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Two Puzzles from the Postscript

  • Philip Soper (a1)

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

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H.L.A. Hart , Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958)

Lon Fuller , Positivism and Fidelity to Law—a Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).

N. MacCormick , Herbert L.A. Hart: In Memoriam, 6 Ratio Juris 337 (1993).

P. Soper , Searching for Positivism, 94 Mich. L. Rev. 1739, 1741–44 (1996)

P. Soper , Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L. Rev. 473 (1977)

D. Lyons , Principles, Positivism, and Legal Theory, 87 Yale L. J. 415 (1977)

J. Coleman , Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982).

J. Coleman & B. Leiter , Determinacy, Objectivity, and Authority, 142 U. Pa. L. Rev. 549, 600 [1993].)

L. Fuller , The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616, 628 (1949).

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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
  • URL: /core/journals/legal-theory
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