The Consequences of Failure

Rex’s career illustrates attempt to create system of legal rules may miscarry

in 8 ways

o 1. Failure to achieve any rules at all

o 2. Failure to publicize rules expected to observe.

o 3. abuse of retroactive legislation: doesn’t allow guide and also

undercuts prospective rules since it threatens to change them

o 4. Failure to make rules understandable ( Notary public London lawyers )

o 5. Enactment of contradictory rules

o 6. Rules that require conduct beyond the powers of the affected party

o 7. Introducing too many and frequent changes in rules that subject

cannot orient his action by them

o 8. Failure of congruence between rules as announced and their actual


 If fail in one of these eight: no legal system at all. Government makes kind of

covenant, “if you follow rules, you have assurance that they are rules that will

be applied to your conduct.

 Citizens predicament, when things like Nazi Germany happen and there is

drastic and general deterioration in legality. In these situations, no simple

principle by which to test the citizen’s obligation of fidelity to law, any more

than there can be such a principle for testing his right to engage in a general

revolution. THUS, respect for constituted authority must be kept separate

from fidelity to law (Rex’s subjects remained faithful to him as king but not

faithful to his law, for he never made any).

Aspiration toward Perfection in legality

 Corresponding 8 routes to legal excellence. Fulfilment of all 8 is utopia. But

this Utopia not actually a useful target for guiding impulse toward legality, goal

of perfection is more complex. But suggest 8 standards by which excellence

in legality may be tested.

 Now clear, that inner morality of law presents all aspects of that scale which

starts with MOD and ascends to MOA.

 Applying analysis of first chapter to this subject, must consider distinctive

qualities of inner morality of law.

o Basic morality of social life, duties towards others, usually only require

negative “do not kill” type commands.

o But inner morality requires more, also needs ‘make law known’ ‘make it

coherent’ etc. To meet this, energies must be directed towards specific

kinds of achievements not merely warned away from harmful acts.

o Because of affirmative quality of its demands, IM lends badly to

realization through duties, whether moral or legal, why? Because now

matter how desirable direction of human effort may be or appear, if we

assert there is a duty to pursue it, we shall confront the responsibility of

defining at what point that duty has been violated. Thus, duty on

legislator to make laws clear is an exhortation unless we define degree

of clarity he must attain to discharge duty.  Adds to up saying:

Morality of law condemned to remain largely a morality of aspiration

and not duty. Its primary appeal must be to a sense of trusteeship and

to pride of the craftsman.

o Importance exception: relates to desideratum of making laws known.

This demand lends itself to formalisation.

o You would think that non-retroactivity also easily formalised, but this

seeming obvious demand turns out to be one of most difficult problems

of whole internal morality of law.

Legality and Economic Calculation

 Remember, on level of duty, marginal utility calculation out of place, but in

MOA not only in place, but becomes integral part of moral decision –

increasingly as we reach towards highest levels of achievement.

 Need economic calculation when inner and external moralities conflict, eg,

inner morality wants stability,


Sponsored by abogados laborales

This is the story of the unhappy reign of a monarch of Rex

Eight Ways to Fail to Make Law

 Rex was resolved to remedy a bad situation: but, alas, he fails.

 First act was dramatic: announced repeal of all existing law (to get clean

slate) But making new laws was tough, and strained him to the breaking


 So gave up on making code, and said, he would be judge over any disputes

that may arise, in hope that case by case he would work out a system of rules

that could be made into a code. Unfortunately, after 100s of decisions, could

not detect any pattern. Any attempt led to even more confusion and threw his

meagre powers of judgment off balance.

 Following that Fiasco, Rex took fresh start, and took lessons in generalisation

and tried to make code again. Not 100% confident, said that there is code but

would still sit as judge, but code was state secret, only known to him.

Subjects did not like this.

 Then decide that at start of each year, he would decide all controversies that

had arisen among subjects during preceding year. He would accompany

decisions with full statement of reasons. Subjects said, we want to know

rules in advance so they could act on them.

 Rex now knew, no escape from published code declaring rules to be applied

in future disputes. Subjects happy, but then dismayed when saw that code

was obscure.

