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27 Law & Phil. 1 (2008)

handle is hein.journals/lwphil27 and id is 1 raw text is: Law and Philosophy (2007) 27:1-34 © Springer 2007 DOI 10.1007/s10982-007-9010-x JENNIFER NADLER HART, FULLER AND THE CONNECTION BETWEEN LAW AND JUSTICE* (Accepted 15 March 2007) In The Concept of Law, Hart writes that the history of legal theory is a history of oscillation between extremes. At one extreme are those who treat law as a branch of morality, so that a law's authority depends on its conformity with moral principles. At the other extreme are those who espouse the command and predictive theories of law, the first treating law as the command of a legally unfettered sovereign, the second viewing law as a prophecy of what courts will do. In The Concept of Law, Hart tries to find a middle ground between these extremes by offering a theory of law that is both positivist and normative. It is normative in the sense that it tries to offer an account of legal authority and obligation, but positivist in the sense that it tries to explain law's normativity in terms of something other than its substantive morality. In Positivism and Fidelity to Law, Fuller wrote that Hart's recognition of law's normativity meant that the two had found common ground. They seemed to agree that it is a characteristic feature of law that it makes certain behaviour obligatory, that its purpose is to authoritatively guide human conduct. Once we recognize this, Fuller argued, we have to abandon the idea that there is no necessary conceptual connection between law and morality. Famously, Fuller distinguished between two kinds of morality, one external and one internal to law's purpose. Law, he said, can achieve its purpose of guiding human conduct whether * I wish to thank David Dyzenhaus for his support and helpful com- ments on earlier drafts as well as the University of Toronto Faculty of Law for awarding me a fellowship to develop this project. 1 H.L.A Hart, The Concept of Law (Oxford: Oxford University Press, 1994), p. 8.

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