Course:Law3020/2014WT1/Group K/Separation Thesis

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Fuller’s argument that morality and law are inseparable is conducive to Khawaja  Three main planks in Fuller’s argument:  1. that social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order – Terrorism legislation is grounded in recognizing that terrorist actions are immoral.  2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story). If law stops embodying and furthering these rules of inner morality, it falls apart and cannot function anymore as law.  What is there was terrorism fighting the laws of Nazi Germany? Would this been seen as immoral or moral? To agree with Hart’s theory, they would be moral to fight against the Nazi Germany’s legal rule. This would be a clash….and there would need to be a decision whether to follow the legal or moral rules.  3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws. There is inadequate guidance for people! (and remember, this is just after Nazi Germany)  - this is true, individuals need to recognize terrorism as being immoral, in order to follow the laws  4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judiciary has a duty to the law, a fidelity to the law, and so requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality. They need to interpret the law in a way that shows that they are faithful to innerly moral law. - Fuller would agree that this is a case where the judges need to interpret to find the context of the law (a case-by-case basis). in reference to the purpose of the rule, and the good the law is meant to accomplish - needs to be supported by recognition