1939 Professor Fuller wrote, in reviewing Hall's Readings in Jurisprudence: Often what an author "stands

for" is much less important than how he got to where he is standing; the negative side of a man's work,
his critique of opposing views, is often-perhaps usually-more important than his affirmations. 4 The next
year Professor Fuller presented the negative side of his own work, a lucid critique of the influence of
positivist theories on American law.5 Tracing the history of positivist theories from English philosopher
Thomas Hobbes through the so-called American Legal Realists and the Vienna School of Hans Kelsen,
Fuller argues that legal positivism is intellectually unsound and that its teachings have disastrous
practical results for society. English Positivism Legal positivism developed in England 2 FULLER, THE LAW
IN QUEST OF ITSELF (1940). " Ward, supra note 1, at 116. 4 Fuller, Book Review, 87 U. PA. L. REV. 625-26
(1939). S FULLER, op. cit. supra note 2. as a result of the law's quest for an exclusive hegemony of its own
where it could be free from the complications of ethics and philosophy., Hobbes believed that the prime
objective of law was to achieve peace and order in society. Ethics and philosophy complicated things by
supplying reasons for ignoring or disobeying the law. Because the interests of men tended to conflict,
and because resort to reason was unable to bring about the requisite peace and order in society,
sovereign authority had to be the dominant influence in society. This authority resided in the king or
protector, and the rules of the sovereign for settling disputes were the law. According to Hobbes' theory,
the law was supreme and men had to blindly obey regardless of personal belief.'. Hobbes, however, did
not entirely abandon reason. Ideally, the sovereign was to follow it and enact reasonable legislation. But
if the sovereign were unreasonable, and enacted an unjust law, the reasonable man would be expected
to obey the law in the interests of peace and order." Thus, public order would replace justice as the
ultimate criterion of law. About a century later, John Austin agreed with Hobbes that the starting point
for law could not be that which is right or just. This would be "cut-throat science" leading to social
upheaval.0 It was the sovereign that gave coherence to the legal system and offered a clear-cut
definition of law. Therefore, Austin defined law as the command of the state. In Austin's opinion,
however, Hobbes had oversimplified the 6 Id. at 16-17. 7 Id. at 19-25, 86-87. 3 Ibid. . Fuller, American
Lggal Philosophy at MidCentury, 6 J. LEGAL ED. 457, 459-60 (1954). nature of the sovereign. Austin
wanted to identify the sovereign precisely. Once he had located the sovereign, he felt that he would have
the essence of law and thereby pinpoint the unifying force in law. Austin found it difficult to locate the
sovereign, however, because the system of checks and balances had complicated the structure of the
state. How to explain law laid down by judges independent of the king? To Hobbes, the judge was the
agent of the sovereign, and the ruler adopted the judge's decision as his own. Austin could not accept
this answer; it was more metaphor than actual fact. Austin, therefore, redefined the sovereign as that
person or group of persons which society was in the habit of obeying. Thus, Austin rested the
foundations of the legal order on habit or custom.1 0 Professor Fuller notes that instead of solving the
theoretical problems raised by Hobbes' analysis of the law, Austin's development raises more
embarrassing questions. Suppose, the bulk of society ceases to render obedience to law - what happens
to the sovereign? Suppose certain commands of the sovereign are occasionally ignored - is the ignored
command still law? Suppose the sovereign issues contradictory commands - which one is the law?
Suppose the sovereign declares that his power is legally limited, for example, by a two-thirds vote of the
populace -is the real sovereign power in the people? Finally, the most difficult question of all - suppose
there -are gaps in the law? Doesn't every gap represent a possible point of entry for ethics and
philosophy, the very complication that Hobbes and Austin were trying to eliminate from the - Ibid.
