A Reply to Professors Cohen and Dworkin

Transcript

1 | Volume 10 Issue 4 Article 5 1965 wor o P rofes sors C ohe A R nd D y t kin epl n a . F ul ler Lon L http://d igitalcommon s.law.villanova.edu/vlr Follow this and additional works at: Jurisprudence Common Part of the s Recomme nded Citation . L. R ill , 10 V workin nd D . 655 (1965). rs Co rofesso o P ev Lon L. Fuller, A R ep ly t hen a http://d Available at: s.law.villanova.edu/vlr/vol10/iss4/5 igitalcommon This Symposi a is brought to you for f ree and ope n access by Villanova University Charles Widger School of Law Digital Repository. It has been ized editor of V accepted for inclusion in V illanova University Charles Widger School of Law Digital Repository. For illanova Law Review by an author aw.villanova.edu more infor mation, p lease contact [email protected] .

2 Fuller: A Reply to Professors Cohen and Dworkin SUMMER 1965] THE MORALITY OF LAW 655 A REPLY TO PROFESSORS COHEN AND DWORKIN* By LoN FULLERt L. O NE OF THE embarrassments about debate a like this is that it becomes apparent at an early point that many of the differences derive from tacit assumptions that are made on both sides. I suggest that any kind of human knowledge is made possible by certain tacit exclusions, certain standards of relevance that define the subject matter we seek to understand. These standards of relevance are generally applied intuitively and without any conscious realization that an alternative is offered. In Michael Polanyi's words, inquiry be- gins with "an area of focal awareness."' We do not have time to review all the strands of reality that might lead into the object of * The designation of my contribution to this written exchange as "A Reply to Professors Cohen and Dworkin" may mislead the reader who attempts to discern a point-by-point correlation between my contribution and that of my critics. It may, therefore, be useful to indicate briefly in what respects this title is inappropriate. In the first place, the "reply" I offer here represents the written statement I took with me to the symposium on April 2nd in a virtually unchanged form. The contributions of Dworkin and Cohen, on the other hand, are not the statements to which I was at that time responding. Professor Cohen's statement has in some respects been revised; in my opinion the revisions introduced do not suggest any alteration of my reply, though in my resolution to stick by my original statement I must confess I have given that question no close scrutiny. As for Professor Dworkin's contribution, it should be said that when I prepared myself for the oral symposium he suggested that I rely for his views on the already published review of my book, Philosophy, Morality and Law - Observations Prompted by Professor Fuller's Novel Claim, 113 U. PA. L. Rgv. 668 (1965). His oral statement on April 2nd in general represented a condensed version of this 23-page review- article; the written statement which he now presents to his readers a is still more condensed version the of same statement, supplemented by a "rebuttal" that was no part of the oral symposium at all. In deciding to preserve my "reply" in its original form have I made no changes to accommodate my arguments to the altered form of Dworkin's presentation or to the "rebuttal" which he has now appended to his criticism of my book. I offer these clarifications with no desire at all to complain about the modifica- tions that Professors Dworkin and Cohen have introduced into their critical com- mentaries, but simply to make it clear that I have not attempted to accommodate my "reply" to these modifications. I have been compelled to leave unanswered a good many issues raised by Professor Cohen's criticism, both as originally delivered and as now revised for this issue of the REview. His is less criticism a of the book under discussion than of my whole life as scholar. a This is hardly the place or the occasion for me to defend myself against the charge that everything I have written (including the book under discussion) has been devoted to a single objective, that of discrediting "positivism" and upholding "natural law." As to the epistemological issue of the wisdom and necessity of attempting an interpretation of purposive actions and institutions as they if were non-purposive, I refer the reader to the exchange between myself and Professor Ernest Nagel in NATURAL 3 L. F. 68 (1958) and 4 NATURAL L. F. (1959). 26 As some indication from other thinkers that my position on this issue is not wholly lacking in intellectual respectability, cite I MICHAEL POLANYI, THE Locic or LIBERTY (1951), PERSONAL KNOWLEDGE (1958) ; and CHARLES TAYLOR, THE EXPLANATION OF BEHAVIOR (1964). t A.B., 1924, J.D., 1926, Stanford University; Carter Professor of General Jurisprudence, Harvard Law School. 1. POLANYI, PERSONAL KNowLEDGE 55-57 passim (1958). Published by Villanova University Charles Widger School of Law Digital Repository, 1965 1

