Empire's Law: A Hartian Critique of the Potential of Fuller's and Radbruch's Theories to Address Legal Colonialism

The purpose of this thesis is to introduce the problem of legal colonialism into the natural law-positivism debate by analyzing the 2019 Huson case, an instance of legal colonialism writ small. In Chapter 2, I test the legality of Huson by applying Fuller’s eight principles to the Court’s decision. I conclude that, according to Fuller, Huson is law because it (at least plausibly) aligns with the inner morality of law. I suggest that Fuller’s theory would consider the immorality of legal colonialism to be a matter of law’s external morality. In Chapter 3, I test the legality of Huson by applying Radbruch’s formula to the Court’s decision. I conclude that, according to Radbruch, Huson is not law because it perpetuates and depends on the assertion of Crown sovereignty, which is an extreme injustice. However, the implications of this analysis extend beyond Huson; non-Indigenous law in British Columbia would count as statutory lawlessness. In Chapter 4, I critique Fuller’s and Radbruch’s natural law theories from the perspective of Hart’s positivism, focusing on Hart’s fallibility thesis and his wide, as opposed to narrow, concept of law. Contra Fuller, law’s fallibility gives rise to certain moral risks, i.e., alienation, segregation, appropriation, and assimilation. Law’s inner morality, at best, cannot preclude these vices and, at worst, can reinforce them. Contra Radbruch, I argue that supra-statutory law is a problematic solution to British Columbia’s statutory lawlessness since it fails as a system of primary and secondary rules. More crucially, I show how Radbruch’s formula incidentally generates extreme injustices of its own when applied to the Canadian context, i.e., denying the legal authority of Indian Act band governments and obstructing the possibility of genuine reconciliation between Indigenous peoples and settlers.

Department dc:contributor.department

Philosophy

Year dc:date.issued

2026

Author dc:creator

• Richardson, Scott

Advisor dc:contributor.supervisor

• Sypnowich, Christine

• Natural Law
• Positivism
• Colonialism
• Inner Morality of Law
• Radbruch Formula
• Crown Sovereignty
• Indigenous Law

Statement dc:rights

• Attribution-NonCommercial-NoDerivatives 4.0 International

Licence dc:rights.uri

• http://creativecommons.org/licenses/by-nc-nd/4.0/

Language dc:language.iso

eng

Handle dc:identifier.uri

https://hdl.handle.net/1974/36327

OAI identifier oai:identifier

oai:queensu.scholaris.ca:1974/36327