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,