3 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 VILLANOVA LAW REVIEW 10: [VOL. p. 623 immediate our interest. If attempted we to a do whole this, lifetime would not suffice an for investigation of problem. the simplest We saved are this futility from by habits of thought and by ingrained standards that of relevance work put us to on problem the in which are we interested, the price, at naturally, of excluding points of view that change might whole our if they were attitude to rise to conscious- ness. no In field are these remarks more applicable than of that in morality. We say, "Why, obviously moral here is a problem"; or, "But that nothing has morals"; to do with and it uncommon indeed is for anyone making such remarks to out detail spell in just what standards exclusion of defining in adopts he the area morality. Even of the proposition on which both Cohen Professors and Dworkin seem in such complete "moral agreement, standards are never enacted," must on rest an elaborate set of of standards relevance that not, are and cannot be, spelled out seemingly in a so innocent statement. me say Let that at once not am claiming I this in that book, or in I anything have that written, can I always exactly pinpoint what assumptions I have made in arriving certain at conclusions. I am indebted to critics for making me assumptions aware of that have slipped into my thinking without having presented credentials any small to part that that brain my of engages conscious in and deliberate acts rejection of acceptance. and With this somewhat labored apology, suggest let me under- that lying the dispute between the gentlemen from New and Haven myself is, perhaps, single a point of disagreement: I embrace and accept what called the concept of an be may procedural institutional or they morality; They it. reject agree with expressed the view by L. A. H. review Hart in his book, of my that to treat the principles of legality kind a as is of morality blur the distinction "to between the notion for a of and efficiency purpose final judgments about those activities and purposes which with morality in its various is forms 2 concerned." that true it I Is cannot a in morally act given context I unless am position to a in pass some final judgment on the impli- cations and consequences ultimate my of I do act? not think so, and it precisely is perhaps at this point that most of the differences between and myself my critics arise. differences These seem crystalize to around the of our points first of difference, touching that of my use the of conception an "internal morality the of law." charged It is that in advancing this notion I have Hart, 2. 78 Book Review, HARV. L. Rtv. 1281, 1286 (1965). http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 2

4 Fuller: A Reply to Professors Cohen and Dworkin THE 1965] SUMMER MORALITY OF LAW confused the conceptions of morality and of efficacy. Morality is con- cerned with ends, not with means; means, a such as a system of law, can be used for both good and evil ends. It therefore lacks any moral quality in and of itself. Let me, then, address myself to this allegedly fundamental distinction between means and ends moral in discourse. First, I should be willing to concede that what I have sometimes called "the principles of legality" may be regarded simply as means for achieving certain a kind order, of provided this admission is qualified in two ways: (1) that we realize that we are talking, not about control or power over people generally, but about a particular kind of control or power, that obtained through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior; (2) that once such a system is attained, it commands a moral force in the lives of men that is subject to abuse. To put the last point in the simplest terms: once you create a legal order that purports to rest on a system directing human conduct by rules, the law-giver or law-enforcer is subject to a constant temptation to cheat on the system, and to exercise a ruleless power under the guise of upholding a system of rules. The ordinary citizen has a certain deference for law; he does not like to break the law. This attitude on his part is subject exploitation to by the legislator or policeman who, acting in the name of law (that is, in the name of an impersonal regime of general rules), may exercise a power that does not respect those conditions essential for the achieve- ment of a regime of general rules. It generally is accepted that the citizen has, under ordinary circum- stances and subject to exceptions, a moral duty to obey the law. Does not this moral duty of the citizen impose on the legislator a correlative moral responsibility not to frustrate or undermine the citizen's duty toward the law? Does it not mean that he ought not, for example, to enact vague or self-contradictory laws? Professor Dworkin sees no problem here. a If law is so vague as to be meaningless, or is self-contradictory, it is, in Dworkin's view, simply a blank cartridge and the citizen can safely and in good conscience disregard its loud but empty bang. In his own words: A legislature adopts a statute with an overlooked inconsistency so fundamental as to make the statute an empty form, leaving the law as before. Where is the immorality, or lapse of moral ideal ? 3. Dworkin, Philosophy, Morality and Law - Observations Prompted by Pro- fessor Fu!ler's Novel Claim, 113 U. PA. L. Riv. 668, 675 (1965). Published by Villanova University Charles Widger School of Law Digital Repository, 1965 3

