This is an extract of our Morality In Law Laws 110 8 March document, which we sell as part of our Legal Foundations (LAWS110) Notes collection written by the top tier of University Of Canterbury, Christchurch students.
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Laws 110 8 March
Moral concepts of law
Procedural Morality (Fuller)
- Lottery (equal chance)
Substantive Morality (fairness of the outcome). Must apply for rules to be called laws,
they are illegitimate if it does not have substantive morality
- Fundamental principles
- Slavery, torture, genocide
- Human rights
There is an inherent concept of fairness, goes against the positivist idea (choice of man),
Judges rationalise their own view, they play with statutes to achieve their end
Natural law comes from logic, logically certain p or s have to be a part of the law for it to be consistent.
Fuller says fairness comes from legitimacy
Focuses on procedure, laws need to be consistent. Procedural mechanisms. Not impartial.
Procedural morality. It has to have certain procedural elements to make it law.
Court said she had a choice, she was following illegitimate laws that breached human rights.
(Fuller and Hart both agreed- strong natural law view, applied in Nuremberg Tribunals law)
See it now with views on torture, these concepts were all wrong
Modern movement towards human rights, no law can legitimise some crimes.
Rule of Law- society bound by the law
Formal Rule of Law- just procedure
Morality and the Rule of Law
Formal Rule of Law
- Fair procedures
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