Research and Describe the Connection Between Law and Morality (Term Paper Sample)

THE CONNECTION BETWEEN LAW AND MORALITY
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The Connection Between Law and Morality
Introduction
Law cannot be viewed in isolation form the social and political values of the day. Even when in most cases, law is inferred from interpreting legislation, the Constitution and Judicial decisions; the moral and political practice of the society is essential in establishing the rules that should govern people in a many spheres of life. This is a position which is strongly backed by natural law philosophers who opine that law must be concordant with moral underpinnings of a society. One of the greatest proponents of natural law is Lon L. Fuller who elaborately discussed the essence of moral law through his famous postulates of procedural morality. This paper intends to discuss why law must borrow from moral and ethical principles using Fuller’s philosophical conception of law and morality.[MDA Freeman, Lloyds Introduction to Jurisprudence (7thedn, Sweet and Maxwell 2001) p 26.]
Background Information
There are two main theoretical frameworks within which law is characterized. First, there is Natural Law, and then legal positivism. Natural law implies that law’s normative power stems from a number of axiomatic principles which are innate in human nature. As such, law is generally informed by religious principles; morality and other conventional norms. On the other hand, legal positivism stipulates that a law is only valid if there is an authority behind it. According to Jeremy Bentham’s conception, there must be a threat backed by a sanction in case of non-compliance. Without such enforcement authority, then words remain statements and not law. Aside from these two main theories, there are many other theories like sociological jurisprudence, legal realism and pure theory of law. The conception of legal positivists also implies that the only rules that can be considered as law are those which have been posited by an authority; those which are written in black and white within legal documents. Any rules which are not sanctioned by an authority cannot be regarded to have any normative force within the society. The position that law should only be drawn from that which is written by the authorities has however come under strong opposition. According to Cotterrell, the law must always be apprehensive of the happenings in the society. In addition to this, Judges are always faced with cases which do not have a precise answer in the law. Therefore morality and politics should be invoked to fill in the grey areas.[Patrick Lee, “Human Nature and Moral Goodness” in Mark Cherry, ed., The Normativity of the Natural (New York: Springer, 2009) p 45.] [Hart, H. L. A., “Review of The Morality of Law”, Harvard Law Review,Vol. 78, (1965), pp. 1281-1296: pp. 1295-1296.] [Hart, H. L. A., “Positivism and the Separation of Law and Morals ”, 71 Harvard Law Review 593-629 (1958); reprinted in Joel Feinberg and Hyman Gross ed., Philosophy of Law, Fourth Edition, (Belmont, California: Wadsworth Publishing Company, 1991; [1975]): pp. 63-81).] [Cotterrell, Roger, The politics of jurisprudence: a critical introduction to legal philosophy 2nd ed, (Philadelphia: University of Pennsylvania Press, 2003) p 146.]
Fuller’s Conception of Law and Morality
Lon Fuller was an American Jurist who devoted most of his scholarly life establishing the relationship between law and morality. Much as his arguments are often associated with natural law, Fuller did not conform to the conventional natural law approach that holds that all unjust law is not law at all. He never explicitly subscribe to this position. Natural lawyers generally assert that there are certain objective moral principles which exist according to the nature of the universe and can be discovered by reason. In this case a proper legal system cannot exist if it is not guided by any religious or moral fabric. Fuller advances this argument by distinguishing these natural rules from the general practice that is adapted by people who are aware of their needs in the society in a bid to further their welfare. Both of these forms of rules essentially guide day to day human activity even though they are not sanctioned by the authority.[Ladwig, B.. "Global justice, cosmopolitanism and moral path dependency", (Philosophy & Social Criticism, 2013) p 8.] [L Fuller, ‘Human Purpose and Natural Law’, Journal of Philosophy, (1956) Vol.53, No.22, 697-705.]
