Philosophy of Law Fall 2009

Eight Ways to Fail to Make Law – Lon Fuller

Law as “the enterprise of subjecting human conduct to the governance of rules”

The Eight Ways to Fail to Make Law

1. Deciding issues on an ad hoc basis

2. Failure to publicize the rules

3. Abuse of retroactive legislation

4. “How can anybody follow a rule that nobody can understand?”

5. “It is impossible to obey contradictions, or act according to them.”

6. “To command what cannot be done is not to make law.”

7. “A law that changes every day is worse than no law at all.”

8. Failure of congruence between the rules as announced and their actual administration

Fuller provides an account of the ideal of the rule of law

The Law and Morality

Natural law – the view that law and morality are necessarily linked

Legal Positivism –the question of a law’s status as law is distinct from whether it is just

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Philosophy of Law Fall 2009

In what sense has Fuller shown there is an inherent “morality” of law?

How does law differ from mere maintenance of order, according to Fuller?

Does Fuller think the law of Nazi Germany was a proper legal system? Why or why not?

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Philosophy of Law Fall 2009

The Rule of Law and Its Virtues – Joseph Raz

The Basic Idea

“The rule of law is a political ideal which a legal system may lack or may possess to a
greater or lesser degree. . . It is also to be insisted that the rule of law is just one of the
virtues which a legal system may possess and by which it is to be judged.”

The rule of law has two aspects:

1. People should be ruled by the law and obey the law.
2. The law should be such that people will be able to be guided by it.

What is the difference between obeying the law and merely conforming to the law?

Formal conception of the rule of law – law must be capable of guiding behaviour

Some Principles

9. All Laws Should be Prospective, Open, and Clear

10. Laws Should Be Relatively Stable

11. The Making of Particular Laws Should Be Guided by Open and Stable General Rules

What are particular laws, and why do they run counter to the idea of the rule of law?

12. The Independence of the Judiciary Must Be Guaranteed

13. The Principles of Natural Justice Must Be Observed

14. The Courts Should Have Review Powers over the Implementation of the Principles

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Philosophy of Law Fall 2009

15. The Courts Should Be Easily Accessible

16. The Discretion of the Crime-Preventing Agencies Should Not Pervert the Law

The Value of the Rule of Law

What are the values that the rule of law serves? What values does it not guarantee?

Conformity to the rule of law

The Rule of Law and Its Essence

Why does Raz reject Fuller’s claim that there is a necessary connection between law and
morality? Do you agree with Fuller or Raz?

Raz’s metaphor that the law should be like a sharp knife – the value of the rule of law

Fuller versus Raz

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