Bateman on Radbruch, Fuller, and Hart on the Choice Between Natural Law and Legal Positivism @cg_bateman

C. G. Bateman, University of British Columbia, Faculty of Law, has published There Ought to be a Law: Gustav Radbruch, Lon L. Fuller, and H.L.A. Hart on the Choice Between Natural Law and Legal Positivism at 40 Journal of Jurisprudence 271-329 (2019). Here is the abstract.

In legal philosophy, there is a question that has troubled scholars for at least two centuries: that of how we ought to understand what the law is, in so far as it may be either something which exists on its own apart from any system of morals, legal positivism, or whether law is intrinsically connected to morality, natural law. Whether the view one takes on this question will produce either better or worse results stemming from the professional actions of lawyers, judges, and legal scholars in both domestic and international legal contexts was both passionately contended by Gustav Radbruch (1878-1949), as a once positivist converted to natural law, and hotly debated by Lon Fuller (1902-1978) and Herbert Hart (1907-1992) on behalf of natural law and positivism, respectively. After living through World War 2 and witnessing the horrible crimes against individuals and humanity carried out by the Nazis, Radbruch came to the conclusion that even if a legal system rested on legal certainty and laws equally applied to equals, if it was bereft of justice, the foundation of law, it was no law at all. Radbruch became convinced that how lawyers, judges, and legal scholars answer the question of ‘what is law’ is of central importance because he saw how the blind fidelity of judges and lawyers to the legal system under the Nazis resulted in gross injustices which law was supposed to protect against, not furnish. In this paper I want to both briefly sketch out how this question came to be of such importance in the legal philosophy of Gustav Radbruch, Lon Fuller, and Herbert Hart, and I want to pose the question as to whether or not we are better off, whether better results will follow for society, if we choose to understand law either as dependent on morality or separate from it. I conclude that some via media, some middle way, between the two perspectives offers the best option, for the simple reason that both perspectives teach us essential things about the nature of law, and it would be irresponsible to merely cling to the good things one perspective offers at the expense of the important things we learn from the other.

Download the article from SSRN at the link.