Lon Fuller

1
Lon Fuller

• Positivism and Fidelity to Law
• A Reply to Professor Hart

2

• Professor Harts position on the core and the
  penumbra seems to be that
• The task of interpretation is commonly that of
  determining the meaning of the individual words
  of a legal rule along with its range of reference
  of the aggregate of things to which it points
• In applying the rule in its core meaning, one
  is simply applying the law as it is without a
  creative role for the judge.
• The defect in this reasoning is the assumption
  that problems of interpretation typically turn on
  the meaning of individual words.
• Generally, we assign meaning (in statutes, etc.)
  not to individual words, but to sentences,
  paragraphs, or a whole text.
• Further, Harts analysis gives us little help,
  even in the case of a single words, in accounting
  for what does or does not happen.
• See his response to the vehicle illustration of
  Hart.

3

• Is it ever possible to interpret a statute
  without knowing what the aim or purpose of
  the statute is?
• (In this regard, what does one do when the
  legislature does not record its debates or
  explain why it passed a particular provision of
  a statute? Does the judge simply make-up a
  statutory goal from his own ideas?)
• We do not decide cses simply by placing each word
  in some general context. Rather, we ask
  ourselves, What can this rule be for? What evil
  does it seek to avert? What good is it intended
  to promote?
• In short, we must put ourselves in the place of
  those who adopted the rule and understand what
  they thought ought to be. It is in light of
  this ought that judges must decide what the
  rule is.