Over centuries, thinkers have espoused many different views about what constitutes a valid legal system. The definition of a valid legal system is constantly developing and changing. For years, philosophers argued the ideas behind different legal theories, attempting to put into writing the concept of laws and legal validity. The following will elaborate on what a valid legal system is. I believe in the theories behind natural law, specifically that law and morality are intertwined. As G.E.M. Anscombe describes, “[t]his idea of natural moral law is one which modern men have lost; but without it they cannot live in peace within themselves, or socially or internationally.” In this essay, I take an approach quite similar to naturalist thinkers on what constitutes a valid legal system. As I consider my views on valid legal systems, laws, and morality, I find myself in agreement with a majority of the observations of Lon Fuller and Ronald Dworkin.
What is a valid legal system? A valid legal system ties together laws and morality, and consists of both rules and principles. It changes to address changing societies. It works to benefit humans, not harm them. A valid legal system should be easily amendable, critiqued not only by the highest authority but by judges as well and should follow a series of mandatory requirements. Every individual has their own morals and beliefs. Every society has their own social rights and norms. Valid laws reflect both of these aspects. St. Augustine wrote “lex iniusta non est lex”, translated means “unjust law is no law at all”. For example, if lawmakers supported the legalizing of domestic violence, those who created the law can easily say it is binding. However, if it is so unjust that it causes a moral uproar, is it really a valid law? Absolutely not. How could something so obviously unsupportable even be considered as law? Who would think to come up with such a rule? It should be impossible for laws that are so extremely unjust to be laws at all. To create a valid legal system, more than one person should have decision making authority, otherwise abuses of power are inevitable. Law, through exercise of the courts, establishes principles which develop and change over time as society’s morals beliefs and ideals change.
Lon Fuller is one philosopher whose work I find intriguing and in concert with my views. He accepts the concept of law and morality both being necessary for a legal system to be valid. Although Fuller uses internal morality in his works to determine necessary traits for a law to be valid, he fails to consider external morality. The purpose of external morality is to establish the beneficial aspect of law; the point in which laws should work to improve a society. In order to have a truly valid legal system which considers not only the law but also morality, you have to look for the betterment of society. In order to better society, you need both internal and external morality; the two must be linked. This is one difference when Fuller’s theory is compared to other theorists. One may argue that law and morality are completely separate. An illustrative example would be the findings of HLA Hart, who would attempt to argue that law is simply a system of rules. Law and morality are separate; laws are morally deficient; and, that unjust laws are still laws. Both Fuller and I completely disagree with Hart’s disposition, as it is impossible to separate laws from morality. One arises from the other.
Human rights are another important aspect that must be incorporated in a valid legal system. Legislation that recognizes and protects basic human rights, such as the Human Rights Act 1998, is necessary in a modern civilized society. Many philosophers fail to address these rights. Some may argue that they have little value in a legal system; however, I believe these rights are integral to shaping the legal system as a whole. Without consideration to human rights and morality, it will be impossible to shape and develop laws that address changing societal values. It is impossible to create a valid legal system without consideration for what is morally right and wrong, and any impact to basic human rights.
The 8 desiderata are the foundation upon which Fuller believes to be a valid legal system and are very well formed. I agree with the majority Fuller’s theory. As the 8 requirements state, a valid legal system must have rules that are published, put into perspective, understandable, non-contradictory, easily complied with, stable, and followed by officials. These 8 desiderata are easy to understand, and Fuller believes that if one is missing, it is possible that a legal system does not exist at all.
However, the 8 desiderata lack one very crucial element; the need for morality. A valid legal system combines both law and morality; therefore, they should benefit society. Lon Fuller fails to include this important component to a valid legal system. In my opinion, these 8 desiderata give very vague guidelines for what a valid legal system should be. Applying these requirements, one could argue a legal system such as existed in Nazi Germany is considered valid. How can something so brutal, immoral, and opposed by millions be considered a valid legal system? Millions of people were killed during what is known as the Holocaust, a horrifying event taking place during the Nazi regime; many solely because of their morals and beliefs. If we cannot tie morality into law, how is it possible to have a valid legal system? Fuller criticizes Hart for his belief in a system as such, and I agree with Fuller’s view on the Nazi Regime. How is it possible to create law to govern a society that does not agree with that society’s beliefs? It is impossible.
I do agree with Lon Fuller on the concept of the 8 desiderata, a legal system should follow a list of basic requirements in order to be considered valid; however, Fuller’s failure to include morality is a significant omission.
Much like Fuller and other philosophers, such as John Finnis, I do believe there are certain criteria to be met in order to have a valid legal system. Without a list of criteria, one individual can claim any system of laws to be valid. The following are the requirements that I believe are truly necessary in order to constitute a valid legal system: (1) published rules, (2) easily understood, (3) non-contradictory, (4) followed by authority, (5) beneficial to individuals and society, (6) flexible, and (7) follows human rights. In agreement with Fuller, a valid legal system should have published rules, that are understandable and do not contradict each other, and are followed by officials. These basic requirements are crucial. They ensure that individuals within a society are aware of the laws and know they are meant to follow them. This is the stricter aspect of a valid legal system. Next are the rules created to benefit humans and society. These rules have flexibility and can be developed over time. This is where morality is added to the requirement for a valid legal system. Without this flexibility, without this sense of justice and fairness to further the law, a valid legal system simply does not exist. Again, recognition of human rights is crucial in establishing a valid legal system. Without this, heinous crimes such as murder and genocide could be legal. It is impossible to create such laws and maintain justice and fairness in a society. Ultimately, these principles must be addressed in order to maintain a system of valid laws.
