Legal Positivism Argue
Rather, Hart argues that his legal theory is “a descriptive account of the particularities of the law in general as a complex social phenomenon” (Hart, 1994, p. 246). Hart presents his theory not as a representation of how people apply the concept of law, but as a representation of what distinguishes legal systems from other systems of social rules. According to Hart, it is the existence of a rule of recognition that establishes criteria of validity that distinguishes the law from other systems of social rules. According to Hart, Dworkin`s critique fails because it wrongly characterizes positivism as a criteria-based explanation of the concept of law. The problem with Dworkin`s analysis, however, is that it wrongly assumes that a public servant cannot enact a new law unless there are no legal norms limiting the official`s decision. In fact, legislators in jurisdictions like the U.S. never have what Dworkin calls significant discretion. Even legislative decisions by Congress, the nation`s highest legislative authority, are still constrained by constitutional norms.
For example, under the Fourteenth Amendment, Congress cannot pass a law setting a speed limit for male drivers on highways and another for female drivers. More recently, a group of legal philosophers who use conceptual clarification methods to make normative claims about law have become known as “legal positivists.” Legal positivists often claim to be strictly secular and scientific, and often describe their opponents of natural law as entirely religious. Before we can begin to understand the relationship between legal positivism and natural law theory, we must first see the relationship between “legal positivism” and simple “positivism” and “positive” law. Dworkin`s rich and complex arguments elicited various responses from positivists. One response denies the relevance of phenomenological claims. Controversy is a matter of degree, and a host of it that destroys consensus is not proven by the existence of contradictory arguments before the supreme courts or even before the courts. Equally important is the wide range of permanent law, which leaves little doubt and guides social life outside the courtroom (cf. Leiter 2009).
As for the diversity argument, far from being a refutation of positivism, it is a consequence of it. Positivism does not identify the law with all valid reasons for decision, but only with the subset of these based on the source. It is not part of the positivist assertion that the recognition rule tells us how to decide cases, or even identifies all the relevant reasons for a decision. Positivists accept that moral, political, or economic considerations are really effective in making legal decisions, as are linguistic or logical considerations. The modus ponens applies both inside and outside the courts, but not because it has been adopted by the legislature or decided by the judges, and the fact that there is no social rule confirming both modus ponens and municipal law is true but irrelevant. The authority of the principles of logic (or morality) is not something that can be explained by the philosophy of law; the authority of Parliament`s actions must be; And taking difference into account is a central task of legal philosophy. Raz also argued, unlike Hart,[14] that the validity of a law can never depend on its morality. [15] However, Raz admitted that the law may depend on morality in certain circumstances. [16] That is. possible for the legal system by obliging legislative bodies to respect or apply certain moral norms or political principles or expert opinions in order to transform these norms, principles or opinions into legal norms and thus into sources of law. (Kelsen 1945 [1961: 132]) The controversy between the judges does not arise over the content of the recognition rule itself. It determines which standards correspond to the standards set out therein.
Differences in behaviour among public servants, as evidenced by the fact that they identify different norms as legal norms, do not prove that they do not accept the same rule of recognition. On the contrary, judges accept the same conditions of truth for legislative proposals. They disagree on which theses meet these conditions (Coleman 1982, p. 156). Fuller`s jurisprudential legacy, however, should not be underestimated. While positivists have long recognized that the essential purpose of law is to guide behavior by rules (for example, John Austin writes that “a law. can be defined as an established rule for guiding an intelligent being by an intelligent being who has power over him” Austin 1977, pp. 5), they did not always recognize the implications of this goal. Fuller`s lasting contribution to legal theory has been to flesh out these implications in the form of his principles of legality. The positivist might counter that the Riggs Tribunal, in considering this principle, extended beyond the law to extra-legislative norms in the exercise of judicial discretion.