5 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 VILLANOVA LAW REVIEW [VOL. 623 10: p. this statute that the citizen just looks Well, I would like see to at says, and "Why, this isn't law at all !" I have seen some tempted that to me say that, but the courts always managed rescue to them in ways could I never have predicted. It sometimes is useful, and refreshing, to turn away from the doctrine-haunted field of legal philosophy, where ideas are judged, not on their own merits, but smelling by them out to if see they may not have some taint of positivism or of natural law about them. this In spirit I turn child to psychology and to the famous work of Piaget, The 4 Moral Judgment of Child. the In that work Piaget views the parent a as law-giver and the child as the legal subject. He points out that most parents are very bad law-givers indeed. With them, criminal liability tends to be independent of fault or intent; the plate broken through clumsiness by a child trying to help with dishes the is apt to down call more a severe punishment than some trifling but deliberate act destruction. of 5 Parents do not trouble about such distinctions (my canon of legality No. and 6), they commonly ". issue . . contradictory commands and are inconsistent in the punishment they inflict . . (my canons Nos. 5 and 8). Piaget speaks of dismal the picture presented by the average parent "especially Sunday on evenings after day's a outing." He speaks of "the psychological inanity of what goes on," and then says: the "average parent" is like an unintelligent government that is content to accumulate laws in spite of the contradictions and the 7 ever-increasing mental confusion this accumulation leads to. Viewing this depressing scene, one realizes, according to Piaget, "how immoral it can be to believe too much morality," in as when the parent demands obedience of the child in the name of morality, while his own ill-temper and indifference to proper his role undermine the meaning that of morality. Let me turn another to field. There is a common expression, "political morality." (Incidentally, there is also a not uncommon ex- pression, "legal morality," which of thought I book my gave some expansion and explication.) Is this a meaningless phrase? Does it misdescribe as "morality" what are really rules of efficacy, rules you 4. The English translation, published in 1932, does not give the date of the French original. 5. PIAG ET, THg MORAL JUDGMENT OP THX CHILD 132 (1932). 6. PIAGET, op. cit. supra note at 5, 134. PIAG9T, 7. op. cit. supra note 5, at 190. http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 4

