riddled with inequality, the law isn’t justified in the
true moral sense. There are hidden interests and class domination in legal institutions and law has
been deployed for the benefit of particular classes to entrench themselves.
- The law is systematically unjust and application of conventional legal methods leads to
entrenchment of hierarchy
Counter-principles serve as points of departure: Eg. Unconscionability if it reflects values of
human association, it gives you foundations to develop new areas of law.
Unger on modern contract law as an expression of competing ideals: Legal principles opposed or
matched by counter-principles. General idea of contract law is based upon ideal of autonomy
(individualistic). Ways counter-principles make their way into contract law (Altruistic), eg. areas of
law excluded from normal contract law, bodies of law and social practices such as fiduciary
relationships, special set of principles that are anomalous in view of ordinary contract principles.
We are taught to see counter-principles as ad hoc qualifications to dominant principles, but they
can actually be a cohesive set of ideas, possibly generative norms of the entire body of law and
doctrine. Yet, existing doctrine masks this, treats as dominant principles vs exceptional instances
of departure.
Unger says Hercules is a fraud: Dworkin’s interpretive method is a sham that legitimates the
status quo.
- Mistakes discarded by a judge may well have emanated from counter-principles that are not
prevalent or supported by existing power structures. “Mistakes” that are not disposed over
time can generate a comprehensive counter-theory of law
- Theory does not determine the result of the concrete case. One judge might have decided
wholly different from another, with the result that the direction of the law takes over time is
possibly arbitrary.
- Hercules wants to preserve the context, Unger/Crits want to smash it
- Judges should imagine an altruistic order despite the arbitrariness of values (Kennedy)
- Smash existing contexts, demystify the law, expose power relations, break free of the limiting
and unnecessary formative contexts, re-imagine alternative structures of social life, be truly
free. (Unger)
Effect of the Crits: Advocates for reform to deconstruct the law, reshape society by reimagining
institutions and law. Most crits don’t propose a program, yes smash the context, develop counter-
principles but then what? Crit-thinking might impact the way law is taught, eg. instead of teaching
black-letter contract law, which they view as a tool of oppression, teach contract law from a
political lens. Might discourage open discourse about the law, especially if its normative
components, if you accept the legitimation thesis and decide entirely on open choice, decisions
are characterised by open choice for the most part, which is concerning. If open choice, no
system, can this be law? (cf Fuller)
(4) Legal Positivists – Remember to distinguish true LPs vs Herbert (Dworkin’s idea of a LP)
Dworkin says Herbert will apply a rulebook (says that LPs are heavily reliant on rules and Herbert
cannot decide without the rulebook )
(5) Natural law judge – Will use Radbruch’s formula – manifestly unjust law is not law. Judges if
they are looking at laws that are not unjust, they are bound to enforce the law
7. Lawyers: Thunder v Pepper. Would a separate morality apply to one’s role as a lawyer and do
lawyers compartmentalise one’s life as a lawyer
Conceptions of the lawyer
Traditional: being willing to do things for the client which he would not do for himself and the
problem of reconciling this with the ideal of moral purity – can a good person be a lawyer
Criticisms of the traditional conception: Failure to benefit the appropriate unidentified persons and
harming identified adversaries.
Lawyers as professionals: Possesses inherent characteristic of having an advantage over clients
and clients are vulnerable to a lawyer’s advice. To remedy the imbalance, lawyers must forgo their
moral interest in favour of the client’s.
Upholding standards via statute: eg. Legal Professional (Professional Conduct) Rules 2015: to
‘uphold the standing and integrity of the Singapore legal system and the legal profession’…
‘honourably and with integrity’ … ‘facilitate the access of member of the public to justice’… ‘fair
and courteous’… ‘consistent with the values of the legal profession’
Pepper: Role differentiated morality – different moral rules apply just because you are in a certain
role. A lawyer is sometimes authorised or has a duty to do for the client what he wouldn’t do for
himself.
Pepper’s amoral ethical role of a lawyer: Access to public good and societal commitment to
individual autonomy
- “To accord first-class citizenship to the lay person in a society in which law is omnipresent,
he must be given full access to the law in a manner that is not filtered through the moral
judgement of the lawyer as to which legal rights he is entitled to assert”
- Autonomy + Inherent advantage & vulnerability of the client = lawyers justified in deferring to
their client’s morality (as long as it is within the boundaries of the law)
10
- Value of equality support amoral conception of a good lawyer.
