Justice, Morality and Law

This chapter takes the positivist-moralist debate between H.A.L. Hart and Lon L. Fuller 1 as a point of departure for investigating the presuppositions regarding violence and the origin of society that lie at the heart of Hart’s and Fuller’s philosophy of law. If the violent origin of society is explicit in the work of the thinkers addressed in Chapter 3 , the difference here is that origins – whether or not these are violent – are implicit in the philosophies of the aforementioned thinkers. To focus more broadly, it will be shown that, like the positivists, proponents of natural law also presuppose the violent origin of society and thus the necessity of law. While there is an absence of any reference to sacrifice or the scapegoat as constituting the origin of law, the clear implication is that without law, there would be complete disorder and the occurrence of violence characteristic of the state of nature.