Question: Fuller writes of Austin: ‘Over and over again he teeters on the edge of an abandonment of the command theory… Yet he never takes the plunge. He does not take it because he had a sure insight that it would forfeit the black-and-white distinction between law and morality that was the whole object of his Lectures…’ (Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” (1958) 71 Harv. L. Rev. 630, p 640).
Does this comment identify a weakness in legal positivism generally?
Answer: “Everything’s got a moral, if you can only find it”, wrote Lewis Carroll . Alice has a sure insight into the beliefs of natural lawyers, but to many positivists she is operating in a wonderland. Morality, according to positivist theories, is distinguished from questions of law. Many argue, however, that this overlooks the fundamental foundations of legal systems and legal validity, which are based not just on law but also on morality....(short extract)
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- Subject: Law
- Course: Jurisprudence
- Level: Degree
- Year: 2nd/3rd
- Mark: 70%
- Words: 2789
- Date submitted: February 10, 2009
- Date written: January, 2000
- References: Yes
- Document type: Essay*
- Essay ID: 701