[Link], Op. cit. supra note 2, at 26-31. 11 CATHOLIC LAWYER, SPRING 1965 law?11 One answer to this
last question is that there really are no gaps in the law of the sovereign. What the sovereign has not
forbidden he implicitly permits. This answer is typical of the fantasy that Austin's theory had led him
into. Professor Fuller points out that in defining the law in terms of its source (the sovereign) the
positivists had one advantage. They could point to a statute or a command and say, "This is law." What
the sovereign does is clear; it makes positivism possible. But a question that remained unresolved in the
theories of Hobbes and Austin was the precise identity of the sovereign. Fuller asks: Is it (the sovereign)
a real thing, a datum of nature existing apart from men's thinking? Or is it merely a way of viewing the
world of possible legal phenomena? Is it an actuality, or a metaphor? 12 Austin's writings were tinged
with ambiguity on this point, 3 and anxious to clear up the problem, Austin's philosophical heirs diverged
along two lines: the "realists," and the "pure law" theorists.14 In America and Europe a school of legal
"realists," enamoured with the scientific method, abandoned the metaphorical sovereign of Hobbes and
the ephemeral custom of Austin, and rested the basis of law on a more concrete datum of nature. They
sought law in external reality just as the physicist seeks physical laws in the laboratory experiment. They
wanted a law easily identified and purified of ethics and morality.15 In Vienna, another school
developed. 11 FULLER, Op. cit. supra note 2, at 33-38. 1 Id. at 45. ,Id. at 46. 14 Id. at 46-47. 1 Id. at 46-47,
53. FULLER Hans Kelsen saw the futility of founding law either in the sovereign or custom or other datum
of nature. Kelsen believed in an ideal of pure law - purified of morality which he called "wish law."' 6
Realizing, however, that this pure law could not be founded in a datum of nature, he was bold enough to
base his pure law on a simple methodological assumption. 7 A merican Positivism Professor Fuller,
concerned principally with legal positivism as it has affected the American scene, concentrates his
critique of legal positivism primarily on the American legal realists. The more prominent members of this
school include John Gray, Oliver Wendell Holmes, Joseph W. Bingham, Walter Wheeler Cook, Karl N.
Llewellyn, Jerome Frank, W. Underhill Moore and Edwin W. Patterson. John Chipman Gray, in his Nature
and Sources of Law, abandoning Austin's criteria of custom, reverted to Hobbes' sovereign, utilizing
however, a more scientific approach. He held that the sovereign was not a "determinate" group of
persons but a shifting and anonymous body. The state was an artificial unity; the real unifying principle in
the practice of an attorney was the judge, a flesh and blood reality. Here was a concentration of power in
a definite human being. The law was, therefore, defined as "the rules laid down by the courts."' 6
Professor Fuller points out that Gray has not yet answered all the questions. What about the
"inconsiderate" sovereign - two judges at odds with each other who hand down contrary opinions? And
sup1 Id. at 5. 17 Id. at 47. 1,1 Id. at 49. pose that when a number of judges are sitting in judgment on a
case that the "majority" lays down a decision. A majority is a corporate entity, and the flesh and blood
reality that the "realists" had found in the judge-made rule is lost. Gray ended up with the same problem
that Austin never solved - trying to identify the sovereign.' 9 Oliver Wendell Holmes had reservations of
his own about Gray's definition of law as "the rules laid down by the court." He saw that what judges say
is different from what judges do. Holmes suggested that the definition of law should be the rules acted
on by courts. This tendency of the realists in the direction of increasing realism was taken up by
Bingham, Cook, Llewellyn and Frank. Agreeing with Holmes, they defined law in terms of the patterns of
judicial behavior. Law was a generalization of the way judges act. Just as the behavior of atoms was the
concern of the physicist, so the behavior of judges was the concern of the lawyer. 2 Why, asks Professor
Fuller, stop at the behavior patterns of judges? What about the behavior of commissioners, the sheriff
and the sanitary inspector? These officials make rules that affect us- ones that they talk about and then
act on. Wouldn't every state official have to be included within the realist schema? 21 Professor
Underhill Moore took the behavioristic approach one step further. He held that law was determined by
"institutional patterns of behavior.' " 2 2 Banking Law, for example, would be determined 19 Ibid. 201d.
at 51-53. 21 Id. at 53. 22 Fuller, American Legal Realism, 82 U. PA. L. REV. 429, 453 (1934). in part by the
observed behavior patterns of bank tellers. Professor Fuller objects to Moore's behavioristic approach.
