ethical positivism in law.In his 1940 Rosenthal Lectures,Fuller suggested,first,that decrees such as those of the Nazis were not binding law,because the conditions of human coexistence ceased to exist for most of the citizenry.40 Second,he argued that there is no sharp distinction between the“is”and“ought'in law.4 Both sug- gestions show up nine years later in the opinion of Justice Foster. Accordingly,one reason that Foster gives for acquitting the de- fendants is that the positive law ceased to apply to them when they were thrust back into a"state of nature"by their entrapment in the cave: Whatever particular objects may be sought by the various branches of our law,it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common.When the assumption that men may live together loses its truth,as it obviously did in this extraordinary situation where life only became possible by the taking of life,then the basic premises underlying our whole legal order have lost their mean- ing and force.42 Under pure natural law,Foster asserts,the defendants acted out of necessity and were "guiltless of any crime"as a result.4s Foster asserts a second and independent reason for voting to ac- quit,one more subtly echoing natural-law influences.Even conced- ing that the explorers'conduct "violates the literal wording of the statute,"he argued that one"may break the letter of the law without breaking the law itself"and that a law must"be interpreted reason- ably,in the light of its evident purpose."44 To a reader of the 1920s and 1930s,Foster's statement would have been an uncomfortable echo of the natural law in Holy Trinity,with Foster's rejection of the law's“letter''for the law's“purpose”(a seeming euphemism for Ho的y Trinity's“spirit'").Could the invocation of a“℃hristian nation” be far behind?By the late 1940s,readers would have been more comfortable with Foster's second argument,whose intellectual background and relationship to his first argument I shall now ex- plore in detail. II.After the Positivism/Natural Law Debate:The Case of the Speluncean Explorers and the Legal Process Synthesis, 1940-1958 American law faced an intellectual crisis on the eve of World War II.Formalist theories of law,like those of Newgarth's Justice Keen, were vulnerable to realist attacks concerning their objectivity.On the other hand,realist theories,like the view of Justice Handy that 40.See FULLER,supra note 38,at 122-25. 41.Id.at4-15. 42.Fuller,supra note 1,at 621 (opinion of Foster,J.). 43.1d. 44.Id.at 624.To support his interpretation of the law's purpose,Justice Foster invokes the exception to murder statutes for self-defense.Id.at 624-25. 1738 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1738 1992-1993ethical positivism in law. In his 1940 Rosenthal Lectures, Fuller suggested, first, that decrees such as those of the Nazis were not binding law, because the conditions of human coexistence ceased to exist for most of the citizenry.40 Second, he argued that there is no sharp distinction between the "is" and "ought" in law.4' Both sug￾gestions show up nine years later in the opinion of Justice Foster. Accordingly, one reason that Foster gives for acquitting the de￾fendants is that the positive law ceased to apply to them when they were thrust back into a "state of nature" by their entrapment in the cave: Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their mean￾ing and force.42 Under pure natural law, Foster asserts, the defendants acted out of necessity and were "guiltless of any crime" as a result.45 Foster asserts a second and independent reason for voting to ac￾quit, one more subtly echoing natural-law influences. Even conced￾ing that the explorers' conduct "violates the literal wording of the statute," he argued that one "may break the letter of the law without breaking the law itself" and that a law must "be interpreted reason￾ably, in the light of its evident purpose." 44 To a reader of the 1920s and 1930s, Foster's statement would have been an uncomfortable echo of the natural law in Holy Trinity, with Foster's rejection of the law's "letter" for the law's "purpose" (a seeming euphemism for Holy Trinity's "spirit"). Could the invocation of a "Christian nation" be far behind? By the late 1940s, readers would have been more comfortable with Foster's second argument, whose intellectual background and relationship to his first argument I shall now ex￾plore in detail. II. After the Positivism/Natural Law Debate: The Case of the Speluncean Explorers and the Legal Process Synthesis, 1940-1958 American law faced an intellectual crisis on the eve of World War II. Formalist theories of law, like those of Newgarth's Justice Keen, were vulnerable to realist attacks concerning their objectivity. On the other hand, realist theories, like the view of Justice Handy that 40. See FULLER, supra note 38, at 122-25. 41. Id. at 4-15. 42. Fuller, supra note 1, at 621 (opinion of Foster, J.). 43. Id. 44. lId at 624. To support his interpretation of the law's purpose, Justice Foster invokes the exception to murder statutes for self-defense. Id. at 624-25. 1738 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1738 1992-1993