Going back on our word never felt so just.

According to Fuller, good order is law that corresponds to the demands of justice, or morality, or men’s notion of what ought to be. (1957:644).  Regarding to the specifics, Fuller suggest that valid law is possible when lawmaking and minimum internal morality are reflected by the actions of legislators, judges, and lawyers, and are in turn accepted by those subject to the rule of law (Pavlich, 33). When we mention internal morality we refer to the overall morality of the lawmaking process. Fuller concludes that if lawmaking practices no not conform to basic internal morality then the system itself not a legal one. Furthermore, it doesn’t have true authority to impose law on subjects (Pavlich, 31). Fuller uses the example of the fictional king Rex to display the minimum requirements required for crafting valid law that reflects internal morality. If we use Fullers King Rex example and implement it towards the case of the man to be convicted of a marijuana related charge, we discover something. As far as i can tell in regards to this particular situation there are no failures whatsoever.  The legal system has to have certain features in order to issue laws to its citizens. That is that it needs to issue laws that are regular, public, prospective, understandable, not contradictory, possible to comply with, constant, and administrated consistently.   The problem here is that Fuller would feel very likely to suggest that the law criminalizing marijuana was not internally moral since marijuana itself was very popular with most of its citizens. Furthermore this suggest that using and  trafficking marijuana was moral in itself, since it was a such a popular norm. I expected to look at the fictional king Rex example and perhaps find an explanation as to why releasing the man and rendering his conviction null would perhaps reflect morality of law, but, unfortunately this was not the case. The king Rex example fails to suggest so, as all eight positive “desideata” for successful law are included. However despite this many people still might suggest that the law of prohibiting marijuana could still in fact be wicked or  immoral even when it follows the principles of King Rex correctly. This tells me that the king Rex example supplied by Fuller is somewhat inadequate.

As understood by Finnis, we ask ourselves, would the original sentence of the man still stand in the interests of the common good? Throwing law out the window for just a second, Finnis  looks at what basic aspects constitute for our well being. He offers seven basic forms of human flourishing and suggest that all are essential to a fulfilling life (Pavlich, 35). He further understands that human life cannot flourish without a community, that which is led by an authority that pursues a common good. When Finnis arrives at the situation of law he argues that ” A healthy community requires a common code of conduct that orders and coordinates interaction to achieve a common good.” (Pavlich, 35). To Finnis, natural law consist of both the basic forms of human flourishing and elements of reasonableness in moral matters (Pavlich 36). We ask ourselves in the situation of the man dealing with marijuana charges  if the law secures and nurture the common good that which is derived by universal morality.  I believe Finnis would strongly insist that the original sentence does not reflect the interest of the common good as it is obvious that most of the population considers marijuana use moral and just.

In my own opinion i have always seen marijuana itself as “The safe drug” that is yet criminalized. It was not so long ago that alcohol itself was prohibited under law. It was soon decriminalized due to popular use and and is still to this day legal to consume and sell.  Even though alcohol itself is a more dangerous substance that can lead to such effects as alcohol poisoning, various cancers, and of course drinking and driving. Drinking and driving in itself is a huge cause for the striking of pedestrians by vehicle and causing possible death. I cannot help but feel that it is immoral to keep this man in jail and continuing to serve a sentence for using or distributing something that was and still is considered moral upon popular consensus. I do however recognize the problem with consistency in law. i would not like to promote to any individual that in the case of assault or theft, that if simply many people started to do it, it could somehow become moral. This is a very different situation,  because the harms of marijuana are extremely minimal as far as i can tell. I believe the just action would be to release those who have been imprisoned for strictly marijuana relate charges.   Of course if offenders have a charge that consist of trafficking marijuana and another offense for example carrying a firearm without permit, they should have their sentence reduced to the punishment of simply carrying a firearm without permit. I am wary that the courts would perhaps have a heck of a time sorting this out, but i believe we are under no choice but to consider what is morally right by our populations standards and work towards a common good. You may be in favor of the notion that law is law.  This may be true, but bad law deserves reconciliation.


1 Comment

Filed under Contributor Post

One response to “Going back on our word never felt so just.

  1. This is an interesting application of Fuller’s theory! Rather than focusing on the question of retroactivity, you are suggesting that the previous legal regime (our current regime) failed to meet the minimum standards of law because the enforcement of prohibitions related to marijuana was / is uneven. I note, though, that Fuller’s framework does not take into account the opinions of law’s subjects – only the internal morality of the processes through which it is created and enforced.

    Consider Pavlich’s (2011, p. 31) description of the King Rex parable. The third error that Rex makes is to use retractive legislation. Is this not what is described in the scenario we are considering?

    Your description of Finnis’ theory and your application of his ideas to this case are effective.

    Generally, this is a good first post.