Nino's Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and Norms

Abstract

The year 1957–58 was the annus mirabilis of Anglo-American jurisprudence. In 1957, H.L.A. Hart, the Regius Professor of Jurisprudence at Oxford, delivered the Holmes Lectures at the Harvard Law School, which were published in the law review in February 1958 and, later, as The Concept of Law (1961), still the leading articulation of the philosophy of legal positivism. Also in 1958, Professors Henry M. Hart Jr. and Albert M. Sacks finalized the “tentative draft” of their materials on The Legal Process; these materials, now available in print, set forth a purpose-based version of legal positivism. In a law review exchange with H.L.A. Hart, also published in February 1958, and then in The Morality of Law (1964), Professor Lon Fuller pressed the purpose theory of law away from positivism and toward a theory of law that integrated it with morality.