Problem presented by Legal Realism solved by zones of morality
Interaction between the legal positivist view, legal realism, and process jurisprudence in the
context of a lawyer-client relationship. The legal positivist view sees law as a fact of power and
limitation, while legal realism views law as a prediction of human officials’ actions, the focus of
legal realism is the ‘bad man’ view of the law. Process jurisprudence emphasizes client goals and
the instrumental use of law, which deemphasizes the determination of law through adjudication.
The law, in this context, becomes an amorphous entity, dependent on the client’s situation, goals,
and risk preferences. This perspective, combined with the view of an amoral lawyer as a servant
of the client, creates an image of a ‘bad man’ who only cares for material consequences.
The lawyer presents the law from a technical, manipulative stance as a potential constraint, and
the client is influenced to think of the law in terms of possible or probable costs. This interaction
is problematic because it lacks moral input or constraint in the lawyer-client relationship. If the
law is manipulable and without clear limits on client conduct, morality comes solely from the
client.
Implication: Lawyers can do anything if you combine the two ideas (amorality + LR). The client has
to offer moral input depending on their situation, goals and risk preferences. Problem: Clients may
not have a moral compass either due to the general decline of morality in society. Therefore, there
is no moral input in the lawyer-client relationship and lawyers in the aggregate may do bad things.
Therefore, law is amorphous, and may not meaningfully constrain lawyers.
Four factors lawyers can exercise their moral autonomy: (1) Moral dialogue. Client is informed by
lawyer’s moral judgement but has a hold on own autonomy, Client gives moral input too depending
on what they want to achieve. But this takes time and money (2) Conscientious objection in
extreme cases. Lawyer knows where accused hid the body but no obligation to tell the court vs a
lawyer who knows victims are alive, can tell the court. A lawyer can still be a good person (3)
Choice of Client (4) Choice not to practice
The lawyer as Policeman, Judge and/or Deceiver
If lawyer screens based on personal morality he can be a Judge: He decides that your action is
immoral and chooses to block client’s access to the law. Striking out judgement based on
personal morality
Policeman: You are pre-enforcing the law. Like reporting the pollution discharge to the government
even if his knowledge was based upon client confidences. If the law says a threshold is at a
certain limit, it is not the lawyer’s job to enforce it. Just needs to provide access to law
Deceiver: If client asks on a certain area of law, you deliberately hide something from the client
that you think would end up encouraging the client do something you morally disagree with, you
become a deceiver.
Pepper is trying to persuade that his theory is a sound one, that if you think about lawyering,
autonomy is a weighty value coupled with the inherent advantage that puts clients in a vulnerable
position. So, lawyers should always defer to the client if not they will end up being a judge
policeman or deceiver.
Thunder: Idea of the integrated life – Amoral model of lawyering where lawyers are blind to the
social and ethical consequences of the larger purposes their services are being put to, is a deeply
disturbing fragmentation of the ethical life.
Autonomy not the absolute value: Must consider stability of social and political order, well-being of
other people, should not come at the expense of moral autonomy of lawyers
Pepper conflates general right of access with unfiltered right of access to the law: with no regard
to legal purposes and moral judgements, BUT just as our daily actions are affected by ethical
judgements, so should our legal interactions
Prioritising client’s autonomy results in loss of lawyer’s moral autonomy: Taking Pepper to the
extreme, lawyers are obligated to serve their clients however ethically problematic or detrimental
they may be. Requires lawyers to perform a ‘dramatic bifurcation’ of their moral reasoning as a
lawyer vs human being. Lawyers lose the duty to take responsibility for the purpose of their
services and become a slave to their client’s conscience
Appeal of the amoral idea of a lawyer: Dominance of neo-Kantian moral theory – viewing morality
as a matter of rules. Consequence: viewing morality in terms of rules causes one to treat role-
based morality with suspicion, scepticism towards prudential reasoning – tendency to view such
reasoning as amoral, bifurcation between right and wrong and questions of virtue and human
flourishing. Dominance of legal realism – natural philosophical home for amoral technical
conception of the lawyer.
Thunder’s thesis: The Natural-Teleological View of Law suggests that the end or goal of law is the
promotion of the good. The purpose or function of law is to bring about the most good possible.
This view sees the law as having a purpose, and it says that law is defective insofar as it does not
further that purpose. Supports Thunder’s virtue-based model of good lawyering.
