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Vanderbilt Law Review

First Page

945

Abstract

Professor Hart defends legal positivism and Professor Fuller sets out his view of the natural law. Perhaps it would be more accurate to say that Fuller is against positivism and Hart against natural law. Each is an untypical representative of the varied traditions that bear these names. Each is, at the same time, because of his radical restatement and defense of his positions, probably the most reasonable and least extreme antagonist. In this dialogue, if anywhere, we are likely to discover the true issues and the common ground, if any, between the two positions. In fact each concedes, frankly or by implication,several cardinal points of criticism raised by the other, but holds the points conceded to be of little importance or of little relevance to the fundamental issue as he sees it. Hart concedes much from the traditional position of legal positivism, but holds that this does not affect his main argument. Fuller makes no attempt to defend the traditional natural law positions, popularly associated with a higher law, or a "brooding omnipresence in the skies," and is most careful to establish his position on its own credentials. Ultimately, I shall suggest that the only real issues at stake between Hart and Fuller are the criteria of relevance and importance. The case each makes and the cogency of his case against the other depends ultimately on his definition of law and his view of the meaning of morality, so that, in the last analysis, the argument comes down, as all good philosophical arguments are supposed to, to the view of the nature of man and the universe in which he lives.

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