r958] FIDELITY TO LAW is not the gunman situation writ large. 8 There is no need to dwell here on the inadequacies of the command theory, since Professor hart has already revealed its defects more clearly and succinctly than I could. His conclusion is that the foundation of a legal system is not coercive power, but certain"fundamental accepted rules specifying the essential lawmaking procedures. 9 When I reached this point in his essay, I felt certain that Pro fessor Hart was about to acknowledge an important qualification on his thesis. I confidently expected that he would go on to say something like this: I have insisted throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised, therefore, as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality. They derive their efficacy from a general acceptance, which in turn rests ultimately on a per ception that they are right and necessary. They can hardly be to be law in the sense of an authoritative pronouncement, since their function is to state when a pronouncement is authorit- tive. On the other hand, in the daily functioning of the legal sys tem they are often treated and applied much as ordinary rules of law are. Here, then, we must confess there is something that can be called a" merger"of law and morality, and to which the term intersection"is scarcely appropriate Instead of pursuing some such course of thought, to my surprise I found Professor Hart leaving completely untouched the nature of the fundamental rules that make law itself possible, and turn- g his attention instead to what he considers a confusion of thought on the part of the critics of positivism. Leaving out of account his discussion of analytical jurisprud ence argument mething as follows: Two views are associated with the names of Bentham and austin. One is the command theory of law, the other is an insistence on the separation of law and mo- ality. Critics of these writers came in time to perceive -"dimly Professor Hart says -that the command theory is untenable By a loose association of ideas they wrongly supposed that in ad- lancing reasons for rejecting the command theory they had also refuted the view that law and morality must be sharply separated This was a"natural mistake, but plainly a mistake just the same 8 Hart, supra note 2, at 603 g IbidFIDELITY TO LAW is not the gunman situation writ large." 8 There is no need to dwell here on the inadequacies of the command theory, since Professor Hart has already revealed its defects more clearly and succinctly than I could. His conclusion is that the foundation of a legal system is not coercive power, but certain "fundamental accepted rules specifying the essential lawmaking procedures." 9 When I reached this point in his essay, I felt certain that Pro￾fessor Hart was about to acknowledge an important qualification on his thesis. I confidently expected that he would go on to say something like this: I have insisted throughout on the importance of keeping sharp the distinction between law and morality. The question may now be raised, therefore, as to the nature of these fundamental rules that furnish the framework within which the making of law takes place. On the one hand, they seem to be rules, not of law, but of morality. They derive their efficacy from a general acceptance, which in turn rests ultimately on a per￾ception that they are right and necessary. They can hardly be said to be law in the sense of an authoritative pronouncement, since their function is to state when a pronouncement is authorita￾tive. On the other hand, in the daily functioning of the legal sys￾tem they are often treated and applied much as ordinary rules of law are. Here, then, we must confess there is something that can be called a "merger" of law and morality, and to which the term "intersection" is scarcely appropriate. Instead of pursuing some such course of thought, to my surprise I found Professor Hart leaving completely untouched the nature of the fundamental rules that make law itself possible, and turn￾ing his attention instead to what he considers a confusion of thought on the part of the critics of positivism. Leaving out of account his discussion of analytical jurisprudence, his argument runs something as follows: Two views are associated with the names of Bentham and Austin. One is the command theory of law, the other is an insistence on the separation of law and mo￾rality. Critics of these writers came in time to perceive - "dimly" Professor Hart says -that the command theory is untenable. By a loose association of ideas they wrongly supposed that in ad￾vancing reasons for rejecting the command theory they had also refuted the view that law and morality must be sharply separated. This was a "natural mistake," but plainly a mistake just the same. 8 Hart, supra note 2, at 603. 9 Ibid. i958] 639