In his theory, Fuller stipulates that there is external and internal morality of law. According to him, while external morality entails the fairness and justness of law and its impact to the society; internal morality is an order of law which is contained in procedural natural law. His specific focus was on the inner morality of law whereby he enlisted eight principles which a law should satisfy for it to meet the threshold of having internal morality. First, the laws must contain a set of ongoing rules governing human conduct which are expressed in terms generally known to the people. Secondly, the rules must be of progressive effect and not retrospective in application. Thirdly, the laws must be publicly promulgated so as to notify people of the obligations and duties imposed on them by the laws in question. Also, the laws must be intelligible, explicit and expressed in a manner that is easily understandable by the persons subject to them without any ambiguity. The fifth rule is that the laws should be consistent at all times with other existing laws and not contradict each other. In addition to this, the rules must be crafted in a way that makes it possible for the people to obey them. In this case, the laws must make realistic demands to the people. The seventh rule is that once a law has been enacted, it must remain as constant as possible so that the people can easily predict how their actions can be sanctioned unlike if the laws governing a concept are changed so often. Finally, the administration and enforcement of the said rules must be always consistent.[L Fuller, The Morality of Law, Revised Edition (Yale University Press, 1969) p 97.] [B Macleod-Cullinane, (1995) ‘Lon L. Fuller and the Enterprise of Law’, Legal Notes 1995) No:22.]
The Nexus between Fuller’s Postulates and Contemporary legal systems
Natural lawyers argue that since the law draws from nature, it is universal and cannot be changed because it is an edict of God. The implication of this statement is that even if the authorities or government of the day does not recognize natural law; it still exists because these principles are innate and are shared by the whole society. Therefore governments should endeavor to incorporate these principles into law and enforce them so as to achieve justice. From this background, this theory further asserts that anything that does not comply with standards of natural law is bad law and ought not be enforced. The question of whether a law can be classified as good law and worth applicability can only be answered through judicial interpretation. Lon Fuller explained this concept through his hypothetical scenario of the Spelucean Explorer’s Case. In this case, he establishes that Courts are often faced with hard decisions to make in situations where a strict application of written law would result in outright injustices. From this background, it is imperative that a more objective source of law is invoked so as to fill in the gaps or rectify holes in posited law. That is where morality comes in.[L Fuller, The Morality of Law, Revised Edition (Yale University Press, 1969) p 138.] [Fuller, Lon L., “The Case of the Speluncean Explorers”, Harvard Law Review, Vol. 62, (1949): pp. 616-645; reprinted in Feinberg and Gross, Philosophy of Law, pp. 530-545.]
The legal regime in Australia borrows heavily from common law principles which have been in effect for a very long period. These rules are often framed in very general terms which leave a great discretion for the Judge to ascertain the threshold of applicability. For instance, the renowned standard of a reasonable man is an arbitrary impression which has to be determined by a judge according to the perception he has created over a certain matter. On top of this, it is also noteworthy that Constitutions of most legal systems are expressed in general terms so as to allow for a much more expansive interpretation of these documents. This notwithstanding, in many jurisdictions, specific statutes contain provisions which are straight forward in their wording in order to avoid any ambiguity. This is clearly concordant with Fuller’s position that laws should not be expressed in general terms.[Holmes, Oliver Wendell, The Common Law. (Hamburg: tradition, 2013) p 37.] [Kommers, Donald P., John E. Finn, and Gary J. Jacobsohn, American constitutional law: essays, cases, and comparative notes (Lanham: Rowman & Littlefield, 2004) p 149.]
One feature that is notable with Fuller’s postulate is that he did not arrange the eight rules following any order of precedence. Instead, he mooted for an informed balancing process that can lead to all the rules to be applied in equal measure. The problem with this is that in many cases, enforcing all these rules may be impossible because some are likely to conflict with each other. In this case, a lawmaker is entitled to employ discretionary powers with a view of subordinating some of the rules so as to achieve a greater societal goal. It is important that such discretion is arrived at after the lawmaker has examined all the eight rules and ...