Natural Law Differs from Legal Positivism in

Although all positivists agree that there are possible legal systems without moral limits to legal validity, there are conflicting views on whether there are possible legal systems with such restrictions. According to inclusive positivism (also known as incorporationism and soft positivism), it is possible that the rule of recognition of a society implies moral limits on the content of the law. Jules Coleman and H.L.A. Hart assert that «the rule of recognition as a criterion of legal validity may imply conformity with moral principles or material values. such as the Sixteenth or Nineteenth Amendment to the United States Constitution, which respects the establishment of religion or the restriction of the right to vote» (Hart, 1994, p. 250). Moreover, the thesis of discretion is consistent with some forms of natural law theory. According to Blackstone`s classical naturalism, conformity with natural law is a necessary condition for the legal validity of any legal system. But to the extent that natural law is incomplete, there will inevitably be questions which will have several results compatible with natural law. Since none of the relevant findings in such cases violate natural law, there is no indication that moral limits are assumed to be necessary to the content of the law itself, which precludes Blackstone from supporting the discretionary thesis in such cases.

If Blackstone believes that natural law contains a principle that deprives judges of discretion, then that obligation is, of course, incompatible with discretionary theory. But the assertion that there are necessary limitations on the content of the law, in itself, is consistent with the discretionary thesis, even if it is interpreted as a conceptual claim, as long as there are cases that are indifferent to natural law. Moreover, including positivists, argue that Dworkin`s account of principles itself is consistent with the genealogy thesis. As Hart puts it, «This interpretive test does not seem to be an alternative to a criterion provided by a rule of recognition, but. only a complex form of `soft positivism` of such a criterion, which identifies principles by their content and not by their pedigree» (Hart 1994, p. 263). The familiar idea of section II is that a recognition rule may contain substantial restrictions on legal validity, including those that are ultimately rooted in morality. Hart responded by rejecting Fuller`s assertion that the principles of legality are an inner morality; According to Hart, Fuller confuses the terms morality and effectiveness: But many positivists view the discretion thesis as a contingent claim that applies to some, but not all, legal systems. Hart, for example, believes that there will inevitably be cases that do not clearly fall within a rule, but acknowledges that a recognition rule could deprive judges of the discretion to legislate in such cases by requiring judges to «decline jurisdiction or refer matters not governed by existing law to the legislature» (Hart, 1994, p. 272). Indeed, Hart`s general positivism allows him to assert that a recognition rule could compel judges to decide cases exactly as Dworkin advocates (Hart 1994, pp.

263; and see section IV-2 below). At least for inclusive positivists like Hart, the discretion thesis makes a different type of assertion than the conceptual affirmations that form the theoretical core of positivism (Himma 1999). If lawyers do not agree on the criteria for legal validity, the grounds for validity cannot be exhausted by the common criteria of a recognition rule. The semantic stab therefore implies that the notion of legal validity must be more than what can be explained by promulgation according to common criteria enshrined in a rule of recognition. Furthermore, Dworkin asserts that the legal authority of norms such as the Riggs Principle cannot be inferred from promulgation in accordance with purely formal requirements: «Although the principles are supported by the official actions of legal institutions, they have no simple or direct connection with those acts to formulate that link in terms of criteria, which are established by an ultimate rule of primary recognition» (Dworkin 1977, p. 41). Unlike legal regulations, legal principles do not have a canonical form and therefore cannot be explained by formal promulgation. Most often, the separability thesis is interpreted in such a way that it only makes an assertion at the object level about the conditions of existence for legal validity. When H.L.A.

As Hart describes, the separability thesis is nothing more than the «mere assertion that it is by no means a necessary truth that laws reproduce or satisfy certain requirements of morality, when in fact they have done so many times» (Hart 1994, pp. 181-82). To the extent that the object-oriented interpretation of the separability thesis denies that it is necessary that there be moral limits to legal validity, it implies the existence of a possible legal system in which there are no moral restrictions on legal validity. Legal positivism has to do with the separation of law and morality. «Legal positivism is a philosophy of law that emphasizes the conventional nature of the law that it is socially constructed. According to legal positivism, «law is synonymous with positive norms, that is, norms established by legislators or considered common law or jurisprudence. [4] Some positivists were Bentham, Austin, Hart, and Kelsen, and they all had different theories. Bentham utility, Austin controls, strict rules, Kelsen standards. Legal positivism holds that morality is irrelevant to identifying what is a valid law.