 Code was withdrawn, Rex put staff of experts on the Task. They clarified

things, but only brought to light that it was honeycombed with contradictions

 Again code withdrawn from revision, Rex now losing patience with subjects

and their negative attitude. So purged code of contradictions, and stiffened

rules: ten years prison for coughing in presence of king. And many other

ridiculous laws

 Near revolution ensued. “To command what cannot be done is not to make

law; it is to unmake law, for a command that cannot be obeyed serves no

end but confusion, fear and chaos”.

 Code withdrawn, again revision, so that any impossibility reversed to make

possible. To accomplish this, every part of code had to be substantially

rewritten. But final result was clear and consistent in itself.

 But because so much had been changing, as soon as new code appeared,

and became legally effective, subjected to string of amendments. Popular

discontent mounted, “A law that changes every day is worse than no law at


 But pace of amendment began to reduce. But rex felt much bad things

happened because of bad advice from experts. – so reassume judicial power

in his own person.

 This time he was deft, apt, and confident to distinguish own decisions on

principled basis.

 But soon, when reread judgments, saw no correlation between judgments

and the code they purported to apply.

 Leading citizens began to hold private meetings to discuss what measures

short of revolt can be taken, and then Rex suddenly died.

 Rex II decided to take powers of government away from lawyers and place

them in hands of psychiatrists and experts in public relations so that people

would be happy.

The Consequences of Failure

 Rex’s career illustrates attempt to create system of legal rules may miscarry

in 8 ways

o 1. Failure to achieve any rules at all

o 2. Failure to publicize rules expected to observe.

o 3. abuse of retroactive legislation: doesn’t allow guide and also

undercuts prospective rules since it threatens to change them

o 4. Failure to make rules understandable

o 5. Enactment of contradictory rules

o 6. Rules that require conduct beyond the powers of the affected party

o 7. Introducing too many and frequent changes in rules that subject

cannot orient his action by them

o 8. Failure of congruence between rules as announced and their actual


 If fail in one of these eight: no legal system at all. Government makes kind of

covenant, “if you follow rules, you have assurance that they are rules that will

be applied to your conduct.

Lon Fuller, THE MORALITY OF LAW (rev. ed.)

pp 3-13, 33-94, 133-51, 187-224

p. 3-13


 Content of chapters – because unhappy with existing literature about relation

between law and morality. Two major deficiencies:

o 1. Failure to clarify the meaning of morality itself. It is assumed we all

know what morality means! But that is not the case.

 In chapter 1, I try to redress this by highlight distinction between

morality of duty + morality of aspiration.

o 2. Neglect for Morality that makes law possible. Focus on “legal

justice”, treat like alike, but little recognition that problem thus

adumbrated is only one aspect of much larger problem – clarifying

directions of human effort essential to maintain any system of law,

even one whose ultimate objectives may be evil.

 Chp. 3 attempt to bring the analysis of the first two chapters into relation with

various schools of legal philosophy.

 Chp4 seeks to show how proper respect for internal morality of law limits

kinds of substantive aims that may be achieved through legal rules – closes

by showing how something like a substantive “natural law” may be derived

from the morality of aspiration.

The Moralities of Duty and Aspiration

 Distinction between morality of aspiration and morality of duty

o Morality of aspiration most plainly exemplified in Greek philosophy: it is

the morality of the Good life, or excellence, of fullest realisation of

human powers.

o May be overtones of duty to get there, and if fail to realize fullest

capacities, he would be found wanting, not for being recreant to duty,

but for shortcoming, not wrongdoing.

o Rather than right or wrong, we have beseeming conduct.

 Morality of aspiration starts at TOP of human achievement, morality of duty

starts at BOTTOM (ie, lays down basic rules necessary for society)

o MOD = Old Testament morality “thou shall”, “thou shall not”.

Condemns men for failing to respect basic requirements of social


 Metaphor to help distinguish MOD and MOA:

o MOD = rules of grammar

o MOA = rules of what is sublime and elegant composition of writing.

(these are more vague that basic rules of grammar)

 How would moralities view gambling?


 hypothetical moral legislator would have to decide if gambling

harmful so as to refrain from engaging in it.

