Lon Fuller Rule of Law

At the same time, there is concern about the mentality fostered by the excessive emphasis on the rule of law. In its most extreme form, the rule of law can lead to the shutdown of the capacity for independent moral thought in civil servants (judges, for example: see cover 1975) or in ordinary members of a community, making them anxious and suspicious of their own individual judgments or those of others in the face of uncertainty (cf. Henderson 1990). Sometimes it is important, in the name of clear and courageous moral judgment, not to exaggerate the importance of something required by law. Other concerns about the rule of law mentality include legalism and the tendency to over-formalize or bureaucratize healthier relationships in more informal terms. It is not just a question of legalizing the personal sphere; It also means, for example, understanding the damage that can be done to relationships between public servants (such as social workers) and vulnerable clients by replacing rigid rules to replace relatively informal professional standards (Simon 1983). (1) Wartime governance necessarily required the full mobilization and management of all the work and resources of society. Hayek warned in 1944 against maintaining this type of administration in peacetime. He eloquently argued that in normal times, a society does not need to be managed, but should be governed – and its inhabitants should be largely left to fend for themselves – within a framework of general rules established in advance. These rules would appear impersonal to protect people from each other, as they would not target any particular person or situation, and their operation would not depend on the government`s expectations of the particular effects of their application. However, this lack of specific knowledge on the part of the government would be offset by the fact that the rules would provide a framework of predictability for ordinary people and businesses.

They know that they are not harassed by the state, as long as they act within the framework of general and impersonal rules. Human freedom, according to Hayek, did not exclude all state action; But this requires that the government`s action be calculable. During. The logical force of Professor Raz`s assertion that I would reject it categorically in favour of a “thick” definition that includes human rights protection within its scope can be seen. A State that brutally oppresses or persecutes parts of its population cannot, in my view, be considered governed by the rule of law, even if the transportation of the persecuted minority to a concentration camp or the forced exposure of female children on the mountainside is the subject of detailed laws duly promulgated and scrupulously observed. (Bingham 2010: 67) as a stubborn and stupid person who refuses to allow any deviation or questioning of his own rules, even if the situation has actually changed and it turns out to be better for someone to violate those rules. (statesman 294b-c) Fuller presents these themes in The Morality of Law with an entertaining story about an imaginary king named Rex who tries to rule but finds that he is unable to do so in a meaningful way if any of these conditions are not met. Fuller asserts that the purpose of the law is to “subject human behavior to the governance of rules.” [6] If one of the eight principles is manifestly absent from a system of government, the system will not be legal. The more a system is able to adhere to it, the closer it comes to the ideal of the rule of law, when in reality all systems have to compromise and fail to achieve the perfect ideals of clarity, consistency, stability, etc. My action can hardly be considered subject to the will of another person if I use his rules for my own purposes, how I could use my knowledge of a natural law, and if that person is not informed of my existence or of the particular circumstances in which the rules apply to me, or the effect they will have on my plans. White. (Hayek 1960:152) According to Fuller, all so-called legal rules must meet eight minimum requirements to be considered true laws.

The rules must (1) be sufficiently general, (2) publicly pronounced, (3) forward-looking (i.e. applicable only to future conduct, not past conduct), (4) at least minimally clear and understandable, (5) free from contradictions, (6) relatively constant so that they do not constantly change from day to day, (7) possible to follow, and (8) applied in a manner that does not deviate significantly from their obvious or obvious meaning. [5] These are Fuller`s “principles of legality.” Together, they ensure that all laws embody certain moral standards of respect, fairness and predictability, which are important aspects of the rule of law.