Professional responsibility as part of a question of good life and good society.
Role: Function within society constituted by (1) one’s social position or relation towards others
and; (2) social and institutional norms, goals, and standards of excellence associated with the
function (which are intelligible only in light of the goals/norms/standards of excellence of human
life and community). (1) + (2) shape the ‘practical reasoning’ of the role-holder, if he takes his role
seriously and does not see it merely as a theatrical pretence. Eg. role of a policeman (i) Goal-
oriented function (human flourishing) to uphold law and order within society, make citizens more
secure. (ii) Associated virtues: Courtesy, compassion. (Must explain how the role objectively
contributes to human flourishing then ask what are the objective virtues of that role)
How to test whether a person behaves morally or not
Objective virtues: we must be able to ‘tell a story about how it either furthers the good of human
persons, whether it is their external flourishing…or their all-around excellence; or how it harms
some good of human persons or damages their all round integrity or well being. Otherwise to
simply point to a role is to give up explaining it.
“Centred on the concept of human flourishing…virtues that constitute an all-round good human
character” ie. how does this role contribute to/detract from the success of individual lives or our
life together as a society?
How a virtuous lawyer behaves
(1) Determine the goal-oriented function (which results in human flourishing) (2) Identify the
associated virtues based on the standards of excellence
One must interpret the practical requirements of a role in light of one’s own judgements about the
objective goals, norms and standards of excellence that constitutes the role. Requires practical
wisdom. You need to understand the role in order to evaluate it.
Roles are inseparable from being human first
“Even though I act as a judge, librarian, father, healthcare worker, lawyer, I do not thereby cease to
be a human being and I am accountable to others not only as a X but as a human being for my
behaviour as a X.”
Thunder’s Guidelines to be a Virtuous Lawyer
(1) Requirements of a good human life must take priority over the demands of legal profession.
Choice between doing something morally wrong or losing one’s job would have to be made as a
“human being in search of the good”, not merely as a “loyal employee of a firm”
11
(2) Cannot take for granted the demands of one’s role without reflecting on its highest ethical
goals and conditions for meeting them. No algorithm for deciding the quality of one’s contribution
to the common good, requires sound judgement, prudential decisions.
(3) Integrating role of a lawyer within a good life requires courage and moderation. Do what is
humanly possible to improve our society but must also moderate our expectations. Conditions of
human life are fragile and imperfect in many ways, must reconcile with working and living in
conditions that imperfect approximate justice and goodness
(4) Professional and personal excellence are fundamentally interdependent. Thunder says that in
pursuit of one’s professional goals, human virtues are inevitably needed to achieve those goals,
eg. justice, courage, fortitude, diligence, honesty, perseverance, etc. Everyday life is a training
ground for professional success, person who doesn’t live these virtues in everyday life is unlikely
to exercise these virtues habitually at the workplace
(5) Ethical integration in light of relentless pressure to subordinate all other life goals to
professional ‘success’. Ethical integrity is a work in progress but one worth persevering in for the
sake of living the good life and professional excellence
Pepper v Thunder: A good lawyer can be a good person vs a good person can be a good lawyer
Pepper “good” if you value autonomy, Thunder “good” if you are a good human first.
Pepper’s theory would be lawyering as a role has strong moral justification that is not easily
overridden only in extreme cases only where there is disruptive synergy. (Provides a prima facie
approach subject to exceptions of ‘extreme’ cases.
Thunder begins with lawyering role having weak moral justification that is easily overridden by
objective demands of being a human being. A role generates no moral norm, all moral
requirements are based on you being a good human being not because of the role. The role has no
justification (Thunder).
Would link to topic of Morality. Compare the ways a subjectivist or objectivist would critique
Pepper/Thunder
8. Unjust laws: Hart v Fuller + Alexy - Relationship between law and justice. Law that is posited
by humans and the moral principles pertaining to justice. Debate is to show that the first two
questions (what is law and justification of law) are related. The justification for law is
sometimes part of the very question of what law is. The positivists are trying to split the
questions into two but natural law thinking is that the answer to the first question depends on
the answer to the second question. Justification of law is part of the test of validity.
