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Legal Ethics as a Moral Idea: A Theory of Philosophical Legal Ethics Based on the Work of Lon Fuller

Legal Ethics as a Moral Idea: A Theory of Philosophical Legal Ethics Based on the Work of Lon Fuller

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Title: Legal Ethics as a Moral Idea: A Theory of Philosophical Legal Ethics Based on the Work of Lon Fuller
Author: Tucsa, Emanuel Raul
Abstract: The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy.

In this paper, I will argue that the legal philosophy of Lon Fuller provides the best jurisprudential foundation for philosophical legal ethics and the norms of legal ethics. This includes the treatment of topics such as the relationship between law and morality and the duty of fidelity to law.

In addition to arguing these points at a purely conceptual level I make the case that a Fullerian theory of lawyering is indispensable for making sense of a major recent case study in the field of legal ethics, the “torture memos” written for the Bush Administration by the US Justice Department’s Office of Legal Counsel (the “OLC”).

Using a Fullerian approach to legal ethics, I will argue that the inappropriateness of these memos goes beyond the failure of the OLC lawyers to interpret particular laws in good faith. Rather, taking a view of law and lawyering inspired by Fuller’s legal theory, I will argue that, of all of the reasons that one might criticize the OLC lawyers, it is of deepest importance to understand the ways in which the OLC lawyers acted contrary to the ideal of legality in drafting these memos.

I hope to provide insight into the philosophical foundations of legal ethics, as well as a major recent case study for legal ethics and to highlight the connection between lawyering and the vindication of the ideal of legality.
Subject: Law
Keywords: Torture
Legal ethics
Legal ethicist
Legal profession
Legal philosophy
Professional ethics
Standard conception of lawyering
Standard model of lawyering
Philosophical legal ethics
Legal theory
Lon Fuller
Nigel Simmonds
Morality of law
Rule of law
Fidelity to law
Natural law
Natural law theory
Procedural naturalism
Legal positivism
Inclusive legal positivism
Exclusive legal positivism
Authority of law
Separability thesis
Allan Hutchinson
Bradley Wendel
Tim Dare
David Luban
Office of Legal Counsel
John Yoo
Jay Bybee
Torture memos
Type: Electronic Thesis or Dissertation
Rights: Author owns copyright, except where explicitly noted. Please contact the author directly with licensing requests.
URI: http://hdl.handle.net/10315/28204
Supervisor: Hutchinson, Allan C.
Degree: LLM - Master of Laws
Program: Law
Exam date: 2014-06-16
Publish on: 2015-01-26

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