Natural Law and Rights.pptx

1. Mohammad Mamunur Rashid

2.  Debate primarily concerned with (1) the
problem of immoral laws and (2) the question
of legal interpretation.
 Ultimately, the debate at its core is about the
separability of law and morality. Positivists
such as Hart argue the law is separate from
morality, whereas Fuller argues morality is
from where law derives its binding power.

3. • Hart argues one can determine the existence of a legal system
without reference to morality. He uses the example of Nazi
Germany (Nazi Germany is the common English name for the
period in German history from 1933 to 1945, when Germany was
governed by a dictatorship under the control of Adolf Hitler and
the Nazi Party (NSDAP). Under Hitler's rule, Germany was
transformed into a totalitarian state in which the Nazi Party
controlled nearly all aspects of life. The period is also known
under the names the The Nazi regime came to an end after the
Allied Powers defeated Germany in May 1945, ending World War II
in Europe.) to conclude that immoral legal systems are still legal
systems; whether one obeys the law is a separate issue and a
moral question. The existence of a legal system is dependent on
whether the legal system has secondary rules. It is a social
enquiry based on observable facts not a moral evaluation.

4.  In Fuller’s view, the legal system has an
intrinsic purpose to subject human conduct
to the governance of rules. Thus, the law
possesses an internal morality which will pull
legal decisions towards moral “goodness.”
This is seen as a form of procedural morality
within the law.

5. • Fuller distinguishes such systems from ‘perverted
regimes’ such as Nazi Germany.
• He argues a legal system will fail to be law if;
(a) There are only adhoc decisions, the rules are
secret, rules are retrospective, rules are
incomprehensible, rules are contradictions, rules
require conduct beyond the capacity of the subject,
and rules frequently change, lack of convergence
between adjudication/legislation/administration.
(b) Fuller concluded that governance through law,
meaning general rules that satisfy the principles of
legality, is more likely to produce a good order.

6. Hart argues that legal interpretation involves the
discerning of meaning of language. Legal
uncertainty arises due to the open texture of
language, when words are capable of multiple
meanings. Therefore, language has a core of
settled meaning (where legal interpretation is a
mechanical exercise)and a penumbra of
uncertainty(where legal ambiguity arises);
o In cases where the meaning of words is determinate, it is
the judge’s role to simply apply the law.
o If the meaning of words is uncertain, it is the judge’s
role to administer and develop the law.

7. • Fuller argued the law is intrinsically purposive and
therefore value laden and moral.
(a) Therefore, legal interpretation is a purposive
exercise of statutory interpretation. The judge
does not go beyond law but looks at the intrinsic
purpose of the law itself.
(b) Fuller argued there was no distinction between
legal and non-legal arguments because the
criteria are too complex and are often moral.
(c) The judge, therefore, is a decision-finder, not
necessarily a decision-maker. (This links Fuller to
the natural law tradition and to Dworkin’s anti-
positivism.)

8. (1) Neither scholar answers the preliminary questions to the
debate such as offering a definition of morality and law and
whose morality is being discussed. They engage as if they
both assume a common ground of what morality is and
what it constitutes.
(2) Hart assumes an effective legal system is a liberal legal
system; one which prescribes to a particular minimum of
moral content concerning free and critical debate. Fuller
takes a similar position on Western legal systems, however
argues this point in a different way.
(3) It is unclear whose moral purpose Hart refers to in his
theory of adjudication. Underlying his theory is an
assumption that legislation always has a uniform purpose.

9. Dworkin follows from Fuller’s argument and concludes that the
role of adjudication in hard cases is to find the best
justification in principles of political morality.
– The judge must attempt to fit the decision to the data it interprets in
its best light in the sense that it comes as close to the correct
ideals of a just legal system as possible.
• This explains how judges may reach different conclusions; each judge might
have a different interpretation of what constitutes best fit or more precisely
because they bring differing background theories of political morality to
their interpretations.
– This does not allow judges to make decisions solely based on their
own personal moral convictions. Judges are constrained by the past
and decisions should be made consistently with principle so that the
law is coherent
• Naturalism recognizes that communities have political orders.
People in a society have political rights by virtue of the political
history which constitutes this political order. At its core,
naturalism is a theory about judicial rights.

10. • Dworkin’s theory of natural law breaks down Hart’s distinctions between
legal and moral obligations. In Dworkin’s theory, moral obligations
(political morality) may have legal content.
– However, Dworkin also does not define what kind of morality he is writing about. His
theory functions more apply in the context of the US with a constitutional bill of
rights and strong judicial review, however it is not so effective in other societies.
• In Australia, Dworkin’s theory could include legislative presumptions and fundamental
rights implied in the constitution.
– Natural law theory has been criticized as undemocratic as it allows the judge to
override the legislature, the domain of politics. However, these criticism conflate
theories about judicial rights with arguments for strong judicial review whilst
ignoring the reality that these issues only arise when parliament’s intentions are
ambiguous. There are certain legislative presumptions concerning rights recognized
in the common law which seek to give effect to parliament’s intentions in a positive
way, rather than invalidate otherwise valid legislation.
• However, there are dangers inherent in a morally charged view of the common law as
this could lead to excessive activism Thus, judges are constrained by rules and
precedent.
• In the majority of cases the legal rules are determinate. These theories are theories of
appellate decision making.

11. • Llewellyn and Adjudication
• Legal Realists such as Llewellyn view the law
as being rationally indeterminate Rules on
their own do not determine the outcome but
rules constrain the range of outcomes
available.
• Within these constrains multiple ‘correct’
conclusions are available, although some are
more probable than others. These
conclusions represent differing ways of
applying precedent to the given facts.

12. • Llewellyn therefore asks which correct decisions will
judges select and why?
– This will depend on
• (1) the current tradition of the court, (2) the current
temper of the court
• and (3) the sense of the situation as the court sees that
sense.

13. – Llewellyn argues the third of these criteria is the
most influential.
• In six out of 10 appellate cases the court applies
precedent automatically. Difficult cases arise where the
sense of the situation is unclear and these precedents
do not line up clearly.

14.  Technical leeways correctly available when the sense of the
situation call for their use are only available when the
sense of the situation and the facts call for their use cease
to be available unless used in furtherance of what the
court sees as such sense. Motive then becomes a factor in
determining what techniques are correct e.g. a sense of
conscience, judicial responsibility or uprightness. The
greater the felt need, because of felt sense, the wider is
the leeway correctly and properly available in reshaping an
authority.The kinds of sense that judges might feel need
to be distinguished;