HARVARD LAW REVIEW ol reason for this development is that arbitrators are willing to take into account the needs of commerce and ordinary standards commercial fairness. I realize that Professor Hart repudiates formalism, "but I shall try to show later why I think his theor necessarily leads in that direction. 6 Sixth, in the thinking of many there is one question that pre- dominates in any discussion of the relation of law and morals to the point of coloring everything that is said or heard on the abject. I refer to the kind of question raised by the Pope's pro- nouncement concerning the duty of Catholic judges in divorce actions. This pronouncement does indeed raise grave issues. But it does not present a problem of the relation between lav one hand, and, on the other, generally shared views of right con duct that have grown spontaneously through experience and dis- cussion. The issue is rather that of a conflict between two pro- nouncements, both of which claim to be authoritative; if you will it is one kind of law against another. When this kind of issue is taken as the key to the whole problem of law and morality, the discussion is so denatured and distorted that profitable exchange becomes impossible. In mentioning this last aspect of the dispute about "positivism, "I do not mean to intimate that Professor Hart's own discussion is dominated by any arriere-pensee; I know it is not. At the same time I am quite sure that i have indi cated accurately the issue that will be uppermost in the minds of many as they read his essay. In resting content with these scant remarks, i do not want to seem to simplify the problem in a direction opposite to that taken by Professor Hart. The questions raised by"immoral morality deserve a more careful exploration than either Professor Hart or I have offered in these pages IIL. THE MORAL FOUNDATIONS OF A LEGAL ORDER Professor Hart emphatically rejects "the command theory of law, according to which law is simply a command backed by a force sufficient to make it effective. He observes that such a com mand can be given by a man with a loaded gun, and"law surely e See Hart, supra note 2, at 6o8-12 e N.Y. Times, Nov 8, 1949, p. I, col. 4 (late city ed. )(report of a speech made on November 7, I949 to the Central Committee of the Union of CatholicHARVARD LAW REVIEW reason for this development is that arbitrators are willing to take into account the needs of commerce and ordinary standards of commercial fairness. I realize that Professor Hart repudiates "formalism," but I shall try to show later why I think his theory necessarily leads in that direction.6 Sixth, in the thinking of many there is one question that pre￾dominates in any discussion of the relation of law and morals, to the point of coloring everything that is said or heard on the subject. I refer to the kind of question raised by the Pope's pro￾nouncement concerning the duty of Catholic judges in divorce actions.7 This pronouncement does indeed raise grave issues. But it does not present a problem of the relation between law, on the one hand, and, on the other, generally shared views of right con￾duct that have grown spontaneously through experience and dis￾cussion. The issue is rather that of a conflict between two pro￾nouncements, both of which claim to be authoritative; if you will, it is one kind of law against another. When this kind of issue is taken as the key to the whole problem of law and morality, the discussion is so denatured and distorted that profitable exchange becomes impossible. In mentioning this last aspect of the dispute about "positivism," I do not mean to intimate that Professor Hart's own discussion is dominated by any arriere-pensee; I know it is not. At the same time I am quite sure that I have indi￾cated accurately the issue that will be uppermost in the minds of many as they read his essay. In resting content with these scant remarks, I do not want to seem to simplify the problem in a direction opposite to that taken by Professor Hart. The questions raised by "immoral morality" deserve a more careful exploration than either Professor Hart or I have offered in these pages. III. THE MORAL FOUNDATIONS OF A LEGAL ORDER Professor Hart emphatically rejects "the command theory of law," according to which law is simply a command backed by a force sufficient to make it effective. He observes that such a com￾mand can be given by a man with a loaded gun, and "law surely 6 See Hart, supra note 2, at 608-I2. 7 See N.Y. Times, Nov. 8, I949, p. I, col. 4 (late city ed.) (report of a speech made on November 7, I949 to the Central Committee of the Union of Catholic Italian Lawyers). 638 [Vol. 7I