Philosophy 499
Study questions:  Fuller, "Positivism and Fidelity to Law"


1.  Fuller claims that positivism provides a definition of law that cannot "make meaningful that
        obligation of fidelity to law."  What does he mean by this?  What problem does he think
        positivism has in this regard?

2.  Fuller suggests (p. 70) that Hart's fundamental (or secondary) rules may have an essential
        connection to morality (thus blurring the distinction between law and morality).  Why do
        secondary rules appear to have this connection?

3.  On p. 72 Fuller imagines a case in which we are drafting a new constitution for a country
        "just emerging from a period of violence and disorder."  What point about the "ideal of
        fidelity to law" does he want to illustrate with this example?  Why does he think that Hart's
        positivism has difficulty in this regard?

4.  Hart concludes on p. 73 that "law, considered merely as order, contains, then, its own implicit
        morality."  How does he defend this claim?  Why might it be a problem for positivism?

5.  What conclusion does Fuller come to in discussing the case of the woman who turned her
        husband in to the Nazis?  How does he defend this conclusion, and how does he criticize
        Hart's discussion of the case?

6.  How does Fuller criticize Hart's distinction between the "core" and "penumbra?"

7.  What do you think is the most important problem Fuller raises for Hart's view with regard
        to the distinction (or relation) between law and morals?  How might Hart try to solve
        this problem?