Emanuel Tucsa, LLM Candidate 2012
Osgoode Hall Law School
Presented at ILEC 5
July 13, 2012
Banff, Alberta, Canada
These Powerpoint slides did not end up being used during my presentation but they were created in
preparation for the presentation and summarize what I said.
Introduction
 Legal ethicists interested in legal philosophy.
 Fuller overlooked as legal philosopher in legal
philosophy and legal ethics.
 Fuller’s thesis has much merit as a legal theory and
especially as a theory of lawyering.
 My theory is Fuller-inspired, not Fuller’s own account
of lawyering.
Outline
 1) Fuller and the Rule of Law.
 2) Principles of Fullerian Lawyering.
 3) Some Ethical Evaluation of Procedural Naturalist
Lawyerly Fidelity.
 4) Facts and Law: The “Torture Memos”.
 5) Legal Ethics and the “Torture Memos”.
 6) Fullerian Lawyering and the “Torture Memos”.
1) Fuller and the Rule of Law
 Fuller’s view is a Natural law thesis. Necessary
connection between law and morality. Law prevents
certain evils, achieves certain moral virtues and law
tends away from evil.
 Distinction Waldron: Contingent moral
significance/Noncontingent moral significance.
Fuller’s theory posits non-contingent moral
significance.
1) Fuller and the Rule of Law
 A contemporary view of Fuller: N.E. Simmonds. The
non-contingent moral value of the rule of law: (a) Selfdetermination Also Luban/Waldron (b) Adjudication
and Morality Through a Necessary Connection to
Justice/Less interpretive guidance the further they
depart.
 Simmonds Shows How This is Doubly Troubling for
Raz. The necessity of the rule of law proceeds even
Razian reason-giving (borrowing a phrase from the
legal philosopher Michael S. Moore).
2) Principles of Fullerian Lawyering

A) First Principle of Fullerian Lawyering – The
Internal Morality Thesis
 First Principle of Fullerian Lawyering – The Internal
Morality Thesis:
Because the internal morality of law and its principles of
legality are necessary conditions for the existence of law,
law cannot disclaim at least this incorporation of morality.
Nor can lawyers and judges, when engaging in legal
interpretation, disclaim to know the moral truths that are
necessarily incorporated into the law by the internal
morality of law.
2) Principles of Fullerian Lawyering

B) Second Principle of Fullerian Lawyering –
The Moral Orientation Thesis
 Second Principle of Fullerian Lawyering – The Moral
Orientation Thesis:
When the legal system and the law on a particular
field abides by the rule of law, a lawyer has a duty, from
the perspective of legal ethics, to treat and interpret
the law as tending away from evil.
2) Principles of Fullerian Lawyering
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Two Level Analysis of the Moral Orientation Thesis:
(1) Fundamental Level: The lawyer must assess whether the legal
system, the law on the particular field and perhaps the individual legal sources
that are relevant to the case at hand, comply with the principles of legality.
(2) Doctrinal Level: If the law on the relevant case does comply with
the principles of legality, the lawyer should treat the law on the subject as if it
tends away from evil. Treating the law as tending away from evil means:
First, the lawyer must show sufficient deference to the positively stated law.
Second, interpreting the details of the positively stated law means reading
them to make the best moral case and justification for law insofar as it pertains
to the principles of legality.
2) Principles of Fullerian Lawyering
 C) The Shape of Lawyerly Fidelity
 The lawyer’s duty of fidelity to law tracks legality.
 This is ethically deepened by the realization that, to an
extent, legality tracks the legal system’s adherence to
specific moral principles. Simmonds tells us that as
law becomes less legal, it loses its interpretive
guidance.
3) Some Ethical Evaluation of
Procedural Naturalist Lawyerly Fidelity
 Hutchinson criticizes Wendel concerned only with the
legal justice. My theory does not suffer this problem
because one must do a rule of law evaluation (i.e. an
assessment of the internal morality of law) before one
can discuss the client’s legal justice.
 Hutchinson’s three levels of moral analysis: moral
sensitivity, moral judgment and moral conviction. I am
presently providing a theory of moral judgment.
4) Facts and Law: “The Torture” Memos
 January 9th Memo about status of enemy combatants
under Geneva Conventions.
 August 1st Memo about “severe pain” and also necessity
argument.
 Yoo, Frontline Interview: keep moral analysis out of
legal analysis. This separation makes legal advice more
accurate and credible. Ironically, Yoo, did not take his
own advice.
5) Legal Ethics and the “Torture Memos”
 A) Doctrinal Legal Ethics
 Legal ethicists have discussed problems with the “torture
memos”.
 Two levels of failure: (1) badly mistaken legal analysis and
(2) defects of the approaches taken in writing the memos
(including political and contextual exigencies, pressure to
be “forward leaning”, failure to describe idiosyncratic
nature of opinion contained in memos, no mention of
negative feedback received from lawyers in other executive
branch departments, advocacy approach rather than
advising approach, problem “Lock-in”/advise after the fact:
George Harris applying Harold Koh.
5) Legal Ethics and the “Torture Memos”
 B) Philosophical Legal Ethics
 Legal philosophers and philosophical legal ethicists have also
discussed the issues with the “torture memos”.
 Jeremy Waldron argues against the “torture memos” on the
basis of the idea that they violate a legal archetype against
torture.
 Bradley Wendel argues that the memos are an example of
ethical solipsism because of their failure to treat the positively
stated law as a Razian peremptory norm.
 But, remember Simmonds’ argument about Razian reasons. This
means that Wendel’s argument cannot be applied until a
Fullerian analysis is undertaken and until the legal norms’ status
relative to the functional/moral condition of the rule of law is
satisfied.
6) Fullerian Lawyering and the “Torture Memos”
How would a Fullerian Critique the Memos?
(1) Under a Fullerian Theory of Law
 The “torture memos” actively undermined the rule of
law and thus go directly against Fuller’s own theory violation of desiderata such as prospectivity and
congruence.
6) Fullerian Lawyering and the “Torture Memos”
How would a Fullerian Critique the Memos?
(2) Under a Fullerian Account of Lawyering
 (i) The memos break my First Principle of Fullerian
Lawyering by failing to recognize the morality that has
been incorporated into law.
 (ii) The memos breach my Second Principle of Fullerian
Lawyering because they do not do not show evidence of the
OLC lawyers regarding the law as tending away from evil.
The OLC lawyers were obliged to treat the positive law on
torture as such after what was a clear fundamental level
analysis in favour of the alignment between the procedural
aspects of the norms on torture and the requirements of
the rule of law. E.g. Yoo’s ticking time-bomb reasoning
Conclusion
 Merit of Fuller’s legal theory.
 Rich ethical thesis.
 Theory is ripe for further consideration by legal
ethicists.