6 Fuller: A Reply to Professors Cohen and Dworkin THE MORALITY LAW OF 1965] SUMMER to in or to establish an effective govern- get order elected must follow ment? is an innocent be It "political morality" that this said may of it word "morality" the of diversion merely comprehends since enough arena. any in immoral be It that would in the political arena things then to break them without sufficient and promises make to immoral is business, in affairs of the heart, in relations This is so in justification. it is equally so, but no and between contributors and law reviews, of more so, area in the politics. Dworkin in showing effect, tack taken Professor the by This is, in says, he can, how You superfluous the notion of legal morality is. to by means of a retrospective, criminal statute, a man death hound killing, not because of immoral is a wrongful this but is because it because he nor any less, immoral is no the means used. It more, axe. an the job had been done with if statute a with than killed was this mode of reasoning as applied to what is let But us examine argument is Dworkin's called morality. The equivalent of political But shouldn't says a man break promises. Political morality this: promises made break to this wrong is nothing peculiar to politics; it is context. any in reason this way is to miss the point. As lawyers surely, to Now promise know exactly what a to is. How do you is know, not it easy or from an assurance of prediction, a promise a from tell confident a common interest. of right intentions, or from a way disclosing context. in answered have to Plainly, questions like these be inter- arena human expectations and one into dropped of Words words same from the different meaning may actions have a very notion in the sense context. therefore, is, used in a different There moral politics. It is not just a morality of of restatement of a special human life, but a special application all of that pervade principles them. of thing may be said of legal morality. Professor the same Exactly that no new principles, morality this involves insistence Dworkin's kinds special or peculiar of abuse, not toward it is that directed any an exemplification of general moral principles applicable is simply it that the kind of abstraction from context that same involves anywhere, political such thing as is no we insisted there if involved be would morality. is unplagued point, turn Let that this at me, to another area taken is illustration philosophy. My legal that infect slogans the by of organization, and more from what may be called the sociology Published by Villanova University Charles Widger School of Law Digital Repository, 1965 5

7 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 VILLANOVA LAW REVIEW [VOL. p. 10: 623 particularly from a study made rule-making of it as affects internal the organization of a federal agency. I speaking am not of any rules laid down by the agency for the public, but of the internal organiza- tion of the agency itself insofar as that organization was brought about by formal rules. The toleration of illicit practices actually enhances the con- trolling power of superiors, paradoxical as may it seem. [This my is canon No. 8, again.] The following incident illustrates this: An order posted the in washroom - signed, like all orders, by the district commissioner - prohibited the use of more than one paper towel. There seemed to be no attempt to enforce this petty rule, especially since superior officials as well agents as habitually violated it. However, when an agent who had had conflicts with superiors used more than one towel the in presence of an administrative official, he was reprimanded for ignoring the order. An unenforced rule that regularly is violated extends the discretionary power superiors, of because it furnishes them with occasions to use legitimate [better, legitimated] sanctions whenever they fit. see This was implied when an agent described the supervisor as 'a who guy tries to get something on every- body. He doesn't use it. He doesn't care if take you an hour 8 out.' him help you as long . . as . lunch for Do we not have many examples of similar abuses the in ad- ministration and enactment of laws? Blau himself points out that an anti-noise' ordinance that is generally left unenforced may be used by the administration of a city to interfere with the political campaign of a candidate of the opposition party. And indeed this is no imaginary case. And what of the merchants who band together to put through a resale price maintenance law, not with the idea that it will be enforced - they don't want that, for they want be to free to cut prices for their friends and best customers - but with the idea that will it enlist the moral force of law, the and fear of legal trouble as a brake economic on forces competition. of And as know we they frequently the get connivance of the law-maker in abusive this exploitation of the law's moral force. So when I speak of legal morality, I mean just that. I mean that special morality that attaches to office the of law-giver and law-applier, that keeps the occupant of that office, not from murdering people, but from undermining the integrity of the law itself. And that under- mining can come about in many ways, through conscious abuse, BLAU, 8. TH DYNAMICS BUREAUCRACY 01? 215 (2d ed. 1963). (The bracketed insertion is mine.) http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 6

