¹ See Hart, , Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958)Google Scholar; Fuller, , Positivism and Fidelity to Law – a Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).Google Scholar

² The debate continued with the subsequent publication of Hart's influential book, The Concept of Law (1961), and Fuller's The Morality of Law (1964, rev. ed. 1969). For Fuller's own description of the various “rounds” in this exchange, see the revised edition of the latter at 188 (“A Reply to Critics”).

³ See MacCormick, , A Moralistic Case for A-Moralistic Law, 20 Valparaiso L. Rev. 1, 9–10, passim; id., H. L. A. Hart (1981), at 159–62.Google Scholar MacCormick's precise argument, which differs somewhat from the above characterization, is quoted below.

⁴ To be sure, Hart did suggest that these moral issues would be clarified by keeping law and morality separate. But that claim falls short of the new moral arguments being advanced on behalf of positivism which predict not just moral confusion, but actual immoral conduct (an undermining of the “sovereignty of conscience”), as the consequence of failing to preserve the distinction. See MacCormick, A Case for A-Moralistic Law, at 10.

⁵ By “conceptual,” I do not mean that the goal is to set out complete conditions for the proper use of “law” or “legal system.” The critical agenda for legal theory, which may be related to this definitional one, is conceptual clarification: probing what we mean by both morality and law in order to see whether the moral claims we make in the name of law are consistent. See note 27, infra. Of course in conducting this enterprise, one may find that one is inevitably engaged in substantive moral argument: i.e., by “conceptual” I do not mean to suggest that a sharp distinction can be drawn between “meta” and substantive inquiries.

⁶ N. MacCormick, A Case for A-Moralistic Law, at 10–11. MacCormick previously advanced this view as a tentative interpretation of Hart's own position, see id., H.L.A. Hart, at 160 (referring to Hart, Concept of Law, at 206). But as the text notes, Hart's arguments were always primarily conceptual, rather than moral. It is not without interest that someone like MacCormick who, with some minor variations, carries on in the positivist tradition of Hart, finds it necessary now to turn to normative arguments to defend that tradition. The discomfort that leads to this turn of events may be due to the inability of the positivist to connect law conceptually with the normative implication that “law” justifies coercion. Compare Soper, P., A Theory of Law (1984).Google Scholar

⁷ MacCormick, H. L. A. Hart, at 162.

⁸ Such automatic compliance could, of course, be due to a conscientiously held moral theory according to which laws were thought always to have overriding moral authority. That would be an incorrect moral theory, but would still qualify citizen Eichmann as conscientious, however wrong. I assume for purposes of the argument that Eichmann's compliance is unthinking and not the result of a moral judgment about either the content or legitimacy of law. It should also be clear that when I describe Gandhi as subjecting the demands of law to the inspection of critical morality, I do not mean to deny that Gandhi's view of critical morality may permit or require compliance with some laws even though Gandhi believes them to be misguided or wrong in their content.

⁹ MacCormick, H. L. A. Hart, at 161. MacCormick makes this point, apparently not to qualify the moral argument for positivism which he accepts, id., at 162, but as a criticism of Hart's failure to recognize that law itself is “in the sense of ‘positive morality’ a moral order.” Id., 160.

¹⁰ See Shuman, S.I., Legal Positivism (1963), at 204–209.Google Scholar For criticism of the claim, see J. Stone, Human Law and Human Justice 253–54 (1965). Professor Stone's discussion of this issue has been valuable to my own thinking and may explain why I share his similarly skeptical conclusions about the attempt to resolve this debate on moral grounds.

¹¹ See Hart, Positivism, at 617–618.

¹² See Stone, Human Law, at 255.

