Legal Positivism and the Rule of Law: The Hartian Response to Fuller's Challenge
Bibliographic record
Abstract
This study analyses the way that legal positivists from HLA Hart onwards have responded to Lon L Fuller’s challenge to positivism from the idea of the rule of law. The main thesis is that Hart and contemporary legal positivists working in the Hartian tradition have yet to adequately respond to Fuller’s Challenge. I argue that the reason for this is the approach they take to dealing with Fuller’s principles of the rule of law, which either (i) proceeds on the basis of the positivist perspective without engaging with Fuller’s wider anti-positivist arguments, or else (ii) accepts Fuller’s claim that the rule of law is part of our concept of law but does not acknowledge any effect of this on what determines legal validity (the content of legal norms). In both cases, I argue that tensions and problems result from a lack of engagement with Fuller’s anti-positivism. On the one hand, positivists have failed to show why their account of the nature of law better reflects our understanding of law than Fuller’s. On the other, the concessions that positivists have made to Fuller’s arguments are often detached from other elements in their theories, raising the question of whether the positivist response to Fuller is coherent. In addition, by closely analysing the major positivist accounts of the rule of law, this study challenges a number of orthodox interpretations that confuse our understanding of the positivist response to Fuller. I show that most positivists accept that there is something morally valuable about a legal system’s conformity to the principles of the rule of law, and that there is always some kind of at least minimal conformity to those principles in any legal system. By noticing what concessions positivists have made to Fuller’s understanding of the rule of law, I aim to both (i) shift the debate to the remaining disputes with the Hartian positivists, particularly on issues such as the ‘derivative approach’ and the ‘validity Social thesis’, and (ii) identify areas of fruitful engagement with Fuller, such as the question of judges’ moral obligations to law.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.010 | 0.016 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.005 | 0.048 |
| Scholarly communication | 0.009 | 0.011 |
| Open science | 0.001 | 0.004 |
| Research integrity | 0.006 | 0.008 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".