Beruflich Dokumente
Kultur Dokumente
p. 3-13
p. 33-94
II. Promulgation
Today, strong tendency to identify law not with rules of conduct, but
with hierarchy of power or command – leads to view that while
judges and executive can infringe legality, legislatures cannot.
Legislature, being n top of chain of command, has intensified
responsibility towards inner morality of law.
THUS, putting high value on leg clarity doesn’t mean we can’t have
things like reasonable, or good faith. Sometimes we even need that!
Appreciate that a “specious clarity can be more damaging thatn a
honest open-ended vagueness” [64]
But, its serious mistake to think that busy leg can, if finds no way to
convert intent into clear rules, delegate task safely to judge or
admin tribunals.
p. 187-224
see page 188 for an overview of the debate between hart and
Fuller, like a boxing match.
Main reason Fuller wants to reply is because so much depends on
the starting points that each writer has, not what they say, but what
they feel is necessary to be said.
Fuller says that what Hart says of full eris that fuller makes too
much of purpose and would do well to play it down in my thinking.
--- Fuller thinks Hart makes too little of purpose. He suffers from
delusion that gain will be realized if only we treat purposive
arrangements as though they served no purpose.
Lets identify these starting points
Fuller in Ch2 said that if you depart from principle of legality enough
– not only bad law, but no law.
◦ Critics seem to agree, but differ to what end is law being so
defined that it cannot exist without some min respect for the
principles of legality.
◦ Will not explore that now.
Lets consider collateral point by Dworkin: that existence of law
cannot be a matter of degree, a law exists or it does not.
◦ But Dworkin doesn't explain why, why, e.g. A country cannot be
ruled by a system that is half law. Fuller thinks because he
confuses daily usage or word, because it is an either or concept
in daily usage: eg. “that is a little bit unjust” is ok, but “that is a
little bit illegal”. The word law has in in-built bias towards the
“black and white”.
◦ Its just how we say it, ie, if we want to say that country a has
more truly law than country b we simply say that country a
government displays a greater respect for principles of legality
than does government B. Finito.