On Law and Morality: A New Look at the Hart-Fuller Debate from a Classical Perspective

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Kraynak, Robert P.
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2024-04
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While the famous debate between legal scholars H.L.A. Hart and Lon Fuller took place more than a generation ago, the issues involved have not lost their salience. The central question remains—What is the relation of law and morality?—which both Hart and Fuller understood as the relation of “positive law” to an idea of justice known as “natural law.” This article offers a fresh perspective on the debate by explaining the implicit political assumptions and philosophical commitments of the two legal scholars, which most critics have ignored. It also attempts to uncover the missing ingredients in the debate by turning to Aristotle’s insights about the relation of law to political regimes and Aquinas’s analysis of the inherent connections between human law and higher law. These insights are crucial for understanding law’s relation to morality, politics, and ultimate reality, and they reveal the limitations of Hart’s analytical jurisprudence and Fuller’s procedural jurisprudence. II conclude with some contemporary reflections on the relation of positive law to higher law in such areas as human rights advocacy and international law which re-open perennial questions about law and morality. My aim overall is to bring classical ideas into dialogue with modern problems in order to broaden the horizons of legal studies beyond analytical and procedural jurisprudence.
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Creighton University School of Law
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