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By | June 2012
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The Common Discourse of Hart and Fuller Ngaire Naffine

When you are criticizing the philosophy of an epoch do not chiefly direct your attention to those intellectual positions which its exponents feel it necessary to defend. There will be some fundamental assumptions which adherents of all the variant systems within the epoch unconsciously presuppose. Such assumptions appear so obvious that people do not know what they are assuming because no other way of putting things has ever occurred to them. With these assumptions a certain limited number of types of philosophic systems are possible, and this group of systems constitutes the philosophy of the epoch. 1

Desmond Manderson contends that the visions of Hart and Fuller are incommensurable. I will suggest, on the contrary, that they are quite similar and certainly commensurable. Though they mark out and defend different intellectual positions, Hart and Fuller share a number of fundamental assumptions which appear so obvious to them that they barely need stating. Their important similarities are to be found in the unsaid and the assumed – what does not need proper clarification because so much is already understood and presupposed.

Manderson on Hart and Fuller Manderson adopts an approach to legal interpretation which is heavily indebted to a variety of literary theory. This theory tends to make extensive use of metaphor, to draw on literary fiction and it also, typically, recommends a certain analytic sequence for coming to understand the relationship between terms within different systems of meaning. As Manderson helpfully explains, when applied to the Hart-Fuller debate, the theory requires us to take three steps. First, we examine ‘the performance and rhetoric of Hart and Fuller as enacting two incommensurable visions of law.’ Second, we appreciate ‘the ways in which their efforts to exclude and reject the alternative terms being presented to them nevertheless conspicuously fail.’ Third we come to

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