The piece by Fuller is a hypothetical situation based on the sort of historical situation Hart describes in his section IV. That sort of example will be our main focus in this class. As you read it, think where you stand, both regarding this case and the issue between natural law theory and legal positivism that it raises. Hart’s argument for the positivists side has some similarity to points made by Kelsen (in section I of “The Pure Theory of Law and Analytical Jurisprudence”) but he will go on section VI to distance himself from the “non-cognitive” view of ethics that Kelsen espouses.

Although we are unlikely to devote much time to Hart’s points in sections V and VI, they are certainly worth thinking about. In V, he indicates how far he is prepared to go in granting a natural basis for law. Ask yourself if he should go further or if he has already gone too far. In VI, he returns to issues related to the sort of penumbral cases he discussed in section III, but he comes at them from different direction. Think whether you agree with the scope he gives to judicial legislation in what he says there; this will become an important issue when we turn to the views of Ronald Dworkin (who, although on quite different grounds than Fuller’s, argues for something like the view of penumbral cases that Hart finds in Fuller).