Lawyering against Legality: A Consideration of the OLC “Torture Memos” Through the Lens of the Legal Theory of Lon Fuller

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.

IntroductionLegal 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.

Outline1) 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 LawFuller’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 LawA contemporary view of Fuller: N.E. Simmonds.

The non-contingent moral value of the rule of law: (a) Self-determination 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 ThesisFirst 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 ThesisSecond 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 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 LawyeringC) 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 EthicsLegal 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 EthicsLegal 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 LawThe “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.