 Would realise that marginal utility not good with gambling.

 Weighing all this: MOD might conclude that men ought not to

gamble for high stakes, that they have a duty to sun “deep play”.

 MOD as lawmaker: will have to face new questions, eg, what

about games that partly rely on skill etc, yes, but at no point

would there be any sharp break with methods followed in

deciding whether to condemn gambling as immoral.


 Q: Is it activity worth of man's capacities? Answer: No, it’s a kind

of fetish, enjoying cultivation of risk for its own sake, not in the

pursuit of, eg, some higher artistic aim. So, gambling unfit for


 MOA as law maker?: No direct bearing at all. Law cannot

compel man to live up to excellences of which he is capable.

 For workable standards  MOD

 But MOA has pervasiveness of its implications: rules of contract

and tort, some key principles were not present in early stages of

law but now are and represents the fruit of centuries old struggle

to reduce the role of the irrational in human affairs.

 Still, no may to compel reason, only seek to exclude from his life

grosser and more obvious manifestations of chance and


The Moral Scale – measure by analysing the case of abogados de accidentes

 As considering whole range of moral issues, we may conveniently imagine a

kind of scale or yardstick which begins at bottom with most obvious demands

of social living and extends to highest reaches of human aspiration.

o “Somewhere along that line there is an invisible pointer where the

pressure of duty leaves off and the challenge of excellence


o War of moral argument is over location of this pointer.

o To find it, must know what is perfect life – if you accept this, then

drawing line is pointless because MOD must borrow standards from


 This view has led to diametrically opposed conclusions

concerning the objectivity of moral judgments.

 One side: Fact of experience that we know and agree on

what is bad, thus must follow that we have shared picture

of what is perfectly good (Platonic Socrates)

 Other side: Men do not agree on what is perfectly good,

our apparent agreement of what is bad is perhaps an

illusion, born of social conditioning, habituation, and

shared prejudice.

 Both rest on idea: must know good to know

Two factors against The Principle of Conferral

1.Court interpreted powers granted by the Treaty in wide manner

 Theory of implied powers:

◦ Narrow formulation: existence of given power implies also existence of any other power which

is necessary for exercise of the former. (ECJ 1956)

◦ Wide formulation: existence of given objective or function implies existence of any power

reasonably necessary to attain it. (Germany v Commission: if provision confers taskt, impliedly

gives powers to complete task)

2. Some Treaty provisions are open-ended

 E.g: Art 352 TFEU: power to take measures to attain any objective of the Union.

 But consider the list of objectives in Art 3 TEU (protection of environment, social progress, etc, very

vague and general)!

 Only to be used in the absence of a more specific legal basis

◦ (led to problems in Hauptzollamt Bremerhaven v Massey-Ferguson, argued that necessary power

was in fact granted by certain provision of Treaty but AG Trabucchi submitted (Court followed)

that those other powers were subject to doubt, even if wide enough;

 But there are formal requirements and limits

◦ e.g. you cannot use it to amend the treaties- as per the Court’s Opinion on the accession to the

ECHR) or potentially open-ended Articles (Art 114 TFEU).

◦ Post Lisbon: Art 352 cannot serve as basis for attaining objectives pertaining to the common

foreign and security policy.

◦ Post Lisbon: Commission must draw the attention of the national Plt to proposals based on

Article 352.

 Also note that if 352 did not exist would require MS to enter into Treaty which needs ratification, so

allows national Gov's to bypass this, but sacrificing democratic control at national level.

2.3 The Three kinds of EU Competence:

(1) Exclusive:

Art 2(1) TFEU: If Treaties confer exclusive competence only the Union may legislate and adopt legally

binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the

implementation of Union acts.

Note: even if the Union has not acted yet, or decides not to act, MS cannot do anything.

Art 3 TFEU: Tells us in what cases Union has exclusive competence – see statute.

(2) Shared (most of what EU does)

Whenever the Treaty grants a competence to the EU that is neither exclusive (above) nor

‘supplementary’ (as we will see below), this competence is shared. Member States may still

legislate in an area of shared competence, but only as long as the Union has not exercised its power.

