For each rule x, we (judicial officials) collectively accept that if x meets certain conditions C, this is considered the legal rule of our legal system. The most influential criticisms of legal positivism all stem in one way or another from the suspicion that it does not give morality the legitimacy it deserves. A theory that emphasizes the factuality of law seems to contribute little to our understanding that law has important functions in ensuring the proper functioning of human life, that the rule of law is a cherished ideal, and that the language and practice of law are highly moralized. Accordingly, critics of positivism argue that the most important features of law are not to be found in its source-based character, but in the ability of law to promote the common good, protect human rights, or govern with integrity. The semantic sting resembles one of Dworkin`s earlier criticisms of Hart`s thesis. Hart believes that the recognition rule is a social rule and is therefore constituted by the conforming behavior of people who also accept the rule as a reason to criticize deviations. Like all social rules, the rule of recognition has an external and internal aspect. The external aspect of the rule of recognition consists in general obedience to these rules, which meet their criteria of validity; The interior aspect is constituted by its acceptance as a public norm of official behavior. Hart believes that it is this dual aspect of the rule of recognition that explains his normativity and allows him to distinguish his theory from Austin`s view of law as a system of coercive orders. For, as Hart points out, a purely coercive order can or may compel a person to do so (see Section I, above).

Legal positivism is a philosophy of law that emphasizes the conventional nature of law – that it is socially constructed. According to legal positivism, the law is synonymous with positive norms, that is, norms established by Parliament or considered common law or jurisprudence. Formal criteria of origin of the law, application of the law and legal validity are sufficient to consider social norms as law. Legal positivism does not base law on divine commandments, reason, or human rights. As a historical issue, positivism arose in opposition to the classical theory of natural law, according to which there are moral limits necessary to the content of law. It is a curious fact that almost all theories that emphasize the essentially moral character of law regard the character of law as essentially good. The gravity of Fuller`s philosophy is that law is essentially a moral enterprise made possible only by a robust adherence to one`s own inner morality. The thought that the law could have an inner immorality never crossed his mind. But, as Hart acknowledged, where there is “a union of primary and secondary rules”—that is, wherever there is a right—moral hazard arises out of necessity. Not only are there new effective forms of oppression that are not available in communities with more diffuse forms of social organization, but there are also new vices: the possible alienation of community and value, the loss of transparency, the rise of a new hierarchy and the possibility that some, who should oppose injustice, be bought from property. what the legal system entails. Although law has its virtues, it also necessarily risks certain vices, which marks an inverse link between law and morality.

Unfortunately, Hart`s response overlooks the fact that most of Fuller`s eight principles serve as moral ideals of fairness. For example, public proclamation in comprehensible terms may be a necessary condition for effectiveness, but it is also a moral ideal; It is morally reprehensible for a state to apply rules that have not been publicly promulgated in a reasonably calculated manner to put an end to what is required. Similarly, we take it for granted that it is wrong for a State to adopt retroactive rules, inconsistent rules and rules that demand the impossible. Poisoning may have its internal standards of effectiveness, but these standards differ from the principles of legality in that they conflict with moral ideals. Thus, according to Hart, there are two minimum conditions that are sufficient and necessary for the existence of a legal system: “On the one hand, the rules of conduct valid according to the ultimate criteria of validity of the system must generally be followed and, on the other hand, its rules of recognition, which establish the criteria of legal validity and its rules of modification and jurisprudence, must effectively act as common public standards of official conduct. be accepted. by its officials” (Hart 1994, p. 113). 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. If the image of the political system by the imperiatists was pyramid power, Harts is more like Weber`s rational bureaucracy. Law is generally a technical enterprise characterized by a division of labor. The contribution of ordinary subjects to the existence of the law can therefore mean nothing more than passive and, in extreme cases, perhaps less so.

Hart`s necessary and sufficient conditions for the existence of a legal system are therefore that Fuller`s principles function internally, not as moral ideals, but simply as principles of efficiency. As Fuller would probably acknowledge, the existence of a legal system is compatible with a significant departure from the principles of legality. Legal norms, for example, are necessarily proclaimed in general terms, which inevitably leads to problems of indeterminacy. And too often, officials do not administer the law fairly and impartially – even in the best jurisdictions. Such deviations may still be prima facie reprehensible, but they are incompatible with a legal system only if they render a legal system incapable of fulfilling its essential function of guiding conduct. To the extent that these principles are embedded in the conditions of existence of the law, it is because they act as conditions of effectiveness – not because they function as moral ideals. 10Take, for example, the objection that the recognition rule cannot explain why it (like the other two secondary rules) is a member of a legal system. If a legal system is a union of primary and secondary rules, and if the rule of recognition serves only to form the primary rules of a system, then there must be another rule that would constitute the secondary rules of the system. In this context, it is also curious to know how the recognition rule can provide for the union of primary and secondary rules. By specifying the criteria for membership in the primary rules, it certainly ensures unity between the different primary rules of a system, but it cannot explain the unity between the primary rules and, for example, the secondary rule of modification or competence. According to Dworkin, the thesis of the discretion of positivism is engaged in the third sense of discretion, which he calls strong discretion. According to Dworkin, the thesis that judges have discretion only in the sense that they exercise judgment is trivially true, while the thesis that judges have discretion in the sense that their decisions cannot be overturned by a superior court is false.

Even the Supreme Court can be struck down by Congress or by a constitutional amendment. According to Dworkin, the discretionary thesis implies that judges have the discretion to decide difficult cases, which amounts to a legal act because the judge is not bound by any legal norm. The positivist thesis does not say that the merits of law are incomprehensible, unimportant or peripheral to the philosophy of law. It indicates that they do not determine whether there are laws or legal systems. Whether a society has a legal system depends on the existence of certain governance structures, not on the extent to which it conforms to the ideals of justice, democracy or the rule of law. The laws in force in this system depend on the social norms that its officials recognize as authoritative; For example, legislative decrees, court decisions or social customs. The fact that a policy is just, wise, effective or prudent is never a sufficient reason to believe that it is really the law, and the fact that it is unjust, reckless, ineffective 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.). Austin found the thesis “simple and crude.” While this is probably the dominant opinion among analytically inclined legal philosophers, it is also subject to competing interpretations as well as persistent criticism and misunderstanding.

The second argument challenges an underlying idea of inclusive positivism, which we might call the Midas principle. “Just as everything that touched King Midas was turned into gold, everything the law refers to becomes the law… (Kelsen, 1945 [1961: 161]). Kelsen thinks it follows from this principle that Lon L. Fuller in The Morality of Law argues that law is subject to an internal morality composed of eight principles: (P1) Rules must be expressed in general terms; P2) rules must be promulgated publicly; (P3) The rules must be (primarily) forward-looking; (P4) The rules must be understandable; (P5) The rules must be consistent with each other. (P6) These rules do not prescribe conduct that exceeds the powers of the interested parties; (P7) Rules cannot be changed so frequently that the subject cannot invoke them. and (P8) the rules must be applied as they are worded (Fuller 1964, p. 39). If the views of Finni and Fuller are therefore compatible with the positivist thesis, the same cannot be said of the important works of Ronald Dworkin (Dworkin 1978, 1986 and 2011). The most influential critic of positivism rejects theory on every conceivable level.