With the necessary background music, the scene could be set for the hero to save the day. Fortunately — or unfortunately — the judgments of the Constitutional Court in Masethla are less romantic than a Bond story, but they are no less dramatic. For constitutional lawyers, the judgments' specific pronouncements regarding the scope of the rule of law as a foundational constitutional concept are of great importance. The majority of the Court interpreted the rule of law narrowly, while the minority opted for a more inclusive interpretation incorporating procedural fairness as a constraint on the exercise of public power.
Like most legal academics of his day, Fuller rejected traditional religious forms of natural law theory, which view human law as rooted in a rationally knowable and universally binding "higher law" that derives from God.
I would like to ask the reader whether he can actually share Professor Hart's indignation that, in the perplexities of the postwar re-construction, the German courts saw fit to declare this thing not a law. Can it be argued seriously that it would have been more beseeming to the judicial process if the postwar courts had undertaken a study of "the interpretative principles" in force during Hitler's rule and had then solemnly applied those "principles" to ascertain the meaning of this statute?
On the other hand, would the courts really have been showing respect for Nazi law if they had construed the Nazi statutes by their own, quite different, standards of interpretation? By the simple dodge of saying, "When a statute is sufficiently evil it ceases to be law," they ran away from the problem they should have faced.
This criticism is, I believe, without justification. So far as the courts are concerned, matters certainly would not have been helped if, instead of saying, "This is not law," they had said, "This is law but it is so evil we will refuse to apply it.
When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality - when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.
According to Fuller, certain moral standards, which he calls "principles of legality," are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a minimal morality of fairness.
Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them.
According to Fuller, all purported legal rules must meet eight minimal conditions in order to count as genuine laws.
The rules must be 1 sufficiently general, 2 publicly promulgated, 3 prospective i.
Fuller presents these issues in The Morality of Law with an entertaining story about an imaginary king named Rex who attempts to rule but finds he is unable to do so in any meaningful way when any of these conditions are not met.
Fuller contends that the purpose of law is to subject "human conduct to the governance of rules".
The more closely a system is able to adhere to them, the nearer it will be to the rule-of-law ideal, though in reality all systems must make compromises and will fall short of perfect ideals of clarity, consistency, stability, and so forth. In a review of The Morality of Law, Hart criticises Fuller's work, saying that these principles are merely ones of means-ends efficiency; it is inappropriate, he says, to call them a morality.
Other critics have challenged Fuller's claim that there is a prima facie obligation to obey all laws. Some laws, it is claimed, are so unjust and oppressive that there is not even a presumptive moral duty to obey them.Philosophy of Law.
Philosophy of law (or legal philosophy) is concerned with providing a general philosophical analysis of law and legal institutions. This book is concerned with the nature of law and its relation to morality, concentrating on the proper moral attitude of a citizen towards the law of his country.
The author begins by presenting a new analysis of the concept of legitimate authority and then gives a detailed explanation of 4/5(2). Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority.
He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument for legal caninariojana.coms: 1. Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature.
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