Lon L. Fuller
Appendix to the morality of Law (New Haven, Yale University Press, 1969)
By a narrow margin you have been elected Minister of Justice of your country, a nation of some twenty million inhabitants. At the outset of your term of office you are confronted by a serious problem that will be described below. But first the background of this problemmust be presented.
For many decades your country enjoyed a peaceful, constitutional and democratic government. However, some time ago it came upon bad times. Normal relations were disrupted by a deepening economic depression and by an increasing antagonism among various factional groups, formed along economic, political, and religious lines. The proverbial man on horseback appeared in the formof the Headman of a political party or society that called itself the Purple Shirts.
In a national election attended by much disorder the Headman was elected President of the Republic and his party obtained a majority of the seats in the General Assembly. The success of the party at the polls was partly brought about by a campaign of reckless promises and ingenious falsifications, and partly bythe physical intimidation of night-riding Purple Shirts who frightened many people away from the polls who would have voted against the party.
When the Purple Shirts arrived in power they took no steps to repeal the ancient Constitution or any of its provisions. They also left intact the Civil and Criminal Codes and the Code of Procedure. No official action was taken to dismiss any governmentofficial or to remove any judge from the bench. Elections continued to be held at intervals and ballots were counted with apparent honesty. Nevertheless, the country lived under a reign of terror.
Judges who rendered decisions contrary to the wishes of the party were beaten and murdered.
The accepted meaning of the Criminal Code was perverted to place political opponents in jail. Secretstatutes were passed, the contents of which were known only to the upper levels of the party hierarchy. Retroactive statutes were enacted which made acts criminal that were legally innocent when committed. No attention was paid by the government to the restraints of the Constitution, of antecedent laws, or even of its own laws. All opposing political parties were disbanded. Thousands of politicalopponents were put to death, either methodically in prisons or in sporadic night forays of terror. A general amnesty was declared in favor of persons under sentence for acts "committed in defending the fatherland against subversion." Under this amnesty a general liberation of all prisoners who were members of the Purple Shirt party was effected. No one not a member of the party was released under theamnesty.
The Purple Shirts as a matter of deliberate policy preserved an element of flexibility in their operations by acting at times through the party "in the streets," and by acting at other times through the apparatus of the state which they controlled. Choice between the two methods of proceeding was purely a matter of expediency. For example, when the inner circle of the party decided toruin all the former Socialist-Republicans (whose party put up a last-ditch resistance to the new regime), a dispute arose as to the best way of confiscating their property. One faction, perhaps still influenced by prerevolutionary conceptions, wanted to accomplish this by a statute declaring their goods forfeited for criminal acts. Another wanted to do it by compelling the owners to deed theirproperty over at the point of a bayonet. This group argued against the proposed statute on the ground that it would attract unfavorable comment abroad. The Headman decided in favor of direct action through the party to be followed by a secret statute ratifying the party's action and confirming the titles obtained by threats of physical violence.
The Purple Shirts have now been overthrown and a...