Hart v Fuller - Fuller: Hart’s theory of law fails to give coherence between fidelity to law and our
moral obligation to obey some other considerations in morality
Fuller’s understanding of posited law (Background)
- Law is a purposive enterprise in the sense of regulating human conduct
- Total failure of any of the 8 requirements results in something that cannot be called a legal
system. Fuller’s theory of law takes a macro view of legal systems
- The further away from the 8 requirements, the legal system is not in ‘good shape’, the
resulting system cannot be called a legal system (at the end of the spectrum)
- His legal system built upon the 8 requirements of internal morality + external morality. Based
upon attitudes of morality (external morality) there is a reciprocal relationship between the
internal morality of law and the external morality of law. Eg. An unjust regime cannot survive
in a system that respects the 8 IRs well. Must not have secret laws, if you want to run an
unjust regime, you need to publish all your unjust laws. Injustice would be plain for all to see.
Operational hostility to unjust regimes if your 8 IRs are fulfilled. External morality would
provide stability/support to internal morality. Attitudes of morality can support and provide
stability to a system of law built upon the 8 IRs. How. Respecting the 8 IRs can generate
moral legitimacy that justifies requiring citizens’ obedience. Where does the moral right to get
citizens to obey your laws come from – Fairness, equality. Fuller says that his 8 requirements
thought they form the internal morality of law, they are supported by principles outside of law,
(external morality) which supports the legitimacy of your system of law, giving you the moral
right to get citizens to obey the law. It is a weak substantive basis but a basis nonetheless.
You then have the moral legitimacy to expect obedience from citizens.
- Order simpliciter is a system of law that solely conforms to the 8 IRs. You will have some
basic existence of some substantive external morality norms supporting the internal morality.
Basic respect for fairness. External morality consists of other norms other than fairness. The
more you respect certain external moralities, the more you move to good order.
- Fuller is not concerned with good order, he is concerned with order simpliciter.
Hart’s view of posited law (legal positivist view)
- System of rules, union of primary (rules that bind you directly) and secondary rules (rules of
recognition, adjudication, change)
- To identify laws, look to the ROR. Human laws are recognised by the ROR, if they are not, they
are not laws.
- In Singapore, the ROR is the Constitution.
- How to identify the ROR: Look at the Critical Reflective Attitude of officials.
- Arguable that the CRA is the true identifier of human posited laws.
Alexy + Radbruch (non-positivist stance): May not have to go as far to say A and RB are natural law
theorist. They are NOT natural law theorists.
- Because they have taken a non-positivist stance, their theories are not incompatible with
natural law theory
- Unjust laws are still laws but manifestly unjust laws are not laws
- Means posited law is recognised as the baseline, unless such posited law crosses a threshold
of manifest injustice (based on human morality) the law will lose its legal basis.
- It provides a legal threshold
- Under Hartian regime, there is no threshold to cross, just as long as laws are not recognised
by the ROR.
- Reference points between Hart and A + RB are different. Hart looking at human power. A + RB
need to reference principles of human morality.
- Hart may or may not incorporate justice but A + RB must recognise justice. You are at the
mercy of power of the officials under a Hartian regime
Idea of justice (in the moral sense)
Fuller’s idea of justice
- Fails internal and/or external morality
- Legal system that respects principles of justice = good order. Even his order simplicter,
includes external morality at the very basic level already. So does not have a developed moral
theory
Hart’s idea of justice
12
- Separability thesis – law is still law but just too unjust to be obeyed. Separate what law is vs
whether you have any moral obligation to obey the law or not. Separate moral questions from
the legal questions
- Contingent connection between justice and posited law
- Hart will say he will not obey morally unjust laws but wont say those are not laws, they do not
lose legal character, the laws are just not in morally good shape.
Alexy + RB idea of justice
- How to discern principles of justice/human morality: Historical consensus, grassroots
morality, work of the centuries,
- You can approximate objective principles of human morality by referring to the work of the
centuries etc. Looking for principles of morality that humans can agree on over the centuries
- If you cannot find a consensus in the work of the centuries, you cannot use RBF. You need to
find the consensus of the work of centuries to use RBF. Posited law will prevail.
- It is a safeguard against law-makers enforcing their own morality to strike down laws.
- Alexy adds the logistics of finding the principles of justice.
- Natural law theorists will adopt RBF and say that Alexy’s solution is mostly workable but if
the work of the century fails them, they will look at something else.
