fully. Existence itself depends upon one of the men dying, so that the others might live. As J. Foster states, "When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When that condition disappears . . . the force of our positive law disappears with it" (Fuller, 1949, p. 620).
Boyd (1994) has made the case that "law and morality must specify the moral premises that will be operative at any specific time and place" (p. 10). In Foster's statement above, the moral premise upon which men should be judged from a positivist perspective is the following: "All men should be expected to coexist." In the absence of such a premise, Foster would argue, positive law should not be invoked.
One of Fuller's (1994) spokesmen, J. Keen, represents
the positive law perspective. Because the defendants did "willfully take the life of Roger Whetmore" (p. 632), they should be condemned to death under the provisions of the law. Keen argues, "The difficulties, in whatever
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