He points out that behavior is often the expression of underlying mental attitudes, and that an analysis
of these attitudes of mind involves more than the mere rationalization of behavior.2 3 Moreover,
regularities of behavior do not always provide the norm of the pattern. Often it is the unusual case that
provides the norm because in such a case, the mental attitude behind the pattern is shown. It is not the
behavior itself, but the purpose behind the behavior that is important to the lawyer and judge. For
judges to simply search out and catalogue the habits of bank tellers is to make the bank teller the judge
instead of the man sitting on the bench.2 4 Finally, Professor Fuller asks, even if behavior patterns are
the basis of law, how are judges to know these behavior patterns in deciding cases? Can these patterns
be observed and recorded?25 Is there some way that judges' attitudes and ideas are moulded by a
cultural matrix whose patterns are engraved by frequency? How does a judge get to know all the
patterns of activity of bank tellers?26 Fuller suggests that the realists' insistence on law as a behavior
pattern is reliance on an even greater phantom than Austin's sovereign. 27 Kelsenianism Hans Kelsen
reacted against absurdities implicit in the theories of the legal realists and their Austinian forebears. He
believed in the positivist ideal- purifying the law 3 Id. at 455. '4 Id. at 457-58. FULLER, op. cit. supra note
2, at 57. _0 Fuller, supra note 22, at 459. - FULLER, op. cit. supra note 2, at 59. 11 CATHOLIC LAWYER,
SPRING 1965 of the complications of ethics and morality and of every non-legal influence. He could not
accept, however, the realist approach to this ideal. The realists were trying to separate the law that is
(the "pure law" datum of nature) from the law that ought to be (ethics and morality). Yet realism yielded
no useful test of this law that is. Ultimately, every kind of behavior pattern was law. There was no
standard behavior that was not law, i.e., mis-behavior. Besides, the study of behavior was not properly
legal study at all. 28 Going back to Austin, Kelsen saw that the English jurist was begging the whole
question by assuming that the sovereign was the essence of law. Kelsen asked, if the sovereign defines
what is law, how do we define and describe this sovereign except by a prior legal order that the
sovereign admittedly does not enact? 29 Isn't the very sovereign who defines a law, brought into
existence and delimited by some pre-existing procedural law which places the law-making power in the
hands of the sovereign in the first place? Law then becomes law in virtue of rules that are not "law.."30
Kelsen pushed his search for "pure law" to its logical conclusions. He saw that the search for the
sovereign begun by Austin and continued by the realists ended in absurdity. Yet Kelsen believed that
Austin's sovereign served a good purpose. The sovereign prevented ethics and morality from
complicating the law. Thus, Kelsen retained the purpose for which the sovereign existed and rejected the
search for the sovereign in any flesh and blood reality. Kelsen, therefore, carefully analyzed the 28 Id. at
66-69. 29 Id. at 81. 30 Fuller, supra note 9, at 460-61. FULLER purpose that the sovereign served,
adopted the minimum of assumptions necessary to accomplish this purpose and set these assumptions
down in a sort of charter. His law was not, therefore, founded in any flesh and blood reality like the
sovereign or judicial behavior, but rather upon a fiction - a methodological premise. Kelsen whittled his
starting point down to a minimum of metaphor. He made an honest fiction out of positivismA1 Instead
of the sovereign of Austin or judicial behavior patterns of the realists, Kelsen substituted the idea of the
"basic norm." Professor Fuller points out that Kelsen's theory of the "basic norm" admits that one must
accept at least one pre-existing rule governing the law-making process before the law-making process
itself can get started. The basic norm, being expressed in the singular, reduces this indispensable starting
point to an ideal but fictitious minimum.32 Professor Fuller concludes that though realism and
Kelsenianism commence in opposite directions, they terminate with much in common. Both reject the
unreal sovereign of Austin. Both see that as soon as the law tries to become "scientific" the road forks
sharply, one branch leading to the realm of pure fact (the realists), the other leading to the realm of pure
assumption (Kelsenianism). Each takes a different branch and is determined to follow it logically and
uncompromisingly. Each reaps the results of its own limitation of method . 3 Separation of "Is" and
"Ought" Professor Fuller is not interested in mak31 FULLER, op. cit. supra note 2, at 69-75. '1 Fuller,
supra note 9, at 461. 33 FULLER, op. cit. supra note 2, at 76. ing a critique of legal positivism for
criticism's sake. His critique of positivism is more a by-product of his unrelenting quest for the underlying
assumption of the law and legal theories. He has called his quest a rationalistic one. In pushing reason as
far as he can, Fuller sees the purpose of legal philosophy as a quest for those principles that make
possible the successful living together of men.34 He sees the basic task of the lawyer as a search for
truth and justice'--finding ways by which people can live and work together successfully.-" The task of the
lawyer goes on in a dynamic social order, and law must be able to respond to ever changing situations."
