Tiberius and Gaius Speaking...

Philosophy 436: Discussion Four

    The experience of Nazi Germany had an electrifying effect on legal philosophy. The sheer, unadulterated evil of the Nazi regime seemed to convince many that natural law theory had something going for it because the idea that German citizens had a general obligation to follow Nazi law seems grotesque. Lon Fuller and HLA Hart have a famous debate on the matter of Nazi law. That debate is partially reproduced in your coursepack.

    I would like you to take sides in this debate. I would like to consider the Nazi example from three standpoints: the "pure" natural law position, the internal position of Lon Fuller, and the positivistic position of Hart. Which one most accurately characterizes what is going in Nazi Germany? Is the general obligation to follow the law swamped by the moral obligation to disobey it, is the general obligation to follow the law dissolved by the internal characteristics of the Nazi "legal system," or is there no legal obligation to follow outside the immorality of following Nazi policy? Or is there some fourth option?

Philosophy 436 Discussion Three

    For this week, I would like you to consider the following 'hypothetical' scenario from a country called Oceania:

A legislature passes a law stating that all domestic wire-tapping operations must be approved by a specially authorized court. The executive proceeds to undertake precisely the proscribed operations without a court order. The executive proceeds to punish NSA people who refuse to do the program by firing them. The legislature begins to investigate whether the law was "broken."

According to Austin, has it? Why or why not? Is it too soon to tell? Be sure to include in your response what parts of Austin you would use to support your argument. Be sure to specifically cite the claims you make.

Phil 436 Discussion 2

    After WW II, the revelations concerning the Nazis caused a stir in the philosophy of law leading to an upsurge in natural law theory. This development was starkly demonstrated in a series of debates between the legal positivist exemplar H.L.A. Hart and "natural law theorist" Lon Fuller.

    In his book, The Morality of Law, Fuller sets out what he calls the internal moral standards of a legal system:

1. The rules must be general and not mere ad hoc commands.
2. There can be no secret (unpromulgated) rules.
3. There can be retroactive rules.
4. The rules must be understandable by those to whom they apply.
5. The rules must not be either self-contradictory or contradictory as a group.
6. The rules must not demand actions that are beyond their subjects' power to perform.
7. The rules must not be constantly changing.
8. There must be some miniomal correspondence between what they rules say and how they are administered or interpreteted by the courts.

    According to Fuller, any legal system that totally lacks one of these characteristics or has substantial defects in several is not a true legal system. Thus, it cannot produce a real obligation to follow its commands.

    My question to all of you is this: is this a genuine natural law theory from the perspective of any of the thinkers we have considered? Why not? Reminder: you may respond to another person's post rather than develop a point from scratch.

UPDATE: If you find this question utterly bewildering, you may want to look at the Feinberg article on page 56 of your coursepack. Nota bene: Feinberg and Clarence Thomas are natural law thinkers for the purposes of this post.

UPDATE

Philosophy 436: Discussion One

    I would like you to consider the following skeletal objection to natural law theory: "Natural law theory is committed to the claim that Nazi Germany, ancient Athens, and (at the very least) pre Civil War United States did not have legal systems, and this is quite implausible."

    I would like you to consider some of these issues in your response, or respond to other posters' responses:

• Is the natural law theorist committed to this claim? Why or why not? Would the Moorean natural law theorist answer differently than the Thomistic (after Thomas Aquinas) theorist? Could the natural law theorist accept some of these states as legal systems and reject others? If so, why?
• If so, do these three states constitute strong counter examples to natural law theory?
• Finally, does the plausibility of natural law theory rely on an equivocation between obligation in the sense of being physically forced and obligation in the moral sense?

You do not have to touch on all these points, but it would be good to touch on a couple in some detail. Of course, if you have something amazingly original, then you should post that.

Good luck.