Weekly Topic 10/20/09

I feel that Fuller's assertion of the ameliorating effects of internal morality is fundamentally unprovable. Regardless of explanation or justification of a decision, the underlying motivations may not be noble ones. I would also argue that coherence and order are not good indicators of the state of a legal system. There are plenty of legal systems that I would consider bad but still promote overall coherence and order. For example, I would view communist states as bad legal systems that limit individual liberties and freedoms, yet they still promote overall order. Authoritarian governments also promote order and coherence, yet I would view them as fundamentally corrupt. The entire system is under the direction of one authoritative figure who usually does not have the best interests of society in mind. There are social consequences associated with Fuller's view. Simply requiring explanation and justification of decisions does not elicit good intentions. As Fuller admits, it is naive to say that coherence and goodness have more affinity that coherence and evil. Therefore, it may be impossible to distinguish between internal morality toward fundamentally good or bad systems. Coherence can result from agreement with legal principles and trust in the legal system. However, coherence can also be enforced through a Machiavellian approach. Fear of the sovereign, sanction, or even non-conformity can produce coherence and order.

Weekly Topic: Internal and External Morality

Lon Fuller suggests that good legal systems can be distinguished from bad ones by the amount of coherence and order that they promote among those who are subject to the law. Nevertheless, Fuller admits that for him this "assertion of a belief that may be naive [. . .] that coherence and goodness have more affinity than coherence and evil" remains unproven. Based on Fuller's account of the internal or procedural aspects of morality pertaining to law, is it possible to substantiate Fuller's assertion that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness" or is Fuller's view of the ameliorating effects of internal morality fundamentally unprovable? Regardless of whether it can be proven or not, what consequences in legal scholarship do you see resulting from such a view and how do they differ from the positivist claim that legal scholarship must rest on the letter of the law, e.g. interpretation of penumbra legal disputes in light of the core solidified meaning of precedent?