8 Fuller: A Reply to Professors Cohen and Dworkin THE LAW 1965] SUMMER MORALITY OF on reading books through and even indifference, and sloth through a one-way law power depict that jurisprudence projection as of bottom. at man the overlook downward and the concluding In of let morality the internal of discussion this law, observed me growing moral now return to Piaget who the of sense the playing develops child the it in as of games. He chose the game of marbles for in Switzerland according to very it played study as is from to generation, vary generation complicated rules, which seem to he interpreted the results of his and from canton to canton. As inter- moral maturity as he comes child reaches observations, the and views by the to is an essential part of the game itself. see that sticking rules thus from playing The insight he gains the over carries marbles to larger affairs of society. possible point to his conclusions raises Piaget objection a At this and Professors Dworkin by is a that parallel to that raised precise argued, he says, that the child's acceptance of rules Cohen. It may be with do He simply sees that the game is has nothing to morality. enjoys game, and, therefore, he He the impossible without rules. submission is a matter of submits not of to its rules. This efficacy, the price of admission is it morality; pay to reach the he has to game. the of enjoyment if This an adult there to lay down true be there might were the rules, to law, to the interpret decide and infractions on alleged knocked out of the circle to determine whether the marble was really line in the soil. But the scratched the on ambiguously when it landed law-interpreters children are law-makers, the and players bound by rules, all at a sense of reciprocal dependence, or inter- It with once. is sense develops.' action, that the moral So I need do to accept the idea of an internal that all suggest we projection of morality a one-way law, not as to is see law of the the as lying in an interaction between law-giver and power downward, but law-subject, each toward the other. in which has responsibilities to me main issue, mainly, the questions let the second Now turn a respect that suggestion by raised my internal morality of for the legislator will the making of laws that are toward law incline the aims. substantive their in just to observe that this point is severable from the Initially, I want first I have an notion of accept internal can One the discussed. with my assurance that he is not being trapped into morality of law cit. supra op. PIAGVr, 9. 91-93. note 5, at Published by Villanova University Charles Widger School of Law Digital Repository, 1965 7

9 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 10: p. 623 VILLANOVA LAW [VoL. REVIEW is true chapter in my final I say all that and admitting further going sound. and this part respect to with that it is say frankly me let Second, Dworkin about the Professor way unhappy most am my book that I of my of review from his extended Let me quote my views. summarizes greater a has legality that argument support the I that book. He says he which by argument part an for in than evil justice for affinity and this requires publication, morality thus: "[I]nternal summarizes legislation. evil by from pursuing fears publicity who a tyrant restrains fear of "the tyrant's concerns argument Later this says he . ... " a peculiar about speaking if I were as sounds This . . ."'0 publicity. by putting them his iniquities to regularize wanted tyrant who of type he them so to know about want the public but didn't statute, in a fellow! most remarkable secret. A statute kept his these statements book in the which passage the quote me Let from summarize: to purport Dworkin's of often been has justice and legality between deep affinity One both, namely, by shared lies in a quality This . . . remarked. law the of morality internal The known rule. by act they that that and made be known, rules, that they there be that demands ad- their with charged those practice by be in observed they so far ethically neutral may seem demands These ministration. as law Yet, just are concerned. of law aims external the as a is rule by known law, so acting good for precondition a is law. the justice of appraisal of any meaningful precondition for in unpre- solely itself expressing power" unlimited lawless "A affairs be could human in interventions and patternless dictable by act it does not sense that in the only unjust be said to specific more any unjust in to it call hard be It would known rule. guided any, if principle, hidden what discovered one until sense conscientiously order of a legal is the virtue It interventions. its the scrutiny public to it exposes that administered and constructed acts." which it rules by refer they saying by that quoted just the words summarize To doesn't then and wicked statutes and mean passes monarch who a to of my simplification certainly a is say, they what know let people polemic of tolerances the go beyond not does it perhaps though thought, however, passed, be cannot judgment generous same The exchange. discussion: of that continuation the consider we when and legality affinity between as if the spoken I far have So made and articulated a rule fact that the in simply consisted justice note 3, at 671-72. Dworkin, 10. supra (1964). Or LAW 157-58 MORALITY TH FULLER, 11. http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 8