Another thinker whose findings intrigue me are those of Ronald Dworkin. From the beginning, Dworkin is considered to be a positivist. For the most part, I choose not to associate myself with such philosophers; however, his critique of legal positivism and his turn towards natural law leads me to agree with his interpretations on laws and a valid legal system.
One key aspect of Dworkin’s work that I believe is critical in a valid legal system is distinguishing between rules and principles. A valid legal system consists of both. Rules are the basis of the legal system, stating strictly what one can and cannot do. As Shapiro writes in regards to Dworkin’s “Model of Rules I”, “[w]hen a valid rule applies in a given case, it is conclusive or, as a lawyer would say, “dispositive.” Since valid rules are conclusive reasons for action, they cannot conflict. If two rules conflict, then one of them cannot be a valid rule.” Principles, on the contrary, assist in interpreting rules, and help significantly when rules cannot solve the issue at hand. They aid in supporting different judicial actions. The use of principles aids in further incorporating morality into the legal system. Legal positivism, in particular HLA Hart, states that a legal system solely consists of rules. I disagree. Principles are more easily amended; they can be established by courts; they are key to change and development in a legal system. According to Dworkin, principles are considerations and can conflict with one another, unlike rules that are set in stone and written to balance one another. I agree that principles can conflict. Allowing principles to conflict allows the law to develop as society progresses. This is crucial in a valid legal system. In an attempt to argue against the importance of judges establishing principles, one could say that the power to create and amend any form of law should solely be delegated to an authority elected by the public. Many, in particular legal positivists, believe that this authority was originally granted to Parliament in the United Kingdom and others should not hold such a high discretion of authority. This is wrong. Court decisions are crucial to the development of law and thus the legal system. If courts refuse to exercise their discretion, leaving all to Parliament, timely changes may be forthcoming. A failure by the Court to act can mean the difference between life and death. For example, what if delay by Parliament allows someone to get away with committing a horrible crime against humanity? By not allowing judges the discretion to decide new principles, there is potential to create more harm.
A prime example of how establishing principles is important is the case of Riggs v Palmer. This case proves that in order to establish new principles, in order to maintain morality within the law, judges need the authority to make certain decisions that might attract controversy. I believe the ability of the Judiciary to make such judgements is absolutely crucial to a valid legal system. In the Riggs case, a man killed his uncle in order to receive his inheritance before the will could be changed. This is what Dworkin would refer to as a hard case, which he defined as a case in which the basic rules cannot be applied and principles are necessary in order to follow a different route. The findings in this case are a perfect example of how a valid legal system consists of both laws and morality. The judges decided that it would be immoral to allow the legally binding will to benefit an individual when the death of the testator was due to an illegal act by this particular beneficiary. This case has often been a matter of debate. From a legal positivist standpoint, the law is the law and that is it. If the will was legally binding, the testator’s murderer should have been granted what the testator left for him. This confirms the need for morality in a valid legal system. How can one justify rewarding a man for murder? The inheritance was the reason the testator died and the murder was the reason the will was brought into play. Under no moral standard or valid rule should the murderer be given any benefit for committing such a horrific crime. Maintaining the validity of the will allows the individual to obtain the outcome that he wanted regardless of the murder charges. This is absolutely a case where judicial discretion works to the benefit of the victim and for the greater good and society. Establishing this principle reduces future similar abuse.
Another more recent case in which an extremely important principle was established is R v R. In this case, the House of Lords found that a husband could be found criminally liable for rape of his wife. Without principles, a husband could force his wife to engage in sexual activity, without consent and face no recourse.
Not all philosophers agree with the concept of principles being incorporated into a valid legal system. Hart is heavily criticized for his argument of a system of rules, and Dworkin makes significant reference to Hart ignoring the aspect of principles in his arguments. Without principles, judges simply would struggle to apply the law to its fullest extent. Principles allow judges the option to expand the law to cover every aspect of justice and fairness.
A valid legal system is one that considers both law and morality; it acts for the greater good, is just, and has laws created for a purpose. Laws are meant to be followed. As humans have an obligation to follow laws, they should be benevolent not destructive. Bringing morality into law and into legal systems ensures this. As stated, my views are very similar to those of Lon Fuller and Ronald Dworkin. In the Hart-Fuller conflict, I find myself on Fuller’s side; those who have power and authority should be allowed to make laws, but there needs to be grounds upon which these laws are drafted. One cannot simply create a “law” because they want to. Though I have criticized the 8 desiderata to the extent there is no morality component, they do lead to what constitutes a valid legal system. The concept of morality should be key in these requirements in order to fully implement Fuller’s vision. Ronald Dworkin establishes integrity in law and the concept of judges establishing new legal principles that are just and fair in a society. This is crucial in a valid legal system; the ability for a faster process to create law. Judges have discretion to establish principles. Without interpretation of the law, we would not be able further the development of the law. Reform often comes from newly established principles, as proven in cases such as Riggs v Palmer and R v R. Though this may not be the most concrete procedural way to approach creation of laws and reform according to positivists, it ensures that a society can function on the basis of justice and fairness to the fullest extent. The illogical nature of the strict rule of law proves a definite need for laws to reflect today’s societal values.