MODERN NATURAL LAW THEORY

Understanding Lon Fuller

There are two categories of passed before something ignore the procedural
natural law theory: (1) could be properly called requirements. But to
traditional natural law theory and “law”. Such test is one of Fuller, since procedural
(2) modern natural law theory. It function and procedure requirements can be
is important to note that these rather than one understood as guidelines
two categories are NOT primarily of moral and for making the legal
contradictory. Concepts are just substantive content. system more effective in
different so that it is rare to find guiding citizen behavior,
traditional notions in the modern  Eight requirements of wicked regimes would
natural law theory. law (principles of also have reasons to
legality) follow them.
Modern natural law theory
focuses more narrowly on the 1. General Caveat by Brian Bix
proper understanding of law as a 2. Promulgated
social institution or a social 3. Prospective  While following the
practice. It arose as a response to 4. Understandable principles of legality is
legal positivism and the way legal 5. Not Contradictory itself a moral good and
positivism advanced the 6. Not requiring while it may indicate a
conceptual separation of law and conduct beyond the government committed
morality (morality as not abilities of those to morally good actions,
necessary to law). affected it is probably claiming
7. Relatively constant too much for those
Lon Fuller, a modern natural law through time principles to say that
theorist, argued against a sharp 8. Congruence following them would
separation of law and morality as between the laws as guarantee a
proposed by legal positivists. He announced and as substantively just system.
believes that moral evaluation of applied.
some sort is required in  It is dangerous to focus
determining the legal validity of Criticisms and Answers on the validity of law
individual laws. based solely on
 Critics say that Fuller’s procedural
 Legal positivism’s test is merely requirements as it often
distorted view of law as procedural. However, smothers real moral,
a “one-way projection of such criticisms sociological or
authority” (the misunderstand the conceptual arguments.
sovereign commands extent to which our
and the citizens obey) perceptions of justice  It may often be
missed the need for incorporate procedural preferable to bypass
cooperation between elements. In other questions of validity in
officials and citizens for words, procedural ideals order to face directly
a legal system to work. are a part of justice. whatever further
substantive issues may
 Law is a particular  Critics argued that a be present.
means to an end, a regime could follow
particular way of procedural jose lacas
guiding and requirements and still
coordinating human enact wicked laws.
behavior. Rules must However, Fuller believes
meet certain criteria that when proper
relating to that means if procedures are followed
they are to warrant the some officials might be
title “law” and effectively less willing to act in evil
guide behavior. and corrupt ways.
 Fuller, therefore, offered
an analysis based on the  Critics claim that
“internal morality” of governments which are
law – a test that must be evil will be likely to
 LEGAL POSITIVISM
On the Pure Theory of Law
by Hans Kelsen

I. Pure Theory of Law is a theory sanction is imputed to the different objects of legal
of positive law. It is a version of delict. cognition.
legal positivism because it
considers as “law” only positive  Since legal norms make IV. A legal norm becomes
law and refuses to recognize as use of ought-statements, objectively valid if it is
law any other normative social they indicate that under authorized by the Constitution.
order – i.e. “natural law”. certain conditions, certain
consequences—the  It is a fallacy to argue that
A. Law is normative. sanctions—ought to take a legal norm is valid
place. This imputation is because it is created by an
 According to legal constituted by the legal act of will or because it is
positivism, law by its very norm as the meaning of an effective; these facts are
nature is a definite type of act of will. mere conditions for a legal
norm. As a “norm”, the law norm to become positive
is the specific meaning of II. Pure Theory of Law law, but not the reason for
an act of will directed at a separates law from other the validity of a legal norm.
definite human behavior – normative orders, especially
that men ought to behave from morals.  In order for a legal norm to
in a certain way. be objectively valid, it must
 The validity of a legal norm be authorized not merely
 Norms (“ought”) vs. is independent of its by a “positive” legal norm,
Assertions (“is”)  norms relation to a moral norm, but by a norm
are not describing, but and especially of its presupposed in our
prescribing; assertions relation to the moral norm juristic thinking  basic
describe a certain object. of justice. norm – which says that we
ought to obey the
 Law is a coercive order.  However, this does not Constitution and that legal
It tries to bring about a mean that the Pure Theory norms must conform to the
certain human behavior by of Law rejects the moral Constitution.
rules attaching to the postulate – that the Law
contrary behavior coercive should be just. Instead, it  Hence, a legal order is not
acts as sanctions. As a only refuses to recognize merely an aggregate of
condition of a sanction, the an absolute justice legal norms of the same
behavior must be “illegal”, supposed to exist according level, but a hierarchy of
or a delict. to a religious belief in the norms on the top of which
justice of God. stands the basic norm.
B. There are two conditions
for a legal norm to become III. Pure Theory of Law shows V. Summary: Law is a…
positive law: that an act performed by a
human being is interpreted as 1. coercive order (note:
1. It must be “posited” or an act of State  provided that think of sanctions &
created by man for man the acts performed by him are delicts)
(as opposed to being determined in a specific way by
established by a divine the national legal order (or a set 2. established by acts of
being or by nature) of legal norms). human beings and to a
certain extent effective
2. It must be to a certain  In other words, the State as (note: remember the 2
extent effective, which an acting person is nothing conditions of positive
means that it is obeyed else but the personification law)
and if not obeyed, of the national legal order.
sanctions are imposed. 3. which may be
 Under the traditional interpreted as a system
C. Sanction is not merely natural law theory, the of objectively valid
the actual effect of the State and its law (national legal norms
delict as its cause, but the legal order) are two
4. by virtue of its
conformity to the basic
norm (note: we ought to
obey the Constitution)

5. without regard to the

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