10 Fuller: A Reply to Professors Cohen and Dworkin SUMMER 1965] THE MORALITY OF LAW known permits the public judge of to affinity The fairness. its however, has, is man a if deeper Even answerable roots. only to his conscience, own he answer more responsibly will is he if to articulate the principles on compelled which he acts. Many positions occupying persons of power betray in their relations with subordinates uniformities said of behavior that may be to unwritten constitute clear is always rules. It not who those that express these in their rules actions of aware themselves are has It said that them. been most of the world's injustices are inflicted, the elbows. When we but with not with fists, the use fists we our definite purpose and use them for a are we answer- to ourselves for that purpose. to and able others elbows, Our we random comfortably a suppose, may trace which for pattern we are be not even though our neighbor may responsible, pain- aware fully pushed that he is being systematically his from seat. principles of legality commitment to the strong A compels a ruler not only for to answer to himself, his fists, but for his 2 1 well. as elbows which remarks are last These - lost summary Dworkin's in special have a of prosecutor. relevance to the office in It is, the nature the of prosecutor things, for impossible to institute a criminal charge to him. Many whenever any complaint is brought com- ill-founded plaints are or trivial. Furthermore, com- prosecutor the mands only to husband for limited he is resources, which compelled one of those inevitable here There effective use. most their arises compromises length with which I deal at in my book. The pattern of inevitably enforcement extent. rewrites some to code the criminal The conscientious two will ask himself at prosecutor least questions: There discrepancy a is enforced by as law between it the criminal is my if one sat down and read the discern would one pattern and the office drifted I it should be; have than larger Is this discrepancy statutes. into the habit law the criminal revising of carelessly and thoughtlessly? the internal of a question This is intent? deliberate yet, with Or, worse also: Since, in effect, some A arises morality second of law. question revision is in law of the inevitable criminal of process the enforcing have made it, that I can defend? is the revision I one Does it display just legislator would enact a pattern that no This law? explicitly as of the substantive of law, that is, is a question of the external morality law the as compared with the law in books. of action aims in (Obviously, external and internal this case, as they in moralities overlap.) so often do, cit. note supra op. FULLER, 12. 11, at 159. Published by Villanova University Charles Widger School of Law Digital Repository, 1965 9

11 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 623 [VOL. 10: p. LAW REVIEW VILLANOVA As point of one clarification, possible let me say that a debate in of sort this must we distinguish between logical consistency what and may motivational be called affinity compatibility or in pursuit of the similar ends. Suppose I am there told that is a primary teacher grade who loves teach, and to who likes well equally both to teach and bright dull students. exception one The is that he does not to teach like students who are cripples. Now this is a certainly set puzzling dis- of positions; ordinarily we would expect such teacher a take to a special delight helping in child handicapped a to achieve a deeper richer and understanding the world of about him. But there is contra- logical no here; diction one could an out punch card I.B.M. for teacher this that would burn out not transistors any computing a in machine. never I have asserted is that there any logical contradiction in notion the of achieving evil, at least some kinds evil, through of means that fully respect demands the all legality. of On the contrary I recognize "that is possible, it by stretching imagination, the to con- the ceive case evil monarch an of who pursues the most iniquitous ends at but times all a preserves genuine respect for the principles of legality."'" Not only but that, if I were writing a horror about story the immorality that of law, is precisely kind of the I legislator would Crafty, choose. intelligent evil always is interesting more than brute, clumsy destructiveness. It accident was no that Sherlock Holmes' counterpart, Moriarty, almost was as smart Holmes as himself. If been he had numbskull a no would one bought have Conan A. Doyle's books, least not at those dealing with the battle running between Holmes and Moriarty. But we not interested are here in telling a good but tale, in examining prosaic facts the of human life. When we do this agree may we with the implication the subtitle of of Hannah Arendt's the book on Eichmann that it case, is "a report on the banality evil." of evil, Most afraid, I am is terribly uninteresting. Let summarise me the position am now I to trying the defend in used terms I in my first exchange with H. L. A. Hart, terms which Professor Dworkin describes as "epistemological, and entirely myster- 4 ous." 1 My language was to the I effect that believe "that coherence and goodness have more than affinity coherence and evil."'" Pro- If Dworkin fessor found declaration this of an affinity between rationality 13. cit. op. FULLUR, supra note 11, at 154. 14. Dworkin, note 3, supra 672. at FULLtR, 15. Positivism and Fidelity Law - A to to Professor Reply Hart, 71 HAv. L. Rxv. 630, 636 (1958). http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 10