Hart v Fuller debate: Context – Woman denounced husband in the Nazi regime, causing husband to
be imprisoned. She was convicted post-war of depriving the husband of freedom and was
punished. She pleaded exemption from liability because her act was legal under Nazi law. German
court found against the woman. Hart thought that the German court did so on the basis that the
Nazi law was not a law and thus could not provide exemption to criminal liability.
Hart’s preferred approach: (i) Let the woman go free and acknowledge the legal validity of the Nazi
statute and its effectiveness in providing exemption from criminal liability (ii) Enact a statute
retroactively to secure punishment to the woman (best of the two evils), critiqued the German
Supreme Court for using morality to decide the conduct of the woman was immoral.
(1) Fuller’s critique on the positivist stance: How can Hitler’s regime should be properly called a
system of law? Hart: We can say it is law but is too evil to be obeyed. Fuller: that fails to provide a
bridge between fidelity to law and external morality of law, denies the obligation to obey law and
other moral obligations. No mediating principle to measure their respective demands on the
conscience. Hart: Don’t need to provide a bridge, just want to identify what law is. Fuller: Hart fails
to appreciate the internal morality of law, it cannot be separated. Fails to see that even order
simpliciter is inherently moral, and morality and law cannot be separated. (“Bridge” refers to
managing the tension of having to obey the law but there are moral forces to pull me away from
obeying the law.)
(2) Hart’s response: (i) Don’t need to provide the bridge (separability thesis) (ii) Fuller also doesn’t
provide the bridge. Fuller would also say that Hitler’s regime is law because the 8 IR do not totally
fail. Even if we accept that there are some basic notions of morality, Fuller fails to provide the link
between obligation to obey the law generated by the 8IRs and attitudes of morality and other
weighty considerations of justice. Fuller’s legal system only provides a weak moral basis to obey
the system, and Fuller’s system does not provide the bridge. Fuller’s own theory is weak in an
unjust regime.
On retroactive laws: Hart says just admit you are enacting a retroactive statute but Fuller says no
cannot because that would be confusing when a court refuses to apply something it admits to be
law. But Fuller also cannot apply RBF under his own theory because none of the 8 IRs totally
failed, Hitler’s regime stands with law. So Fuller might also need to apply the retroactive statute.
Fuller rebuttal of Hart: Fuller said that “there can be no greater legal monstrosity than a secret
statute” as he talked about the Nazi’s constant reliance on resorting to retroactive statutes to
cure past legal irregularities which ‘represents a deterioration in that form of legal morality
without which law itself cannot exist”… “The threat of such statutes hangs over the whole legal
system and robs every law on the books of some of its significance”. Would go against his IR of
rules must be published. Thus, could argue that the Nazi statute was not law.

Fuller’s objection is too narrow and he misunderstands Hart’s positivism
 Fuller’s main criticism of Hart’s positivism appears to be based on what he argues is
positivism’s incomprehensible rendition of the moral obligation of fidelity to law
 He objects on the ground that positivism treats this moral obligation as sui generis, unrelated
to any of the ordinary, extra-legal ends of human life
 Fuller thinks that positivism denies the possibility of any bridge between the obligation to
obey law and other moral obligations
 Accordingly there exists no mediating principle to measure their respective demands on the
conscience
 Fuller’s objection is too narrow
 Fuller misunderstands positivism: even Hart acknowledges that sometimes there may be a
moral obligation to disobey heinous laws
Alexy defending Radbruch against Hart
Whether positivism’s stance or a non-positivist stance on the legal status of unjust laws is
preferable. Question is always which side do you prefer in an unjust regime?
(1) Language: Speaking plainly, having certainty - Hart would say including moral elements in the
concept of law would be an inexpedient use of language, you should just say law is law.
Alexy Non-positivist: If language is the problem, there’s no problem with saying “prima facie law
but in the end not law at all”. Possible for a judge to say this so what is the problem.
(2) Clarity: Hart say injustice is an issue of ethics, non-positivists are hiding their ethical character
by shifting them into the concept of law.
Alexy NP: Clarity in terms of simplicity isn’t the only goal of concept formation, adequacy of
concept is important. Simplicity cannot prevail at the expense of adequacy and jurists are
accustomed to dealing with complicated concepts. It is even more confusing (unclear) to say that
even extreme injustice is law. In extreme injustice, ethical problem is a legal one. Problem is the
difficulty in drawing the line between norms that are just and those that are unjust, but this is a
question of legal certainty not clarity. Positivists assume a controversial premise, Austin
(commands of the sovereign) vs Hart (ROR). Even the simple basis of identifying law is unclear. To
explain law more adequately, you need to bring in morality. Positivism ought not to be taken for
granted as correct. Up to you to choose.
