2.2 Legality as a practical art
To escape from the experience of King Rex, Fuller asserts that governance by the law is a practical art and human activity, and therefore he proposes that all the processes of lawmaking, law administrating and judging shall involve developing the skills for that practical art. This craft or art is embodied in corresponding to the eight principles or desiderata of legality as a part of legal processes. Fuller spends considerable space in The Morality of Law and elsewhere fleshing out the content of each of these principles of legality. By setting these principles out explicitly, Fuller hopes to bring to the surface the key elements of legality that are often passed over in accounts of law as too obvious to warrant comment, and which are thereby systematically neglected in jurisprudence. This task is important because it
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In the first place, his argument seems to be that these eight principles are more aspirational in nature because it is often difficult to define at what point there is a violation of one of the principles such that there is a complete failure of legality. Yet, Fuller is clear that the eight principles of legality as they constitute the inner morality of law embrace both a morality of duty and morality of aspiration. They present all aspect of the scale that exist between them too. At the bottom, they are the most obvious and essential moral and legal duties requirements, while at the top, the highest achievements open to human excellence, those qualities and states to which humans aspire toward the legal ideal. Below a certain level of conformity to legality, a normative system is not law at all; above that level, further conformity is regulated by the morality of
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
The purpose of this paper is to discuss how Chief Justice John Marshall affected the American Judicial System. The reader will therefore first find a brief biography of John Marshall. Then the paper will explain in detail the origins of the Judicial Power to subsequently...
Ross, William D.. "What Makes Right Acts Right?" The Right and the Good. Oxford: Clarendon Press, 1930. 753-760. Obtained from PHIL 250 B1, Winter Term 2014 Readings – Ethics. University of Alberta eClass.
For more than two thousand years, the human race has struggled to effectively establish the basis of morality. Society has made little progress distinguishing between morally right and wrong. Even the most intellectual minds fail to distinguish the underlying principles of morality. A consensus on morality is far from being reached. The struggle to create a basis has created a vigorous warfare, bursting with disagreement and disputation. Despite the lack of understanding, John Stuart Mill confidently believes that truths can still have meaning even if society struggles to understand its principles. Mill does an outstanding job at depicting morality and for that the entire essay is a masterpiece. His claims throughout the essay could not be any closer to the truth.
Law has no existence for itself; rather its essence lies, from a certain perspective, in the very life of men.
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
Why is the concept of the rule of law an important aspect within society to have an integral understanding of? The rule of law is a facet of our society that affects and serves our lives on a daily basis because rules and laws dictate the underlying basis of our social interactions. One basic understanding of the idea of the rule of law is that society should be ruled by law, and not by men. At perhaps the most rudimentary level, the rule of law has been used to explain a type of governance that is founded upon universal and neutral rules. Endicott argues that communities can never adequately achieve the rule of law because “it requires, among other things, that government officials conform to the law. But they may not do so, and presumably there is no large community in which they always do so” (Endicott, 1999, p.1). Consequently, an area of rule of law is explored by Aristotle’s critique of Plato’s philosopher-rulers theory and his defence and understanding of the rule of law.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.