NEO has expressed an interest in my views and knowledge of law. I have written somewhat about law at AATW, and readers are encouraged to read the posts in the archives there.
Today, I would like to share the introduction of a short essay on law that I wrote over the course a few days during the summer of 2019 as part of a job application.
Fuller’s internal morality of law defines true law by a set of necessary moral conditions (Fuller, 1969, 33-38). Purported rules and commands that fail to comply with the set of conditions are not law. In addition to providing this set of conditions and claiming that they are moral conditions, Fuller allowed that there are degrees of compliance. He posited a notional ideal for each of these conditions. The closer a legal system comes in practice to meeting this ideal, the more moral it is relative to systems that have a lesser (or no) degree of compliance.
This theory of law has been criticised on two grounds. First, it denies the central thesis of legal positivism: namely, that law and morality are separable (Blackburn, 2016, 370-371). In other words, morality is not a necessary condition for law and law is not a necessary condition for morality. Second, in attempting to demonstrate what is good about law, Fuller has given an incomplete analysis of law’s goodness (Hart, 1983, 347).
This essay will address each of these two criticisms. The author will argue that legal systems presuppose morality, concurring with Fuller against legal positivism. However, the author will defend the second criticism, that Fuller’s account is incomplete, by offering further reasons as to why law is good.
Regarding methodology, this essay will assume that logic is objective and universally binding. Moral and other kinds of relativism are incoherent: such systems cannot be persuasive, since persuasion presupposes a common ground between interlocutors. Since academic argument seeks to persuade, any discourse that denies objectivity cannot be a true academic argument. This essay will consider the structure of concepts (a priori knowledge of analytic propositions). Where such analysis shows that a concept or position is incoherent, the concept in question may be abandoned in its current form.