(3) Legal certainty: Hart Positivist – How do we know when injustice is reached
Alexy NP: RBF is restricted to manifest injustice. If there are notions of justice that are rationally
justifiable and knowable, the more extreme the injustice, the more certain the knowledge of it, the
more intolerable and the more evident. Positivists will still say there is still some uncertainty, but
NPs would say that it would be fanatical to require legal certainty as an absolute principle. It is
not the only value, it must be weighed against justice. And RBF give legal certainty precedence
and only in extreme cases inverts the relation. Alexy says cannot reject non-positivism on these
grounds alone.
(4) Relativism: Hart Positivist – No notion of justice can be objectively known because Alexy is
insisting it is clear, but positivist say morality is subjective and unclear.
Alexy NP: Natural law surrounded by doubt, but the work of the centuries can provide the broad
consensus
Hart P: Laboured sceptic, the development of moral views over the last centuries has gone off
track (possible that everyone is entangled in a collective mistake
Alexy NP: Don’t need to prove objective morality. Only need to prove that one can rationally justify
a proposition like saying that physical destruction of a minority of the population on grounds of
race alone is extreme injustice, and to say it’s not extreme injustice is rationally refutable. Shows
that there can be some things that are clearly unjust and RBF works.
Effectiveness of the RBF: What is the point?
13
Positivist: You cannot change reality just by defining a concept. When faced with a morally dubious
statute that is enacted legally, and whoever refuses to obey it will face its consequences, you
cannot use RBF as a defence.
NP: Don’t need to show that the NP concept of law is a better safeguard against statutory
lawlessness.
On effectiveness | NP: If RBF has taken root, it provides a legal route of argumentation. When
faced with a manifestly unjust law, the RBF is a matter of law and can be effective. Risk effect: If
RBF has a risk of being accepted in the next regime, the rogue judge would take a risk that his
acts will be unjustified if RBF would be to be applied. The rogue judge would be doomed in a
wartime tribunal. The risk diminishes if he can be certain that his behaviour will be evaluated later
on the basis of a P concept of law. Non-positivism can be as effective as a positivist regime.
Positivist: Non-positivists may end up with an uncritical legitimation of the law – if a norm is legal
only if it is moral, people might erroneously believe that if a norm is legal, it is moral.
NP: The built-in threshold of the RBF of ‘extreme injustice’ to an ‘intolerable degree’ requires the
threshold to be rationally justified and uncritical legitimation may also occur with Positivists’
stance (law is law I don’t need to evaluate it). There’s always an evaluation as to whether the
threshold has been reached. So how is that uncritical?
Dispensability (after a rogue regime)
Positivist: RBF not needed since new legislator can repeal the law by means of a retroactive
statute
NP: RBF not truly dispensable, still need to wait for the regime to be over. If you insist on RBF
where it takes root, you can argue to the judge to say let me go, if the judge refuses, the judge is
doing something wrong and has to take the risk of a new regime that he has done something
wrong.
Positivist: If the judge wants to be evil, just let the legislator enact the retroactive statute
NP: No, you are forcing political change by using the citizens. Using the citizens to force the
legislator to make changes. The citizens subject to the rogue judge, you are letting them be at the
mercy of the rogue judge. And the change may come much later on in the new regime.
War Crime Tribunal situation dilemma
Positivist: Dilemma of letting the woman go unpunished or face the fact that if the woman were to
be punished it must be according to a retroactive law
NP: Applying RBF, manifest injustice was clear, and if so, should have known that it was not
acceptable and therefore not law that could lead to exclusion of criminal liability.
On Democracy
Positivist: NP concept of law carries risk that judge (appealing to justice) would oppose decisions
of the democratically legitimated legislator
NP: Even in a positivist regime, under this line of thinking a positivist must accept the logical
conclusion that it might end up abrogating judicial review and anyway, RBF only requires forfeiture
of legal character only in cases on extreme justice
Natural Law: Affirmation of NLT does not necessarily vest authority in judges but in legislators as
well. Rightful authority to determine whether laws are just, prudentially determined within the
bounds of NLT. By having to respect constitutionally appointed authority it does not go against
natural law, shows that the authority is still bound by higher principles.
