Retter, Mark; (2015) Internal goods to legal practice: reclaiming fuller with macintyre. UCL Journal of Law and Jurisprudence , 4 (1) p. 1. 10.14324/111.2052-1871.028.

PDF 01_Retter_Internal_Goods_w_DOI.pdf Download (408kB)

Abstract

Lon Fuller rejected legal positivism because he believed that the ‘procedural morality of law’ established a necessary connection between law and morals. Underpinning his argument is a claim that law is a purposive activity grounded by a relationship of political reciprocity between lawgivers and legal subjects. This paper argues that his reliance on political reciprocity implicates a necessary connection between his procedural morality and an unarticulated ‘substantive morality of law’: it presupposes that law is properly understood by reference to the political task of achieving a common good. To establish this necessary connection, I propose we look to Alasdair MacIntyre. Understanding law as a ‘social practice’, on MacIntyre’s terms, can provide the necessary socio-political context to explain why and how legal practice is conditioned by political reciprocity. If we apply MacIntyre’s distinction between the internal and external goods of a social practice, legal positivism can be understood as confusing law as a co-operative social practice with the instrumentalisation of that practice by legal officials.

Download activity - last month

Export as XMLCSVJSON

Download activity - last 12 months

Export as JSONCSVXML

Downloads by country - last 12 months

Export as JSONXMLCSV

Archive Staff Only

View Item