In ‘Eight Ways to Fail to Make Law,’ Lon Fuller offers a kind of natural law theory that insists upon a necessary connection between law and morality that is based in the process or procedure through which law is created and maintained. Whereas Aquinas identified a necessary substantive morality of law, Fuller identifies a necessary procedural morality of law. In other words, Aquinas was primarily concerned with the content of law, whereas is Fuller is more concerned with the form of law. For Fuller, law (properly speaking) is created and maintained according to 8 principles of legality. These principles are grounded in morality because they ensure basic fairness in administration of the law, and fairness is a moral value.
One of the main debates among contemporary legal theorists in the mid-to-late 20th century was whether (and to what extent) the Nazis used genuine law to govern, or whether they were thugs using brute force disguised with the window-dressings of law. Toward the end of Fuller’s essay, he discusses the Nazis in relation to the 8 principles of legality he has just laid out in the essay. Read the essay carefully and pay attention to the claims he makes about the Nazis. Then, in a short paper, explain how law differs from the mere maintenance of order, according to Fuller. Be specific in grounding your interpretive claims in specific points Fuller makes about Nazi ‘law.’
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