Law (1)

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.

Introduction

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.

14 thoughts on “Law (1)

  1. “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).

    How true, and how little appreciated these days. Good start, Nicholas.

    Liked by 1 person

      1. Nicholas

        I had to churn that out in hurry because I had a deadline – it was for a freelance academic writing job. In the end I turned it down because I got a job at the firm I had applied to. I’m not far from the end of my probation period now, so hopefully, it will be permanent.

        Liked by 1 person

    1. What is interesting is that when I write I generally lay out the evidence from as many sides as possible, but I believe in absolute truth instead of relativism. In my experience, people in today’s academic world simply hide other viewpoints to persuade. In my opinion, when all the options are presented that’s enough to persuade.

      Liked by 2 people

      1. Nicholas

        I like to be presented with all the evidence and be left to draw my conclusions. Academics who hide things have breached the unwritten code of their profession.

        Liked by 1 person

      2. I try to stress to the kids in my Catechism class we have to define what is meant by goodness because in passing that can be anything in conversation. Goodness must be related to telos and perfection. If not, then many things can be explained as good.

        Liked by 2 people

      3. Error has not rights . . .

        “The theory of religious tolerance takes its start from the statement, considered to be axiomatic, that error has no rights, that only the truth has rights—and exclusive rights. From this axiom a juridical theory is deduced, which distinguishes between “thesis” and “hypothesis.” The thesis asserts that Catholicism, per se and in principle, should be established as the one “religion of the state,” since it is the one true religion. Given the institution of establishment, it follows by logical and juridical consequence that no other religion, per se and in principle, can be allowed public existence or action within the state (which normally, in this theory, is considered to be identical and co-extensive with society). Error has no rights. Therefore error is to be suppressed whenever and wherever possible; intolerance is the rule. Error, however, may be tolerated when tolerance is necessary by reason of circumstances, that is, when intolerance is impossible; tolerance remains the exception. Tolerance therefore is “hypothesis,” a concession to a factual situation, a lesser evil.” __ excerpt from this article: https://www.library.georgetown.edu/woodstock/murray/1965ib

        Do you believe that this is true as taught by Tertullian, Leo XIII and Pius IX?

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      4. Error has no rights, but people do have rights.

        So, on the one hand in traditional Catholicism other faiths were tolerated in history of Christendom. I wouldn’t say they suppressed but they were not codified in law, and not openly celebrated like they have been since “dignitatis humanae.” So, an example, a Muslim or Jew could be a Muslim or Jew at home, but they wouldn’t have been able to build a mosque or a synagogue in the town square. Now, we have Pope Francis supporting the building of the temple of 3 Abraham religions. It’s a blurring of all three religions and religious indifference—those religions shouldn’t be going along with it either. The idea is secularism, it isn’t Catholic, Jewish, or Muslim—it’s something else.

        Liked by 2 people

      5. True . . . but in the law are we not now destroying the fabric of civilization by our “broad mindedness” as Fulton Sheen claimed? Look beyond simple Religious Freedom to what tolerance has led to in our day: abortion, same sex marriage and gender theory etc. This whole slide has now become an avalanche.

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      6. Nicholas

        And that way leads to trouble, I’m sure. Perhaps that will end up being part of the Great Apostasy – only time will tell.

        Like

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