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The Elusive Morality of Law, 10 Vanderbilt Law Review 631 (1965)


Some critics of Professor Fuller's 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's head to do. I have chosen to reject this belittling interpretation of Professor Fuller's 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.

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