However, ruling out this relationship of dependency means leaving many other interesting possibilities intact. For example, moral value may derive from the existence of the law (Raz 1975 [1990:165-170]). If Hobbes is right, any order is better than chaos, and in some circumstances order can only be achieved by positive law. Or perhaps every existing legal system expresses conscious governance in a Hegelian manner in a world otherwise governed by chance; Law is the spirit of community that comes to self-confidence. Note that these claims are consistent with the fallibility thesis, as they do not deny that these supposedly good things can also bring evil, such as too much order or the will to power. Perhaps such derived links between law and morality are considered harmless because they say more about human nature than the nature of law. The same is not true for the following necessary links between law and morality, each of which goes to the heart of our conception of law (see Green 2008 below): 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 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). This chapter examines some of the implications of the conventional foundations of law in the debate between two main versions of legal positivism: the so-called exclusive and inclusive theses. She argues that inclusive legal positivism, which should strike a balance between traditional positivist theories and the antipositivism of Ronald Dworkin, is not a defensible position. There is no middle ground. This book argues that inclusive legal positivism is incompatible with both social conventions of law and its essentially authoritarian nature.
The law does not necessarily meet the conditions under which it is adequately evaluated (Lyons 1984:63; Hart 1961 [2012: 185-186]]. The law must be just, but it must not be; it should promote the common good, but sometimes it does not; It was supposed to protect moral rights, but it can fail miserably. This is what we can call the thesis of moral fallibility. The thesis is correct, but it is not the exclusive property of positivism. Thomas Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a blatant misunderstanding of ideas such as Thomas Aquinas` assertion that “an unjust law does not seem to be a law at all” could suggest otherwise. The law can be essentially moral in character while being morally deficient. Even if each law always delivers justice (formal justice; Justice according to the law), this does not mean that he does justice.
Even if every law has a prima facie right to be applied or followed, it does not follow that it has such a right. The gap between these partial and conclusive judgments is all that a theory of natural law needs to adapt to the fallibility thesis. It is sometimes said that positivism more surely grasps the fallibility of law, because once we see that it is a social construct, we will be less likely to pay undue tribute and be more willing to make a clear moral assessment of the law. This claim appealed to several positivists, including Bentham and Hart. But while this may stem from the truth of positivism, it cannot provide an independent argument for it. If the law is essentially moral in character, then it is obscured, not clarifying, to describe it as a source-based governmental structure. 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. At one point, Hart identifies legal positivism with legal positivism has a long history and great influence. It has precursors in ancient political philosophy and is discussed in medieval legal and political thought, and the term itself is introduced (see Finnis 1996). Modern teaching, however, owes little to these ancestors. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first complete elaboration is due to Jeremy Bentham (1748-1832), whose narrative Austin adopted, modified and popularized. For much of the next century, an amalgam of their views, according to which law is the imperative of a ruler supported by force, dominated philosophical reflection on law. By the mid-twentieth century, however, this narrative had lost its influence among active legal philosophers. His focus on legislative institutions has been replaced by a focus on law enforcement institutions such as the courts, and his emphasis on the role of coercive power has given way to theories emphasizing the systematic and normative nature of law.
The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominant figures of analytic legal philosophy, H.L.A. Hart (1907-92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. However, the importance of legal positivism is not limited to the philosophy of law. This can be seen throughout social theory, especially in the works of Marx, Weber and Durkheim, and also in many jurists, including American “legal realists” and most contemporary feminist academics. Although they disagree on many other points, these authors all recognize that the law is essentially a matter of social fact. Some of them are uncomfortable with the label of “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use the term “positivist” offensively to condemn a formalist doctrine that the law is always clear and, no matter how foolish or erroneous, must be rigorously enforced by officials and followed by subjects. It is doubtful that anyone has ever had this view, but it is definitely wrong and has nothing to do with legal positivism. Among those educated in philosophy, another, more understandable misunderstanding can be disturbing.
Legal positivism is sometimes associated here with homonymic teachings but independent of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can only be studied by the methods of the natural sciences). While there are historical connections and temperament similarities between these ideas, they are substantially different.