The Sources of Law

For years now, Lon Fuller, Carter Professor of General Jurisprudence in the Harvard Law School, has been insisting that the question, what is law, can be answered only in terms of the purpose of law, and that the purpose has something to do with man’s nature. Writing several years ago in the Journal of Legal Education, Fuller said that he could not “see what standard there can be for passing ethical judgments if it is not that which is in keeping with man’s nature as it would be if it were able to resolve its disharmonies and to surmount its imperfections.” It is generally correct to say that Fuller has been defending natural law against legal positivism and analytical jurisprudence, the kind of legal theory that sees law as merely ‘the existence of public order’ without asking what kind of order is meant or how it is brought about.”

In 1940, in his justly praised work, The Law in Quest of Itself, he traced legal positivism to Hobbes and his doctrine of sovereignty, and showed how this doctrine led Hobbes’s successors to devote themselves to questions that assumed an importance for legal theory, but had nothing whatever to do with the issues that arise in law. Legal theory became abstract; it became abstracted from any legal (or political) relevance, a disease from which much of it still suffers. Fuller then divided modern positivists into two groups, the legal realists, represented by John Chipman Gray, and a second group represented and dominated by Hans Kelsen.

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Walter Berns

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For years now, Lon Fuller, Carter Professor of General Jurisprudence in the Harvard Law School, has been insisting that the question, what is law, can be answered only in terms of the purpose of law, and that the purpose has something to do with man’s nature. Writing several years ago in the Journal of Legal Education, Fuller said that he could not “see what standard there can be for passing ethical judgments if it is not that which is in keeping with man’s nature as it would be if it were able to resolve its disharmonies and to surmount its imperfections.” It is generally correct to say that Fuller has been defending natural law against legal positivism and analytical jurisprudence, the kind of legal theory that sees law as merely ‘the existence of public order’ without asking what kind of order is meant or how it is brought about.”

In 1940, in his justly praised work, The Law in Quest of Itself, he traced legal positivism to Hobbes and his doctrine of sovereignty, and showed how this doctrine led Hobbes’s successors to devote themselves to questions that assumed an importance for legal theory, but had nothing whatever to do with the issues that arise in law. Legal theory became abstract; it became abstracted from any legal (or political) relevance, a disease from which much of it still suffers. Fuller then divided modern positivists into two groups, the legal realists, represented by John Chipman Gray, and a second group represented and dominated by Hans Kelsen.