Normative legal positivism ensures neutrality through the rule of law. There are two connections. The first is the stability of mutual expectations. The second stems from the “inherent neutrality” of the rules. In both respects, in the words of J. Raz, it turns out that “respect for the rule of law is necessary if the law is to respect human dignity”. Cf. Waldron 2001, pp. 411, 413-414: NLP “assumes (…) negative positivism” – that is, it presupposes “inclusive possibility” – “prescribes something like exclusive positivism.” There is no doubt that moral and political considerations influence the philosophy of law. As Finnis says, the reasons we have for establishing, maintaining, or reforming the law include moral reasons, and so these reasons shape our conceptions of law (1980 [2011:266-273] and 1996:204). But what concepts? If one accepts, like Finnis, that the existence and content of law can be identified without resorting to moral arguments, and that “human law is artifact and artificiality; and no conclusions from moral premises” (1996:205), it becomes difficult to see how the theory of natural law he developed rivals the truth of legal positivism rather than absorbs it (see Gardner 2001, 225-227). It also distorts Lon Fuller`s criticism of Hart (Fuller 1958 and 1964).
Fuller has two main points. First, he believes that it is not enough for a legal system to be based on the usual social rules, since the law could not guide behaviour without being at least minimally clear, consistent, public, forward-looking, etc. – that is, without showing, to some extent, those virtues collectively referred to as the “rule of law”. Suffice it to say that this is compatible with the law of sources. Even if the moral characteristics were identical or superimposed on these constitutional characteristics, they do so because of their normative character. Whatever virtues may be contained in clear, consistent, forward-looking and open practices, one can find not only in the law, but in all other social practices with these characteristics, including custom and positive morality. And such virtues, if they exist, are small: there is little, if any, that speaks of a clear, consistent, forward-looking, public and impartially administered system of racial segregation, for example. Fuller`s second concern is that if the law is a fact, we have no explanation for the duty of obedience. He asks how “an amoral date called a law could have the special property of creating an obligation to obey it” (Fuller 1958:656). One possibility he overlooks is that this is not the case. But even if Fuller is right in his undisputed assumption, the “particular quality” he doubts is a familiar feature of many practices.
Compare promises: Whether a company has a promise practice and what someone has promised is a matter of social fact. But promise creates moral obligations of performance or compensation. An “amoral date” may indeed play a role, along with other premises, in a valid argument for moral conclusions. No positive jurist argues that the systemic validity of the law establishes its moral validity, that is, that it should be followed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes attributed, demanded that the law should actually keep the peace, otherwise we owe it nothing. Bentham and Austin, as utilitarians, believe that such questions always revolve around consequences, and both recognize that disobedience is therefore sometimes fully justified. Kelsen insists that “jurisprudence does not prescribe that the orders of the Creator of the Constitution be obeyed” (1960 [1967:204]). Hart believes that the law can produce a prima facie duty of obedience, based on fairness, but also limited by equity – there is therefore no obligation to make laws unjust or foolish (Hart 1955: 185-186). Raz goes further, arguing that there is not even a prima facie obligation to obey the law, not even in a just state (Raz 1979 [2009: 233-249]).
The particular accusation that positivists believe that the law must always be respected is unfounded. Indeed, Hart`s own view is that excessive adherence to the law is more easily linked to theories that imbue it with moral ideals, allowing the Stanford Encyclopedia of Philosophy to summarize the distinction between merit and source as follows: “The fact that a policy is just, wise, effective, or prudent is never a sufficient reason to believe that it is indeed the law. And the fact that it is unfair, reckless, inefficient or reckless is never a sufficient reason to doubt it. According to positivism, law is a question of what has been postulated (ordered, decided, practiced, tolerated, etc.); As we might say in a more modern idiom, positivism is the view that law is a social construct. [3] According to positivism, the source of a law is the establishment of that law by a socially recognized legal authority. The merits of a law are another matter: it may be a “bad law” by a certain standard, but if it has been added to the system by a legitimate authority, it is still a law. For Bentham and Austin, law is a phenomenon of societies with a ruler: a particular person or group who has de facto the highest and absolute power – they are obeyed by all or most of the others, but they themselves obey no one else. The laws of this society are a subset of the sovereign`s orders: general orders that apply to classes of actions and persons, supported by the threat of violence or “punishment.” This imperative theory is positivist because it identifies the existence of law with patterns of command and obedience that can be established without considering whether the sovereign has a moral right to govern or whether his orders are meritorious.
It has two other special features. The theory is monistic: it presents all laws as a single form and imposes obligations on its subjects, but not on the sovereign himself. The imperativist recognizes that ultimate legislative power may be self-limited or limited from the outside by what public opinion will tolerate, and also that legal systems contain provisions that are not mandatory (e.g., permits, definitions, etc.). But they consider them to be part of the non-legal material necessary for any legal system. (Austin is a bit more liberal on this.) The theory is also reductivist because it asserts that the normative language used to describe and establish law—conversations about authority, rights, duties, etc.—can be relentlessly analyzed in factual terms, usually as concatenations of statements about power and obedience. Legal positivism is different from legal realism. The differences are significant both analytically and normatively. Both systems assume that law is a human construct.
Unlike American legal realists, positivists believe that in many cases the law provides reasonably determined guidance to its subjects and judges, at least in judicial proceedings. Legal positivism in Germany was rejected by Gustav Radbruch in 1946, when the persecution of Nazi partisans faced the challenge of judging acts compatible with Nazi German law. Radbruch argued that when “the gap between positive law and justice reaches such an intolerable level,” it effectively becomes a “false right” and should not be followed unconditionally. It is a question of the content of all legal systems. Where there is law, there is morality, and they regulate the same things by analogous techniques. Of course, to say that law deals with the subject of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean to approve of the duties thus created. This term differs from Hart`s thesis of “minimal content,” according to which there are basic rules of violence, property, fidelity and kinship that any legal system must encompass if it is aimed at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and is willing to relativize his support for the separability thesis to this extent. But even a society that prefers national glory or the worship of gods to survival will impose on its legal system the same tasks as its morality. Unlike the rules of a gym, the law is broad in scope and achieves the most important things in any society. Indeed, our most pressing political concerns about the law and its demands stem from this very ability to regulate our most vital interests, and the broad scope of the law must play a role in any dispute about its legitimacy. (A clear argument, most developed by Raz (1994) and Gardner (2012a), is that the law not only deals with moral issues, but also makes moral claims about us.
On criticism, see Kramer 1999: 83–9; Duarte d`Almeida and Edwards, 2014.) It is an important feature of Hart`s report that the rule of recognition is an official custom and not a norm necessarily shared by the wider community.
Recent Comments