The ideal is a just social order, and the law must always struggle to approach this ideal. Professor Fuller
sees the quest of the positivist as stopping precariously short of the goal of law. Positivism does not seek
to promote ethical or moral or social goals for society. A positivist is fearful of ethics and morality which
he believes confuse and distort the law. Positivism claims to have discovered the raw datum of law-the
basic fact of law beyond which ethical research is useless2 8 The first principle of positivism is this: law
can be discovered, sought out, examined and defined3 1 It is not the expression of the non-existent ideal
of justice. In any given rule of conduct there is a basic distinction between what is in fact the law, and
what that law ought to be. Therefore, the 31 Fuller, On Teaching Law, 3 STAN. L. REV. 35, 46 (1950). 35
Fuller, Objectives of Legal Education, 2 RECORD OF N.Y.C.B.A. 120, 121 (1947). 36 FULLER, THE
PROBLEMS OF JURISPRUDENCE 694 (1949). 13 FULLER, op. cit. supra note 2, at 121. :18 Id. at 109. : 9
Fuller, supra note 4, at 627. task of the legal philosopher is to give the principles for making this
distinction, and the task of the lawyer is to find out what the law actually is.4° Austin's positivism meant
something set (positus) by the human will of the sovereign;4' therefore, the law that is was found in the
expressed will of the sovereign. The realists, as stated previously, ultimately located the law that is in the
behavior patterns of judges. Others who fall into the general classification of positivists either hold that
the law that is can be found in some observable phenomena, or hold with Kelsen, that the law that is is
not found in the observable, but is located in a methodological premise. Professor Fuller's argument with
positivism goes much deeper than occasional objections to the particular theories of Austin, Kelsen and
the legal realists. Fuller attacks positivism at its very core. He takes the basic premise of the positivists-
the striving for a complete separation of the is and the ought in law-and shows first that it cannot be
justified in terms of reality. He thereafter points out in example after example how this attempted
separation leads to disastrous consequences in practice. The thesis that has dominated Professor Fuller's
writing over the years is the inseparability of is and ought in the law. In 1940 he wrote: "In the field of
purposive human activity, which includes.., the law, value and being are not two different things, but two
aspects of an integral reality. '4 2 Sixteen years after the above was written, Professor Fuller was still
making the same point: 40 FULLER, op. cit. supra note 2, at 4-6, 55-56, 60-61. 41 Fuller, supra note 4, at
627. 42 FULLER, op. cit. supra note 2, at 11. II .CATIOLIc LAWYER, SPRING 1965 The problem I have in
mind is that which arises when we attempt to reconcile the now generally accepted dichotomy of fact
and value with a purposive interpretation of human behavior. For it is my thesis that when we accept the
full consequences that flow from a view which treats human action as goal-directed, the relation
between fact and value assumes an aspect entirely different from that implied in the alleged "truism"
that from what is nothing whatever follows as to what ought to be . 43 Professor Fuller always brings his
thesis down to the concrete test of its soundness. In simple examples he shows that what the law is
cannot be separated from what it is for, and what it is for cannot be separated from what it ought to be.
A judge, for example, cannot properly interpret a law without considering its purpose. Positivists have
tried to argue that words have a core of meaning and that this core is enough for the judge to work with.
Fuller poses the case of a statute which excludes "vehicles" from parks, and then asks if such a law would
exclude a truck used in World War II mounted on a pedestal as a memorial.44 One cannot interpret a
word in a statute without knowing the aim of the statute. Suppose a statute reads: "All improvements
must be promptly reported to. .. ." Notice how the meaning of "improvements" changes when you fill in
"to the head nurse," or "to the town planning authority." The word "improvements" has no extra-legal
standard that helps interpretation here. We know what the rule is only in the light of what the rule ought
to be.45 43 Fuller, Human Purpose and Natural Law, 3 NATURAL L. F. 64, 68 (1958). 44 Fuller, Positivism
and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630, 661-63 (1958). I' Id. at 664-66.
