Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis
Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis

Author(s): Miloš Zdravković
Subject(s): Law, Constitution, Jurisprudence, Philosophy of Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Independent State of Croatia (NDH); Lon Fuller; Inner morality of law; Legal system;
Summary/Abstract: Determining the morality of a legal order, in the end, is not an immediate subject of legal science, but of ethics. Therefore, it is possible to analyze the legality of the Ustasha order without questioning its moral assumptions, exclusively on the basis of generally accepted, strictly legal values, that is, from a purely legal point of view. Without resorting to the methods and results of other scientific disciplines such as historiography, sociology, ethics, psychology, political science, etc., but only on the basis of the concepts and values that the legal profession has been building since its existence, it is possible to determine quite precisely how a specific order corresponds to the legal concept. In this regard, a very useful and therefore very widely accepted concept was offered by the famous American legal theorist, Lon Fuller, and it will be used as the basis of the analysis. Fuller made a departure from basing the validity of law on its substantive compliance with morality, according to the formula lex iniusta non est lex. The impossibility of determining indisputable moral criteria for assessing the content of law, as well as the fact that such an assessment is performed externally, outside the framework of legal science, prompted Fuller to find the criteria of the moral correctness of law within himself. Fuller argues that the internal morality of law is embodied in eight conditions (generality of legal rules, prohibition of retro-activity, clarity, efficiency and non-contradiction of rules, etc.) that a normative order must fulfill in order to be recognized as a legal. The conducted analysis shows that the system of rules that was valid in the Independent State of Croatia does not meet any of the criteria of Fuller's theory, and its character of legality must be contested.

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