LL.M. (Two Years) Sem 1 Legal Theory 2024 Mar Question Paper with Solutions

For full marks, cover: the classical natural law tradition the statement compares Fuller with (Greek and Roman reason, Aquinas, Grotius and Locke, Radbruch and Finnis); Fuller and his works; five ways he differs (procedural, not substantive, through the inner morality of law and its eight requirements; secular and purposive; duty and aspiration; legality as a matter of degree; fidelity to law and the debate with Hart); what he shares with the tradition; a table; the criticism (Hart's poisoner); the Indian echoes (Harla v. State of Rajasthan, article 20(1), Shreya Singhal, Maneka Gandhi); a conclusion.

The tradition Fuller is compared with

Natural law is the view that there is a standard of right above the law made by human rulers. Human law is measured against it. For more than two thousand years that standard was a body of substantive moral truths. These were rules about what is just, which no valid law may contradict.

Fuller and his works

Lon L. Fuller (1902 to 1978) taught jurisprudence at Harvard Law School. His main works are The Law in Quest of Itself (1940), "The Case of the Speluncean Explorers" (1949), "Positivism and Fidelity to Law: A Reply to Professor Hart" (1958) and The Morality of Law (1964, revised 1969). He called himself a natural lawyer, but of a new kind.

First difference: procedural, not substantive

Fuller does not offer a list of just rules. He asks what conditions a system must meet before it can guide human conduct at all. He defined law as "the enterprise of subjecting human conduct to the governance of rules". From that purpose he derived an inner morality of law, a set of procedural requirements built into the very idea of law.

He illustrated it with the parable of King Rex, a ruler who wanted to reform his kingdom's law and failed in eight ways. From the eight failures come eight requirements, often called the desiderata of legality.

1. Generality. There must be rules, not a series of one-off orders.

The same purposive idea shapes his view of interpretation. Hart gave the example of a rule "no vehicles in the park", saying that a car is a clear case and only hard cases need choice. Fuller replied that even the core of a rule is fixed by its purpose. He asked whether a military truck mounted as a war memorial in the park would be a "vehicle". Plainly it would not, he said, because of what the rule was for.

Third difference: duty and aspiration

In The Morality of Law Fuller drew a line between two moralities. The morality of duty contains the basic rules without which an ordered society cannot exist. The morality of aspiration is the morality of excellence and of doing one's best. The inner morality of law is mainly a morality of aspiration. Only total failures of legality can be dealt with as breaches of duty. Beyond that, a legal system can only strive to be better. Classical natural lawyers did not draw this distinction.

Fuller's view. The Nazi regime had used secret laws and retrospective laws and had ignored its own rules. Its legal order had therefore lost the character of law. Fidelity to law is owed only to a system that keeps its side of the bargain with the citizen. Here Fuller differs from both positivists and classical natural lawyers. He did not ask whether the content was unjust. He asked whether the system still met the inner morality of law.

His exercise in method. "The Case of the Speluncean Explorers" (1949) imagines explorers trapped in a cave who kill and eat one of their number to survive. Five imaginary judges decide the case in five different ways. Fuller used it to show that legal reasoning cannot avoid questions of purpose and value.

What Fuller shares with the tradition

The differences should not hide the common ground. Like every natural lawyer, Fuller denied the positivist claim that law and morality are wholly separate. For him, law has a moral dimension built into it, because the inner morality of law is a morality. Like Aquinas, he held that the authority of law to command obedience depends on its meeting a standard outside the bare fact of enactment.

The criticism

First, efficiency is not morality. Hart replied that Fuller's eight principles are principles of efficacy. One could list eight principles of good poisoning, such as measuring the dose correctly, without making poisoning moral. A wicked regime can follow all eight and still do great evil.

Second, the theory is thin. Because it says nothing about content, it cannot condemn an openly published, clear and prospective law that is unjust. Critics argue that natural law loses its point if it cannot do that.

Fuller's answer. He replied that respect for the eight requirements is itself a form of respect for persons as responsible agents who can plan their lives. He also argued that evil regimes tend to break these rules, because injustice prefers secrecy and vagueness. On that view, procedure and substance are linked.

The Indian echoes

Indian constitutional law gives effect to several of Fuller's requirements.

Conclusion. The statement is correct. Fuller differs from other natural law thinkers because his natural law is procedural, secular and purposive. He tests law not by the justice of its content but by eight requirements of legality. Any system must meet them to guide conduct at all. He treats legality as a matter of degree and distinguishes the morality of duty from that of aspiration. His debate with Hart showed both the strength of this view and its limit. It explains why lawless regimes lose the claim to fidelity. But on its own it cannot condemn a clear, published and unjust law. Indian law, through Harla, article 20(1) and Shreya Singhal, shows that his requirements are working parts of a constitutional legal order.