¹³ Fuller's argument relied in part on the example of the German philosopher Radbruch who appeared to undergo a conversion from positivism to natural law as a result of the Nazi experience. But attempts to understand exactly how Radbruch thought this conversion was connected to legal positivism confront a major problem. Radbruch's most significant conversion seemed to have taken place within moral theory. Prior to the conversion, Radbruch's ethical views seemed either highly relativistic (there is no objective way to test the morality of law) or else they gave overwhelming weight to the legal value of certainty over the demands of justice. See generally, Stone, Human Law, at 232–262. It is easy to understand why anyone holding such views might decide such a moral theory was inadequate after witnessing the horrors of Nazism. But there is no explanation here for why this change in moral theory is connected to a change in legal theory. Confusion over the significance of Radbruch's conversion may be in part a reflection of the failure to distinguish between natural law as a moral theory and natural law as a legal theory. See Soper, , Legal Theory and the Problem of Definition, 50 Chi. L. Rev. 1170 (1983).Google Scholar

¹⁴ Fuller, Positivism, at 637.

¹⁵ Nazi Germany's reliance on secrecy does, however, provide some empirical support for Fuller's claim.

¹⁶ For further discussion of the connection between the concept of a court and of a legal system, and of the costs involved in dispensing with courts as the primary justificatory organ, see Soper, A Theory of Law, at 113.

¹⁷ Compare Dworkin, , Taking Rights Seriously (1977), at 345Google Scholar, with Soper, , A Theory of Law, at 181 n. 3.Google Scholar

¹⁸ Cover, Justice Accused (1975).

¹⁹ See Dworkin, , The Law of the Slave-Catchers, Times Literary Supplement, Dec. 5, 1975, p. 1437Google Scholar (review of R. Cover, Justice Accused (1975)).

²⁰ Serious doubts about this part of Dworkin's claim are raised in Greenawalt, , Policy, Rights, and Judicial Decision, 11 Ga. L. Rev. 993, 1050–51 (1977).Google Scholar

²¹ This claim is defended more fully in Soper, A Theory of Law, at 115–117, 129–30.

²² See Morris, , Verbal Disputes and the Legal Philosophy of John Austin, 7 U.C.L.A. L. Rev. 27, 29–31 (1959).Google Scholar

²³ See J. Stone, Human Law, at 255.

²⁴ Id.

²⁵ I talk about the “claims that officials make,” as simply another way of talking about the meaning of “legal obligation” when that phrase is used by persons within a legal system to make demands on others.

²⁶ When I say that no “legal system” makes such a claim, I am making a statement about the typical, modern legal system. I am not attempting to define “legal system” in a way that would force every society to meet certain tests in order to count as “legal.” The goal of legal theory described here is not definition in that sense, but consistency. Anyone who claims to be using “law” in a way that entails moral conclusions, must confront the possibility that he is not using “law” and/or “morality” correctly. Officials or societies who do not use “law” in this way – to connect official directives with moral conclusions – will not face this problem of consistency, but that is not, in my view, the typical posture of officials in the modern state. (Again, I put these views in terms of what “officials claim,” but that is but another way of getting at the meaning of “legal obligation” from the insider's perspective.)

²⁷ Whether this is the claim that officials implicitly make would be difficult to determine empirically because officials, if they think that their laws are just, probably aren't very self-conscious about what they would expect if their moral judgements prove wrong.

²⁸ See MacCormick, A Case for A-Moralistic Law, at 23, 39–40. These passages make clear that even MacCormick is determined to retain some conceptual connection between the idea of legal obligation and a practical moral conclusion – a connection that we cannot simply “choose” to give up.

²⁹ Id., at 26.

³⁰ This was exactly the criticism levelled by positivists at Fuller.

³¹ In deciding whether it is true, one must not make the mistake of thinking that the only task is to check the claims that are made in the name of law with “true” political theory to see if the claims are correct. The persistence of the claim that law (morally) obligates is itself evidence of what we mean by “moral obligation.” Thus one who concludes that no plausible account of “law” can be made consistent with both its primary linguistic sense (which tends to identify law by its official source, rather than its content) and with the moral claims made on law's behalf, must stop to consider whether it is the prevailing moral theory that needs revising. The phenomenon in question (the combination of linguistic and moral claims made about “law”) serves, in short, as pre-analytic data for both an adequate legal and an adequate political theory.