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Abstract

Legal positivists like H.L.A. Hart assert that law does not require morality to exist; in fact it insists on the separation of law and morality. Relying on Lon Fuller, this article argues against that proposition by suggesting that morality is necessarily part of law. Using Pierre Bourdieu’s theory of field and capital, which suggests that social values are inherently a part of law, this article argues that the positivist view of law has a deficient theory of justice that can be used to secure injustice against disadvantaged groups in society. In this way, I conceptualize law as a field of contestation. This view enables the position that those who mobilize the right mix of resources, such as economic capital, social capital, cultural capital, political capital, and symbolic capital, are most likely to achieve success or advance their interests. Drawing on an analysis of the rule of law, judicial discretion, and stare decisis, this work attempts to demonstrate how social factors are inextricable from law’s creation.