FULLER In another example, Professor Fuller supposes that an engineer, awkward in English, drafts
instructions for the assembly of a machine. A professor of English and a mechanic both read and follow
the instructions. The professor applies the words of the instructions in their literal sense and gets into
trouble. The mechanic hardly notices the literal meaning and looks to what the engineer was trying to
say. He assembles the machine easily. The professor was refraining from "value judgments" and kept the
distinction between is and ought. But Fuller asks, who penetrated most truly to the empirical fact of
these instructions, the professor of English or the mechanic?" Positivism makes the rigid distinction
between is and ought in order to promote clear thinking in law. But Fuller asks if clarity in legal
discussions is really advanced by this sharp distinction. The drawing of distinctions is not an activity that
can be an end in itself. Fuller facetiously supposes that one might write a long treatise on the sharp
distinction between pie and cake "disposing definitively of all the hard borderline cases, like Boston
cream pie and upside-down cake. .. ." Nor is it an answer to say that the distinction between is and ought
involves the distinction between law and morality, that these concepts are important, and therefore
must be distinguished. Is it important to distinguish pie and cake because they deal with the important
subject of human nutriment? The question is, whether drawing the sharp line is important. Does making
this distinction really dispel confusion? Does it really help?48 a1 Fuller, supra note 9, at 469. 47 FULLER,
op. cit. supra note 2, at 86. 4S Id. at 85-89. When Professor Fuller rejects the positivist attempt to
exclude ought from the law by making an absolute distinction between is and ought, he does not deny
that there is some legitimate distinction between fact and value, and that it can be useful. Fuller's point
is that the absolute distinction cannot be made the basic premise of any legal philosophy because it is
not in accord with basic reality in which the is and the ought are both present. One cannot confine one's
study to the is in the law and exclude the ought. Both are part of an integral reality. The distinction
between is and ought may be useful for analytical purposes, but it cannot be assumed as a starting
point."' In other words, the analysis of law must begin with experience, not self-imposed abstraction.
One cannot separate the inseparable; and the positivist attempt to make such a separation leads to
unfortunate results. The attempt to eliminate the ought from the law has tremendous implications in the
life work of the judge, the lawyer, the professor and student of law and the legal scholar. 50 The judge:
Shall he be faithful to existing law, or assume a more creative role? Suppose he has impulses toward
reform? Can he improve a tradition while transmitting it?' Not as a positivist. The lawyer preparing a
brief: Shall he argue the letter or the spirit of the law? Shall he argue the rights of his client or the
rightness of the case? 52 Positivism dismisses the argument of "rightness." 4' Id. at 7-12; Fuller, supra
note 22, at 451-52. 5 FULLER, op. cit. supra note 2, at 2-4. Id. at 12; Fuller, supra note 44, at 646-47.
FULLER, THE LAW IN QUEST OF ITSELF 12 (1940). The professor: How shall he teach? Will he ignore the
ethical foundations of the law -the law that ought to be?53 He will as a positivist. The student: Shall he
seek the professor who expounds "the existing law," or the one who delves into the "shifting ethical
background of the law?" '54 A positivist seeks the law that is. The scholar: Shall his legal writing state the
law or his ideas of what the law ought to be?55 Ought is outside the realm of positivism. Positivism, in
taking creativity (oughtness) out of law, tends to reduce law to a pure science., Thus, positivism fails to
give a profitable and satisfying direction to the creative application of human energies in the law. It
defeats the very function of legal philosophy-to decide how the lawyer may best spend his professional
life.57 Ideally, the administration of a legislative or decisional rule is a process by which the rule is
enabled, through the constant purposive reinterpretation of judges in varying factual situations, to
become more and more what it ought to be. Positivism, in excluding purpose or oughtness, deliberately
takes the striving for perfection out of the law. The law, instead of growing and reproducing itself anew
in each fresh factual situation, remains sterile.58 Positivism is scientific. It seeks to extract the law that is,
leaving to politics or some other discipline the law that ought to be. In failing to say anything significant
about the content and purpose of law, positivism loses its capacity to say anything at all 53 Id. at 13-14.