12 Fuller: A Reply to Professors Cohen and Dworkin SUMMER 1965] THE LAW MORALITY OF the starting pleased with be will he scarcely "mysterious" and morality affinity. of this argument place of I shall now in support the present ordered of matter. an arrangement upon depends itself life First, morality Entropy designed to protect and is death. At a minimum, is turn requires that it protect and promote life and this in promote order. in living creatures, Second, most human beings, contrast with extend and magnify of their nerves order the have the capacity to for themselves, by subjecting and muscles by making rules themselves order an to This own of their deliberate creation. created order the possibilities open to human beings, an extension of represents their itself is the most per- existence. an enrichment of Language projected of nor law order. Neither expression vasive this morals would to and project order. capacity create be possible without this let me once more invoke the now In making a third point found figure in the child moral that Piaget. Piaget Dr. of familiar and lines, and take place intellectual capacities develop along parallel demand contemporaneously. the child a faculty for more or less Both of off to an ability to a capacity look, stand and detachment, suspend the situation that is so characteristic emotional involvement in an immediate the earlier This view, to say stage.'" least, suggests at an child the of an and order the one hand, between affinity rationality, on moral and the behavior, other. on by forms beings are united ordering the all which Fourth, human language, the morals, law, thought, conceptual custom, rules of when - work games effectively most Language respect. mutual is there is a social product, forms in an interaction between but it receives its us Each his own special ways of communicating individuals. of has successfully, language. are to communicate we of If using the forms to conform our minds to the ways we must be able others have of understand themselves. we expressing If we would the in them sense we used their language, misunderstanding is in- have intended had on depends a capacity for trans- Understanding evitable. respect and law So we cannot project our views upon morals, self. in and cending without others to understand giving them some opportunity those cannot them for violating rules condemn are left we - views that not be known to them, nor punish them for unpublished or could occurrences about fault or intent. There that came without their and ordered of law, formulated an administered in therefore, is, system respect for human dignity, and I think conscientiously, a certain built-in 105-07. cit. note 5, at supra op. PIAGXT, 16. Published by Villanova University Charles Widger School of Law Digital Repository, 1965 11

13 Villanova Law Review, Vol. 10, Iss. 4 [1965], Art. 5 VILLANOVA 666 LAW REVIEW [VOL. 10: p. 623 is it reasonable to suppose this that respect will tend to carry over into substantive the ends law. of Finally, I would remind you that psychoanalysis is the only therapeutic technique directed toward psychological and "moral" ills that involves real a interaction between healer patient. and The physician who subjects a patient shock to treatment on acts the patient; the analyst acts the with patient. If am I right placing in the emphasis I do on interaction in law in and morals, then psychoanalysis presents a close analogue to law and morals. Indeed, it depends upon contract a between analyst and patient to which both must be faithful. In the opinion Anna of Freud the usual form of psychoanalytic technique cannot applied be to young children because they cannot make, and 7 1 certainly cannot be expected to keep, contract. a applied As to adults, psychoanalytical treatment presupposes a relation reciprocity of be- tween patient and healer, in which each collaborates with the other trying in achieve to greater a degree of clarity (if you will, of "coherence and order") in patient's the conception of himself. With the aid of this increased clarity it hoped is that the patient will be to able rescue himself from dark destructive and impulses. So, in conclusion, I return to the thought Professor Dworkin found so epistemological and mysterious: so I believe order, that coherence, and clarity have an affinity with goodness and moral behavior. More than this I have never said; less than this have I no intention of saying. 17. FREUD, THt PSYCHOANALYTIC TREATMENT OF CHILDREN (1964). http://digitalcommons.law.villanova.edu/vlr/vol10/iss4/5 12

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