The Elusive Morality of Law

Some critics of Professor Fuller\u27s earlier writing, troubled as I am by this bizarre use of the concept of morality, assume that he is using that concept in a special and generous way. They believe he means by morality nothing more than strategy, so that he would recognize a special morality of building a bridge or making a model airplane or doing anything else that it might come into one\u27s head to do. I have chosen to reject this belittling interpretation of Professor Fuller\u27s book. Instead I take his argument to be this: The eight canons themselves state moral principles (using moral in a perfectly conventional sense). This is illustrated by the fact that some of the most notorious examples of political immorality - in Nazi Germany and South Africa, for example - involved gross violations of one or more of these canons. We associate with each of these such injustices as retroactive capital offenses, trumped-up charges, and secret penal statutes. So we can conclude that these canons are in themselves moral principles. But we know from the history of Rex (as well as the history of Tex) that no legislator, even a despot, can disregard these canons entirely and succeed. It follows that some compliance with moral principles is necessary to make law, even bad law

The Case for Law – A Critique

Pound\u27s Valparaiso address-The Case for Law-is not a strong piece; it is more a restatement of old themes than a fresh adventure. But it does illustrate the main features of his intellectual profile. His exuberant erudition sweeps us from Babylon through Rome and Plantagenet England to Colonial America, Imperial France and yesterday. His philosophical sense is deployed, cutting across dogmatism and opening up lines of analysis with logical distinctions between law and laws, rules and principles, justice and utopia. But his lack of discipline is also at work, and prevents him from carrying his insights and distinctions far enough to make them pay their way