54 Id. at 15. 5a Id. at 14, 38-39. 56d. at 91. 57 Id. at 2. 58 Id. at 88-89, 99. 11 CATHOLIC LAWYER, SPRING
1965 about specific rules of law or specific problems of legislation or decision. Positivism, in becoming a
pure science, ends up by confining itself to terminological disputes. 59 Professor Fuller cites some
examples as evidence of the sterility and formalism of positivism. (1) The notes on recent cases
published in the various law reviews in the nation and written by law students reflect a good cross
section of the working philosophy of our law schools. Usually these notes deal with cases that touch the
law at a vital spot-where it is growing. Instead of trying to see if the law is growing in the right direction,
the analyst usually objects to the fact that the law is growing. Often the dissatisfied analyst will write
that the decision was based on "extra-legal considerations" which are not discussed by the student
authors. Obviously the law that ought to be is not legally relevant to these students." (2) The modern
preference for legislation as a means of legal reform indicates that lawyers and judges do not sufficiently
recognize the purposive and creative element in the law.61 (3) In Britain, the law has become so
formalized that commercial cases seek arbitration rather than judicial adjudication. Arbitrators are
willing to take into account the changing needs of commerce and the ordinary standards of commercial
fairness. The judicial law that is refuses to bend to needs that demand a law that ought to be.6 2 (4) In
this country where our written Constitution is authoritatively interpreted by a Supreme Court, lawyers
unfortunately think more about what the Supreme Court will do, i.e., ,, Id. at 91. 611 ld. at 128. I; Id. at
130. 62 Fuller, supra note 44, at 637-38. FULLER the "legality" of a problem or doubtful procedure,
instead of seeking to articulate the restraints that must be accepted to insure orderly, fair and decent
government. 63 Not only has legal thinking been stifled, but fact analysis as well. Is and ought are mixed
in with facts as well as with law. As a result of positivist concentration on the is element in factual
analysis, there has been an emphasis on those facts which can be statistically or graphically presented.
Yet Fuller points out, some of the most significant facts involve intangible realities, such as moral facts,
lying not in behavior patterns, but in attitudes and conceptions of rightness.'- Professor Fuller points out
that we are living in an era of great basic changes in our social structure. Positivism, by concentrating on
what the law is, tends to freeze the law and the legal framework. Human relations continue to develop
and take on new forms, but the law which excludes oughtness fails to respond to the pressing needs of
the times." Fuller describes positivism's most dangerous quality as "the inhibitive effect it inevitably has
upon the development of a spontaneous ordering of human relations. ... "66 Along with its inhibitive
effect is the fact that positivism encourages a blind obedience to law. The law is not followed because of
its reasonableness or its capacity to effect a happy compromise among conflicting human desires. The
law is followed because it is the law. Hitler's Germany was an extreme of this aspect of positivism.
63Fuller, American Legal Philosophy at MidCentury, 6 J. LEGAL ED. 457, 464 (1954). ". FULLER, op. cit.
supra note 52, at 64-65. 6 I ld. at 110-14. 6 6 Id. at 110. The inherited conception of law that ruled
unchallenged, among German legal scholars, for decades taught that "law is law." This view was helpless
when confronted with lawlessness in statutory form. No matter how unjust the statute, as long as it was
enacted into legal form-as long as it was a sovereign command and an accomplished fact of the power of
the state -it had to be treated as law. Thus, positivism paved the way for Hitler.67 Professor Fuller sees
examples of the same dangerous type of thinking in our country. There was an article in the Boston
Herald apropos of the investigatory methods of a certain senator. The writer said that he had heard all of
the debate over the senator's methods and had consulted three lawyers-one opposed to the senator,
one in favor and one indifferent. The writer asked the three lawyers if the senator had done anything
illegal, and the answer was, no. Fuller concludes: "That to me is an extremely dangerous state of public
opinion where law is simply taken as the authority determining what should be done and should not be
done, and its moral roots are ignored." 6 Professor Fuller worries that many undergraduates today are
receiving from the "behavioral sciences" an indoctrination in the notion that the whole social process is a
scramble for "power." He is disturbed about the deep roots this teaching seems to strike in many
students who glibly reject as "naive" any view that seems to contradict it.69 67 Fuller, supra note 63, at
483-84, 465-66; Fuller, supra note 44, at 659. (8 FULLER, ON THE TEACHING OF LAW IN THE LIBERAL
ARTS CURRICULUM 86 (Berman ed. 1956). 69 Id. at 42. Keeping duly enacted law distinct from personal
opinion and individual moral conviction-a basic tenet of positivism-is one of the most worthy goals of
civilization. But in a review of Buckland's Some Reflections on Jurispurdence, Professor Fuller warns of