Soper’s Natural Law Dilemma: debate between LP/Realists and NLT (parallel to Hart v Alexy)
- NLTs say law is subject to higher principles, human say-so is not the end. Soper’s dilemma
says, ultimately it is still humans that assess what the higher principles are. If you still need
humans to assess those principles, you have not escaped human control.
- NLTs would say it makes a difference whether we give up respecting those higher principles,
or as a baseline expect that laws conform to higher principles. It functions as a check on
judges and legislators. In a world that has no higher principles, whatever the humans say will
 be the final determination. But in a world where the institutions are held to higher principles,
you still need humans to pronounce, but they constantly need to evaluate themselves against
these principles. If judges need to give reasons, and they need to conform to higher
principles, they need to conform to those principles. It makes a difference.
- Using RBF, a judge would survey the work of the centuries to identify what the higher
principles are, and the survey will not be limited to the particular society’s materials. The
judge must consider the justice of a law in question. So whether you prefer a world of
randomness or some guided methodology.
- RBF provides a legal form of argumentation and not just a moral one (parallel to Hart v Alexy
debate)
Positivist critique of the natural law’s conflation of the first two questions. Hart says if you
conflate them, and the moral question is also the legal question, do you end up assuming that all
laws are justified? If you conflate the first two questions, you end up sometimes uncritically
assuming that as long as this is law, it is justified.
9. Jurisprudence & the Constitution: The LP-NLT debate on whether the
constitution/constitutionalism itself necessitates a particular theory of law
When interpreting constitution in relation to any supremacy clauses, we are trying to understand
the limits of posited law. If the constitution asserts itself to be the supreme law of the land, where
you stand on the NLT and LP debate affects whether there is a necessary connection between
posited law and the higher law of morality. LP is content to regard as law whatever people regard
as law in a given society as law is essentially a human convention, NLT insists on conforming to
higher law.
NLT Position: Posited laws conform to a higher law
LP: Natural law reading is anti-democratic, they are deciding against the will of the elected
legislature.
NLT Defence: But because these principles the judges refer to are objective, in a sense it is not un-
democratic because these principles reflect the will of the people and are objectively good for the
people.
LP: If NLT judges decide based on higher principles, won’t it lead to uncertainty in the law?
NLT Defence: Judges are still held to an objective standard accessible by all, there is a benchmark
that all can critique. NLT’s are protecting the ‘real’ constitution by reference to objective
principles of how society should be arranged.
NLT Defence: LP’s already go against will of the people, that might seem anti-democratic when
they conduct judicial review. NLT’s say judicial review does the same thing. It gives judges a
mandate as a check and balance against the legislature, so it is not anti-democratic. They are
protecting the people and even if it is anti-democratic, the LPs are willing to give this limited area
up to protect the people.
LP Position: Law is identified according to the master rule of the system. The master rule is
identified by observing social fact (Hart)
Positivism will need to rationalise the place of the constitution in the legal system to identify if
that is the master rule.
Identification of laws: Hart & Austin.
Hart: Rule of Recognition (ROR) – will validate the primary rules and secondary rules and it is itself
a secondary rule. Allows you to identify and validate laws. The Critical Reflective Attitude (CRA) of
the officials will discern whether there’s a certain ROR in society. Using ROR you can identify and
validate laws but will also depend on how you discern of the CRA of the officials
Austin: Sovereign, supremely obeyed and does not habitually obey others. Commands issued and
backed by sanctions will be deemed as laws
Critique: Some say that these two steps require evaluation. Not clear why we need the test to be
commands of the sovereign or the CRA of the officials. Not clear to a positivist why NLTs think
14
there are certain posited laws are bound by higher principles, just as NLTs evaluate and prescribe
that posited must conform to higher principles, LPs also prescribe that of all the things you can
do, you make two evaluations. First is the pedigree test, and use the test to identify laws. Critique
is against the point that it is not straightforward to say LPs are descriptive and NLTs are
prescriptive. LPs also go through evaluative processes that are open to challenge. Both need
evaluative tests, both schools of thought are prescribing what law IS. Neither can be said to be
fully descriptive or prescriptive.
Rationalising where the constitution stands, how the constitution fits into the LP world view:
- Constitution is the ROR, it is the ROR for all other laws, if a law is not valid according to the
criterion set out in the constitution is not law.
