Legal Process scholar reacting

Fuller, professor of Jurisprudence at Harvard, was one of the thinkers responsible for the revival of natural law thinking in the mid-20th century. Note (in very small type) the date (1969) of his book. Modern natural law theorists (other than those explicitly within the traditions of Roman Catholic moral philosophy) are secular in their outlook. They thus differ from classical natural law thinking in not supporting their theories with a grand metaphysics, as does St. Thomas. They have no special views about the purpose of life, the role of nature, the sources of human wisdom etc.

Even the terminology 'natural law' or what we have called 'principles of natural justice' may seem to them to carry too much theological baggage. They do believe however in what they tend to call 'moral principles. ' Fuller calls his principles 'procedural' rather than substantive. He also calls the morality that's required for law, 'internal morality. ' Substantive principles, such as the several principles of justice we've mentioned, describe what is right and what is wrong. They tell us how to regulate our conduct, i. e. , whether polygamy is wrong. Procedural principles give criteria for forming substantive moral principles into law.

Fuller's view is that natural justice enters the law at the procedural level. There are certain procedural principles which are necessary for anything to be a law in the first place. These principles make the law procedurally just, even if not substantively just. King Rex is a take-off on Austin's sovereign, who imagines (as Austin's theory says) that he can make law by issuing commands. He issues commands, but fails to make law. Why doe she fail? Becausethe 'laws' he commands do not accord with the eight procedural criteria required for something to be a law.

The point is not only that Rex's laws are unfair (which they are, or worse), but that they are not even laws. Thus Fuller's point is that procedural unfairness makes law impossible, so that procedurally unfair law is not law. Fuller has been criticized for overlooking that even laws which adhere to the inner morality, may be unjust. Is this a legitimate criticism of his theory? "The morality of duty 'may be compared to the rules of grammar;' the morality of aspiration 'to the rules which [sic] critics lay down for the attainment of what is sublime and elegant in composition. '"

Lon Fuller, quoting Adam Smith, arguable violation of the which-that distinction included. Length: 2000-2500 words. Please double-space and use ordinary margins and font sizes. Papers due at my office, Pick 521, before class on Tuesday, May 9. Stumbling into class ten minutes late with the paper in hand does not constitute turning it in on time. In the absence of officially-documented sickness or family emergency, late papers will be docked 2/3 of a grade per day or part of a day, beginning at 1:30 pm on May 9. It would be wise to allow for possibilities like printer or computer difficulties in budgeting your time.

I will not have office hours next week (April 27), but I will hold office hours twice the following week? 10 am to noon Tuesday May 2 as well as Thursday May 4. You're encouraged to discuss papers with me. I cannot read drafts, but will read introductory paragraphs or outlines– no more than 200-300 words. You may choose one of the following topics for your paper, or you may choose another topic in consultation with me. Your argument should be bolstered with specific references to the text. 1. How should the problem of the grudge informer be resolved, and how should the legal problem be understood?

2. Hart says of Fuller's 'inner morality of law' that "it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. " Do you agree with this line of criticism or not, and why? 3. Hart argues that a system of law is fundamentally a matter of rules. Dworkin disagrees; in very different ways, so do Austin and the realists. Discuss and evaluate either Dworkin's, the realist, or the classical positivist criticism of the model of rules, paying attention to how Hart does or could respond. 4.

Dworkin and Blackstone argue that judicial decisionmaking helps to reveal the moral core of the law. The realists and the classical positivists, in different ways, disagree. Discuss and evaluate one of those lines of disagreement. Some guidelines for writing papers 1. Understand and abide by the rules for citations. You must put any words that are not your own into quotation marks and clearly identify their source in a footnote. Failure to do so constitutes plagiarism. When you paraphrase someone else's words or use an idea or interpretation that is not your own, you must also identify the source.

Of course, turning in someone else's work as your own, or turning in a paper for which you have already received credit in another class, is prohibited. NB: I do monitor online sources of term papers. Moreover, the papers available on such sites are almost always far below the standards of quality expected of U of C students. 2. You must seriously consider serious objections to your argument. For example, if you are criticizing an author, you must construct and respond to a strong defense of the author, and if you are defending, you must construct and respond to a strong criticism.

Attacking straw men is bad, and a complete lack of attention to possible counterarguments is worse. If you cannot imagine serious counterarguments to your thesis, then your thesis is probably trivial (or your imagination is too constrained). Do not underestimate the importance of this. A paper that considers no counterarguments or only very weak ones is not a persuasive or successful paper. 3. Meeting #2 requires taking a clear position on the question you are addressing. "This paper will explore the issues related to" is not a thesis (and, obviously, doesn't allow for any interesting counterargument).  

Logic counts. 5. Spelling counts. Running a spell-check is the beginning, not the end, of finding spelling errors. 6. Grammar and correct usage count. Using the grammar-check in Microsoft Word is not recommended as a method of finding grammatical errors. Fowler's Modern English Usage, Strunk and White's The Elements of Style, and Shertzer's The Elements of Grammar are much more reliable guides. If you own none of these, you should invest in one or more as soon as possible. 7. Style counts, but see #8. 8. Most of what they taught you in high school composition remains true. Outlining before you start writing is useful.

A thesis paragraph at the beginning of the paper, thesis statements at the beginnings of many paragraphs, and periodic signposts about what has been proven so far and what remains to be proven, help keep a paper clear. It is true that overdoing this kind of thing can make essays seem mechanical and unlovely; but it is better to err on the side of a clear unloveliness than to err on the side of stylish confusion. As with grammatical rules, you should know the rules of composition and be able to use them easily before you decide that their violation is warranted in this or that case for stylistic reasons.

So, for example, one sometimes has good reason to use the passive voice. Unless one understands the problems with the passive voice, however, one can't distinguish the rare appropriate uses from the many sloppy ones. 9. A metaphor is not an argument. A list is not an argument. Even an analogy, by itself, is not an argument. 10. One argument can refute, undermine, or override another. Refutation: "This is wrong. The evidence otherwise, the causality runs the other way, there is no logical link here…

" Undermining: "This may be correct, but look where else it gets us in the long term, or what other consequences the argument has that proponents didn't notice, or what obviously ridiculous cases the argument actually has to cover on its own terms, or… " Overriding: "This may be correct, but this other issue is more important, because it is more urgent, because there is some logical or moral ranking of principles, because justice is more important than utility… " If your argument overrides another, you normally have to give reasons why x is more important than y, not simply assert it.