JURISPRUDENCE

– NATURAL LAW 5
REVIVAL – FULLER
NATURAL LAW: REVIVAL – FULLER

Fuller believes that a government through law

must subscribe to the ‘internal morality’ of law.
To what extent does its implementation
guarantee a better legal system?
Do the laws in Malaysia reflect an ‘internal
morality’?

Is procedural naturalism actually naturalist?

NATURAL LAW: REVIVAL – FULLER
Background:

Post World War II:

•Fascism during WWII
•Communist dictatorship post WWII

Question being raised about the eficacy of the positivist

argument:
Should the law be allowed to uphold something that is so
contrary to basic rationality – beyond human acceptance –
and still be regarded as ‘law’?
NATURAL LAW: REVIVAL – FULLER
Background - The Nazi wife case:

Note: Post WWII – Nuremberg Trial of Nazi War Criminal

– arguments: acting according to the law of the regime.

Fact: During Nazi reign, a woman reported her husband to

the Nazi for subversive behaviour [insulting Hitler]

Court found: the statute being ‘contrary to the sound

conscience and sense of justice of all decent human
beings’, did not have the legality that could support the
woman’s defence, and she was found guilty.
NATURAL LAW: REVIVAL – FULLER

Fuller – concerned about the totalitarian

abuse of law – advanced a theory of law
which he categorised as ‘procedural
naturalism’ in an effort to set out the
minimal requirements for a recognisable
‘legal system’

[See McCoubrey]
NATURAL LAW: REVIVAL – FULLER

Fuller major concern is with ‘The morality of law’]

‘there is little recognition…of a much larger

problem, that of clarifying the directions of human
effort essential to maintain any system of law,
even one whose ultimate objectives may be
regarded as mistaken or evil’

 Need a way to control how law is made and

maintained – especially to prevent law from doing
evil
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… that a system of government that lacks ….the

‘inner morality of law’ cannot constitute a legal
system, the system is lacking the very
characteristic – order – that is a sine qua non of
a legal system (just as a structure designed so
as to stay stationary cannot be vehicle)

essential requirement of a legal system that it

should provide coherence, logic, order.
NATURAL LAW: REVIVAL – FULLER

the notion of ‘fidelity to law’ …

that a legal system must have
certain characteristics if it is to
command the fidelity of right thinking
person.
NATURAL LAW: REVIVAL – FULLER
8 defects:
1. failure to establish rules at all, leading to
absolute uncertainty;
2. failure to make rules public to those required to
observed them:
3. improper use of retroactive lawmakings;
4. failure to make comprehensible rules;
5. making rules which contradict each other;
6. making rules impose requirements with which
compliance is impossible,
7. changing rules so frequently that the required
conduct becomes wholly unclear;
8. discontinuity between stated content of rules and
their administration in practice
 NATURAL LAW: REVIVAL – FULLER

8 qualities of excellence. In a legal system the laws

must be:
1. general (not made ad hoc)
2. published
3. prospective, not retroactive
4. intelligible
5. consistent
6. capable of being complied with
7. endure without changes
8. applied in the administration of the society.
NATURAL LAW: REVIVAL – FULLER
Two level of morality:
1. morality of aspiration
’morality of the Good Life, of excellence, of
the fullest realisation of human potential’
2. morality of duties .
‘ starts at the bottom. It lays down the basic
rules without which an ordered society is
impossible, or without which an ordered
society directed towards certain specific goals
must fail of its mark’
NATURAL LAW: REVIVAL – FULLER
Flr view: ‘debate upon the morality of law had
become confused in part through a failure
adequately to distinguish between two levels of
morality’
….the appropriate standard of evaluation in the
analysis of law, in terms of its claim to be ‘law’ is
one of ‘duty’ rather than ‘aspiration’
it is the business of law to ensure the minimum
baseline from which development towards
excellence might move.
need to put together ‘essential requirements for the
making of recognisably ‘legal’ norms within the
context of a ‘morality of duty’.
NATURAL LAW: REVIVAL – FULLER

The operation of the 8 qualitites of excellence:

….the procedural criteria represent a slippery

slope, the point at which a given system actually
plunges to conceptual perdition must be left as a
matter of fact and degree in the actual situation

….a system which at all times failed in all 8

regards would clearly be entirely unacceptable.
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Fuller’s procedural naturalism, is it a natural law

theory?

Is it a system of ‘internal validity’?

Does it conform to the overall NL project –

subjecting law to external standards/higher moral
code (@ rationality)?
… a strand of NL thinking.