Lon L Fuller on Jurisprudence of Rewards and Punishment.

February 22, 2018

 

 

The business of distributing awards and penalties is a pervasive one in our society, extending beyond law in to education industry, agriculture and sports. Wherever distinctions are granted or deprivations imposed it is natural to select some umpire or committee to make the decision and no matter whether the issue be that of penalty or award the deciding agency is expected to act with intelligence and impartiality. Nevertheless there is a great difference in the procedures generally established for meting out penalties as contrasted with those that grant awards. Where penalties and deprivations are involved we surround the decision with procedural guarantees of the process, often elaborate ones, and we are likely to impose an obligation of public accountability where awards and honours are granted we are content with moral informal less scrutinised methods of decision.

 

The reason for this difference in plain. Where penalties and deprivations are involved we are operating at the lower levels of human achievement where a defective performance can be recognised, if care is taken, with comparative certainty and formal standards for judging it can be established. At the level where honours and prizes become appropriate we see that there would be little sense, and a god deal of hypocrisy, in surrounding a decision that is essentially subjective and intuitive with the procedures appropriate to the trial of a law suit.

.............................

...........................

Generally we are content with informal levels of decision - often screened from the public - when selections are made for honorary degrees, military decorations, hero medals, literary and scientific prizes, foundation awards, and testimonial dinners. One outstanding exception to this laxness may seem to be presented by the elaborately formal procedure of the beatification in the Roman Catholic Church. But this procedure does not constitute an exception. Its object is not to honour a saint but to authorise a cult. In the language of administrative law, it is a certification procedure. The required performance - including as it does the working of miracles - of necessity runs of the top of scale of human achievements. Presumably, however, it falls within the lower rungs of the supernatural.

 

In the social practices I have just described there is a standing refutation for the notion, so common in moral argument, that we must know the perfectly good before we can recognize the bad or the barely inadequate. If this were true, it would seem to be much easier to assess a five per cent deviation from perfection than to judge a ninety per cent deviation. But when it actually comes to cases, our common sense tells us that we can apply more objective standards to departures from satisfactory performance that we can to performances reaching toward perfection. And it is on this common sense view that we build our institutions and practices.

 

( Lon L. Fuller The Morality of Law, revised edition, Second Indian Reprint, Universal Law Publishing Co Pvt Ltd, 2000 - Storrs Lectures on Jurisprudence, Yale Law School, 1963)

 

 

 

Please reload

Recent Posts

October 7, 2019

Please reload

Archive

Please reload

Tags

Please reload

 

+91 9911222505

Gurugram, Haryana, India

DISCLAIMER: FOLLOWING THE GUIDELINES OF THE BAR COUNCIL OF INDIA WE ARE NOT ADVERTISING ANY OF OUR SERVICES/CONCERNS AND EVERYTHING FOUND IN THIS WEBSITE IS SOLELY FOR INFORMATIVE PURPOSES. ANYONE’S ACCESS TO THIS PARTICULAR WEBSITE WILL BE UNDER HIS/HER VOLITION AND ANY USAGE/TRANSMISSION OF THE CONTENTS PROVIDED IN THE WEBSITE DOES NOT CREATE ANY LIABILITY TOWARDS US. WE ARE NOT SOLICITING OUR WORK AND WITH RESPECT TO THE CONSTITUTIONAL NORMS OF OUR COUNTRY WE ONLY PROVIDE INFORMATIVE SOURCES HERE, SIMULTANEOUSLY AVOIDING ANY FORM OF ADVERTISEMENT.