· Threshold test more practical and in post-war Germany there is adoption of something like the Radbruch test in constitution · Needs continuing legal culture but obvs has to get rid of nazi shit o Can be part of constitution · Equal treatment of equals o Formal justice and formal criteria for determining equals o Need some recourse to substantive justice o We know it in extreme cases - e.g. genocide ? Obvious cases we'd all agree on Hart · Address at Harvard uni and then published in HLR - first publication in legal philosophy · Appointed to chair and immersed in lit for like a year. Writes this on exchange in Harvard · Fuller is there and is incensed by the lecture. Maybe because younger Hart seems to challenge all of Fuller who is only dismissively referred to at end of paper. Fuller then becomes reorientated towards answering Hart. . Precursor to Col · Conceptual strcutre is implicit. No strong articulation of ROR, yet you can see it there without reading CL, same with primary and secondary rules. Internal point of view not clear. o Become clearer in CL. o If read paper without CL, can misunderstand Hart easily and Fuller does. They argue across each other. · Says that Radbruch naïve to make his cliam o Half-digests spirit of liberalism o Perhaps LP in Germany was dangerous and led to Nazism o Anglo tradition, utilitarian tradition etc · V influenced by Bentham o Benign and enlightened in UK ? P618 - spiritual message of liberalism o German history prompts enquiry into why "law is law" had bad character in Germany where others had v liberal conception of it. o What is the spiritual message of liberalism though? o Says that when come to conclusion of what law is, it doesn't displace moral reasoning on whether it should be obeyed. However the reasoning on obeying is separate. o Fuller thinks there is no account of normativity - Retter says its hard to see that Hart does in this paper. Kramer and Retter take the interpretation that he is trying to give normative example but it isn't conclusive of what we should do. o Too morally iniquitious to obey? Gardner v influential for Oxonians · Hart makes no attempt to explain normativity - lots of necessary connections between law and orality says Gardner. Analytic juris v diff though and operates only on RoR, no normativity. · MDR says makes no sense of statements where Hart tries to explain obligation o Kramer would also hate on this basis · Saying law is law is one thing - has no normativity, this is Fuller interpretation too.
Why no morals on liberalism · Why no overburden? o Flows into Allan on Dworkin - diff ideas of morality. o Don't overcommit to form of morality that people may object to. o Without it can have definitive idea of what law is. Then have entirely sep debate on what morality is. · 2 rival forms