- If judges or officials invalidate laws according to the constitution, then you can see that the
constitution is accepted as the ROR. You can see form the CRA of the officials that this is the
ROR.
- However, the pedigree test could be the CRA of the officials as the true ROR. The real control
in a positivist system is the CRA of officials. If the behaviour of officials is all that matters to
determine what law is, we are back to a power phenomenon. Whatever officials do become
the law, how is that different from Austin’s version. (NLT critique)
- LP Defence: NLTs don’t fair any better if NLT’s problem with the LP regime is a power
phenomenon. NLTs are likewise suffering under a power phenomenon. NLTs still need humans
to interpret higher principles so ultimately, they are still under the power of humans ( cf.
Soper’s Dilemma)
- NLT rebuttal: Yes but at least NL flows from reason and must find its place, within an inter-
connected coherent system of moral principles. They can be reasoned about, unlike
tyrannical arbitrary views.
- Fundamental tenets of the NLT:
o Epistemological grounds: Higher moral principles are known by all. You can know some
morality, it is accessible to all. You can defend these principles by rational means. You
can argue and reason to demonstrate that these are true moral principles
o Metaphysical structure: There are universal, immutable principles (objective; the way
morality exists is not relative to cultures)
o Natural law is on a higher tier than posited law. The trending view is RBF, that
manifestly unjust law is not law. When posited law conflicts with natural law to a
manifestly intolerable degree, posited law loses its legal character.
Colin Chan controversy: Interpreting the constitution ‘within its four walls’
Incompatible with NLT: (1) No higher principles than what is in the text (2) Local context, where it
suggests cultural relativism, then it is incompatible with the tenet that there are higher principles
regardless of cultural beliefs. (3) Paramount mandate of the constitution, anything that goes
against this must be restrained, may conflate with an NLT reading which wants to give effect to
certain fundamental liberties which may be at tension with that paramount mandate ie.
sovereignty, unity and integrity of Singapore.
Compatible with NLT: (1) Objective principles need to be translated and be sensitive to local
context, does not mean you are adopting a relativist/subjectivist thinking (Cf. RSL in morality)
Objective principles of kindness can translate differently in a local context, when we look at law,
just because Colin Chan tells us to be sensitive to the local context, doesn’t mean that NLT is
rejected. (2) Paramount mandate is to protect the fundamental liberties of Singapore, it is not
incompatible with NLT. Understanding human dignity according to higher law enables
understanding when liberty is violated. If higher law is rejected, the definition of liberty would be
left to the will of the State or the majority of the citizens.
Challenges of reading the constitution in a positivistic way (NLT critique)
Problems with interpretation: You will run out of text to interpret the constitution.
May not be a guarantee of fundamental liberties: Essentially contested concepts and guaranteeing
that the constitution serves to defend the peoples’ fundamental liberties (by law). If law is a
matter of CRA of officials or a sovereign, you are at the mercy of those in power as to what the law
will protect. Positivism does not guarantee fundamental liberties.
LP defence: Under LP regime, we have enough interpretive tools to deal with interpretive
problems. Not stuck when interpreting controversial norms.
NLT rebuttal: Refer to framer’s intent/Originalism but there are some challenges: The interpretive
tools may come up with different interpretations, so you need to choose which one to prefer.
Framer’s intent could be silent, and even if they were express, why should we be bound by the
framer’s intent? Stuck with a constitution that cannot evolve. You will need a higher principle to
guide interpretation. If you refer to a principle that is not found in the constitution to be bound or
not, are you relying on a higher principle? Then you would have conceded to a natural law
approach.

How RBF fits in with constitutional jurisprudence

- According to NLT we are protecting the ‘real’ constitution, if there are amendments that go
against the ‘real’ constitution that are manifestly unjust, judges according to NLT could strike
those down to protect the fundamental liberties
- RBF is only a subset of the NLT.
- Oppressive application of existing provisions is another way for RBF to operate. If you
interpret the constitution in a way that is manifestly unjust, potentially RBF could operate

Positivistic devices in Constitutionalism

- Entrenchment provisions
- Originalism
- Basic structure doctrine
- Customary international law norms

Natural law devices in Constitutionalism

- Universal norms, rules of natural justice: sensitivity to local conditions does not equate with
rejection of universal norms, might involve tailoring norms to local conditions
- Scope of liberty: protection of fundamental liberties would require/presuppose that one has a
general idea of the scope of the liberty

15
16
17