the danger of pretending that this goal has been achieved when it hasn't. It is doubly dangerous, he
adds, to suppose that this goal is, under all circumstances, and in all relationships the most important
objective man can strive for.7 0 Why Positivism Succeeds Noting that the harmful inhibitive effects of
positivism have been felt in American legal thinking for nearly a century, 71 Professor Fuller indicates
that some of the reasons for its success are its worthy aims, its real contributions to legal thinking and its
alliance with the "scientific method." Positivism's worthy purposes include: the preservation of order in
society by clearly defining what -is law and by encouraging fidelity to law;7 " the placing of law-making
not in the hands of the judiciary but in the legislature; and, the facilitation of scientific understanding of
law and government. 73 This latter goal, the scientific understanding of law, includes the separation of
law from morality. The positivist fear of morality in the law stems not only from the possibility of anarchy
when law can be branded and repudiated by citizens as immoral-but even more important-from the
possibility of an over-purposive interpretation of law that would fasten on so70 Fuller, Book Review, 59
HARv. L. REV. 826, 828 (1946). 71 FULLER, op. cit. supra note 52, at 61. 72 FULLER, op. cit. supra note 36,
at 113; Fuller, supra note 44, at 632. 73 FULLER, op. cit. supra note 36, at 113. 11 CATHOLIC LAWYER,
SPRING 1965 ciety some all-embracing orthodoxy.74 These positivist goals appeal to, and have enlisted
support from, many a non-positivist legal thinker. Besides sympathizing with the purposes and goals of
the positivists, Professor Fuller acknowledges that positivism has made its contributions to American
legal thinking: One seldom encounters a law review article today [1934] of the type so common ten
years ago [1924], in which the writer starts with an inquiry into the "nature" of some legal concept and
ends by deducing all sorts of important consequences from the supposed inner nature of the concept,-
without more than a passing reference to the practical effects of his conclusions, and then with an air of
condescension, as if to compliment the facts for showing good judgement in conforming to his
theories.7- 5 Fuller acknowledges that Kelsen did the law a favor in purging it of such imaginings as "the
sovereign. ' " 6 Also, there was Professor Cook's war on "verbal trifling" or "unconscious metaphysics"77
and Professor Llewellyn's crusade against concepts which he attacked as the shadowy figments of our
minds, wholly unworthy of the simple faith the conceptualist placed in them.7 s Positivists by their
emphasis on the concrete - on the raw datum of law - represented a healthy reaction to
overconceptualism in legal thinking. Still another important reason for legal positivism's century of
success has been its alliance with the scientific method. 79 "The religion of modern man is science, and
he 74 Fuller, supra note 63, at 463; Fuller, supra note 44, at 671. 75 Fuller, American Legal Realism, 82 U.
PA. L. REV. 429, 443 (1934). 76 FULLER, op. cit. supra note 52, at 72-73. 77 Id. at 63. 78 Fuller, supra note
75, at 443. 79 FULLER, op. cit. supra note 52, at 117. FULLER prefers whenever possible to couch his
thoughts in the language of piety, that is, in words that sound scientific.' 8 This holy alliance with science
has given positivism the appearance of modernity and sophistication. Because of the belief that scientific
thinking alone was intellectually respectable, postivism alone had "brave things to say. '81 And Holmes,
who had such great influence on American legal thinking,8 2 was one of this holy alliance's8 3 most
revered prophets. While Professor Fuller sympathizes with many of the things that positivism has tried to
do, he insists that the goals of positivism will never be achieved, because the positivist tries to separate
the inseparable: is and ought; fact and value. And in attempting the impossible - to eliminate oughtness
and value from law-positivism is strangling legal development and endangering the future of society by
failing to give needed legal structure to the vast social changes of the time. By eliminating purpose and
morality from the law, positivism leaves untouched the difficult issues of the day where real dangers lie.8
4 Professor Fuller believes that the answers to the pressing problems of the day, and a 80 Fuller,
Freedon-A Suggested Analysis, 68 HARV. L. REV. 1305, 1307 (1955). 81 FULLER, op. cit. supra note 52, at
104. 82 Id. at 117. 83 Professor Fuller has no patience with the scientific method as applied to law. He
points out that the proper method for solving a problem depends to a large degree on the kind of
problem to be solved. Just because a method works in the natural sciences, there is no guarantee that it
will work also in the social sciences or in the law. See FULLER, op. cit. supra note 52, at 118-19; Fuller,
supra note 80, at 1307-09; Fuller, supra note 63, at 475-76. 84 Fuller, supra note 44, at 661-63; Fuller,
supra note 63, at 466-67. real understanding of law, lie in a return to the true fundamental basis of law
and order: For I believe that law is not a datum, but an achievement that needs ever to be renewed, and
that it cannot be renewed unless we understand the springs from which its strength derives. 85 What
these "springs" are is the content of Professor Fuller's own natural law view.