Friday, January 13, 2006

Deep fish

I've been rereading the "Thirty Questions for Alito" from below, and I think I've found my favorite, from Stanley Fish:
In a famous debate half a century ago, the legal theorists H. L. A. Hart and Lon Fuller differed on the question of whether Nazi law in Germany was, in fact, law. Hart argued that morally iniquitous laws that have a valid form - laws that have emerged as the result of following legitimate procedures - are still laws, even though we might want to say that they are bad laws. Fuller contended that a legal system devoted to evil aims could not be called law because there is "a necessary relationship between substantive justice and procedural justice." With which of these theorists are you in agreement? Are law and morality finally one or can they be distinguished? Were the laws denying the vote to women in America real laws or spurious laws?
I would be scared to try to answer this on an Amar exam, because there'd be so much to say, and it would be so difficult; but paradoxically I imagine it would be the most rewarding questions to tackle.


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