There are very few 'special' competence where MS can act even if the EU is acting already: Art 4

TFEU, para 3-4:research, technological development and space, humanitarian aid))

Article 4(2) TFEU tells us when it applies (you see this is most of what EU does) – see Statute

(3) Supplementary:

No name given in treaties. These are areas Union can only coordinate or support the actions of the

Member States. These areas are listed in Art 6 TFEU, and they include human health, industry,

culture, tourism and education.

Competences in the Treaty: the Principle of Conferral

Competences in the Treaty: the Principle of Conferral

The Union can only exercise its powers legitimately under certain conditions set in Treaty

2.1 Article 5 TEU:

Sets out three conditions before Union can doing anything: Competence, subsidiarity and


 Art 5(1). The limits of Union competences are governed by the principle of conferral. The use of Union

competences is governed by the principles of subsidiarity and proportionality.

 Art 5(2) Under the principle of conferral, the Union shall act only within the limits of the competences

conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not

conferred upon the Union in the Treaties remain with the Member States.

 Note: Court of Justice controls if Union acts outside (Some constitutional courts disagree

because say European Court lacks kompetenz-kompetenz, i.e, because EC belongs to the

Union, should not be EC that has the last word, because there would be bias in the system in

favor of the Union

 Art 5(3). Principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union

shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the

Member States, either at central level or at regional and local level, but can rather, by reason of the scale or

effects of the proposed action, be better achieved at Union level.

Acts of the European Union (Art 288 TFEU)

Acts of the European Union (Art 288 TFEU) – _Provided by Abogados de accidentes Jacksonville

1.1 Regulations:

General measures binding on all, and directly applicable, as soon as adopted, are part of national legal

system, no implementation necessary. Must be published in the official Journal,if no date set, on twentieth

day following publication (Art 254 EC). Power to make them can be conferred on commission by council

regulation. Test if regulation is one of substance not of form (calling it regulation) not enough. Common for

individual to argue that regulation is in reality a decision.

*Note: States may need to modify their law in order to comply with a regulation, like when regulation has

implications for different parts of national law.

Be smart: Don't confuse between directly effective and effective without implementation.

1.2 Directives:

Addressed usually to all MS. Binding only as to the result to be achieved, MS choose form and methods,

must be implemented by certain deadline. Advantage is flexibility (Craig de Burca). Case e.g Mangold:

added that even if Directive not yet binding, MS must refrain from doing anything before the deadline that

would jeopardize achieving Directive objective.

1.3 Decisions:

Normally far more specific, and more binding in their entirety. Normally specify to whom they are

addressed. Binding only on the addressee. Treaty stipulates usage of decisions in eg. Breach of competition

rules, or state aids rules. Again, form not name.

1.4 Recommendations and Opinions

Have no binding force. Art 211 EC gives Commission general power to formulate recommendations or

deliver opinion on matters dealt with Treaty.

1.5. Other methods, soft law:

Case Variola v Amministrazione delle Finanze 1973

ECJ: The direct application of regulation is independent of any measure of reception into

national law. National law must not obstruct of constrict the effect of it.

Things like policy guidelines issued by the Commission in area of state aids to indicate how it will exercise

its discretion. These methods lauded in EC and recent 2000 Review but also can give rise to problems, e.g.,

those affected trying to understand what the law actually is in that area. Recourse to informal law may also

prevent Council and EP from having effective input into resulting norms.

1.6 Important Points:

 Substance not label given.

 The case-law has in some cases turned Directives into something more like regulations


 All three kinds of legally binding acts (regulations, directives, decisions) may be adopted by

the legislative procedure (either ordinary or special, depending on what the Treaty says), in

which case they will be ‘legislative acts’. If they are not adopted by legislative procedure,

they are ‘non-legislative acts’ (but they are still binding- so why does the distinction matter:

easier to challenge something if non leg after Lisbon)

 Delegated Acts: In Art 290 you have delegated acts, acts adopted by Commission in

exercise of delegated powers. When PLT and Council adopt parent legislation, then

commission adopt delegated legislation.

2. Competences in the Treaty: