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The "Torture Memos"

Submitted by Emanuel Tucsa on Wed, 07-25-2012
Long title
Lawyering against Legality: A Consideration of the OLC “Torture Memos” Through the Lens of the Legal Theory of Lon Fuller
Tucsa, Emanuel R.
Author(s)' contact information
Conference title
International Legal Ethics Conference 5
Conference location
University of Calgary (host), Banff, Alberta
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The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly interesting 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 their respective jurisprudential theories. These include, notably, the exclusive positivist theory of Dare, the inclusive positivist approach of Wendel, the substantive contextual judgment view of Simon. Additionally, Luban has drawn out and evaluated an insightful interpretation of Fuller’s legal philosophy. A central case study in this field has been that of the “torture memos” written for the Bush Administration by the US Justice Department’s Office of Legal Counsel (the “OLC”). Using a Fullerian approach, 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.
The primary method that I will use in my research is theoretical analysis of concepts and conceptions from legal philosophy.
I hope to provide insight into a major recent case study for legal ethics and to highlight the connection between lawyering and the furtherance of the ideal of legality.
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This submission is best classified under a subject Teaching Topic heading of "legal ethics theory".
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