POSITTVISM AND FIDELITY TO LAW A REPLY TO PROFESSOR HART Lon L. fuller Rephrasing th onof“ law and morals”" in terms of“ order and good order criticizes Professor H. L. A. Hart for of order"necessary to the creation of all law. He then rejects Professor Hart's theory of statutory interpretation on the ground that wee seek the objectives of entire provisions rather than the meanings of individual words which are ave Pt RoFESSOR hART has made an enduring contribution to the literature of legal philosophy. I doubt if the issues he dis- cusses will ever again assume quite the form they had before be- ing touched by his analytical powers. His argument is no mere restatement of Bentham, Austin, Gray, and Holmes. Their views receive in his exposition a new clarity and a new depth that are I must confess that when i first encountered the thoughts of Professor Hart's essay, his argument seemed to me to suffer from a deep inner contradiction. On the one hand, he rejects emphat- ically any confusion of“‘ what is”with“ what ought to be.”He will tolerate no "merger"of law and conceptions of what law ought to be, but at the most an antiseptic "intersection. Intelli gible communication on any subject, he seems to imply, becomes 4 possible if we leave it uncertain whether we are talking about hat is”or“ what ought to be.” Yet it was precisely this uncer- tainty about Professor Hart's own argument which made it diffi- cult for me at first to follow the thread of his thought. At times saying that the distinction between law and morality is something that exists, and will continue to exist, how ever we may talk about it. It expresses a reality which, whethe we like it or not, we must accept if we are to avoid talking non- ense. At other times, he seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a"precious moral Carter Professor of General Jurisprudence, Harvard Law School. A B, Stan ford, I924, J D, I926POSITIVISM AND FIDELITY TO LAW￾A REPLY TO PROFESSOR HART Lon L. Fuller * Rephrasing the question of "law and morals" in terms of "order and good order," Professor Fuller criticizes Professor H. L. A. Hart for ignoring the internal "morality of order" necessary to the creation of all law. He then rejects Professor Hart's theory of statutory interpretation on the ground that we seek the objectives of entire provisions rather than the meanings of individual words which are claimed to have "standard instances." ROFESSOR HART has made an enduring contribution to the literature of legal philosophy. I doubt if the issues he dis￾cusses will ever again assume quite the form they had before be￾ing touched by his analytical powers. His argument is no mere restatement of Bentham, Austin, Gray, and Holmes. Their views receive in his exposition a new clarity and a new depth that are uniquely his own. I must confess that when I first encountered the thoughts of Professor Hart's essay, his argument seemed to me to suffer from a deep inner contradiction. On the one hand, he rejects emphat￾ically any confusion of "what is" with "what ought to be." He will tolerate no "merger" of law and conceptions of what law ought to be, but at the most an antiseptic "intersection." Intelli￾gible communication on any subject, he seems to imply, becomes impossible if we leave it uncertain whether we are talking about "what is" or "what ought to be." Yet it was precisely this uncer￾tainty about Professor Hart's own argument which made it diffi￾cult for me at first to follow the thread of his thought. At times he seemed to be saying that the distinction between law and morality is something that exists, and will continue to exist, how￾ever we may talk about it. It expresses a reality which, whether we like it or not, we must accept if we are to avoid talking non￾sense. At other times, he seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a "precious moral * Carter Professor of General Jurisprudence, Harvard Law School. A.B., Stan￾ford, 1924, J.D., 1926. 630