Before the American Revolution, English political thinkers John Austin and Thomas Hobbes articulated the theory of the command of law, which defended the thesis that the only legal authorities that the courts should recognize are the orders of the sovereign, since only the sovereign is responsible for the power to carry out his orders with military and police force. The second thesis, which encompasses the basis of legal positivism, is the separability thesis. In its most general form, the separability thesis asserts that law and morality are conceptually separated from each other. This abstract formulation can be interpreted in several ways. For example, Klaus Faber (1996) interprets it as a meta-level assertion that the definition of law must be completely free of moral notions. This interpretation implies that any reference to moral considerations in the definition of related terms of law, validity and legal system is incompatible with the severability thesis A second question concerns Austin`s view that sovereign legislative authority cannot be legally limited. According to Austin, a ruler cannot be legally restricted because no person (or body of people) can force themselves (or themselves). Since the constitutional provisions limit the legislative power to legislate, Austin is compelled to argue that what we call constitutional law is in fact not law at all; it is essentially a question of “positive morality” (Austin 1977, p. 107). It is a question of the content of all legal systems. Where there is a law, there is also morality, and they regulate the same issues by analogous techniques.
Of course, the assertion that the law deals with the object of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean endorsing the obligations thus created. This term differs from Hart`s “minimum content” thesis, according to which there are basic rules for violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and, to this extent, is willing to relativize his plea for the separability thesis. But even a society that prefers national glory or the worship of the gods to survival will impose on its legal system the same tasks that persecute its morality. Unlike the rules of a gym, the law has a broad scope and extends to the most important things in any society, whatever they may be. Indeed, our most pressing political concerns about the law and its demands stem precisely from this ability to regulate our most vital interests, and the broad scope of the law must play a role in any debate 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. For review, see Kramer 1999: 83-9; Duarte d`Almeida and Edwards 2014.) Dworkin`s rich and complex arguments attracted various lines of response from positivists. One answer denies the relevance of phenomenological claims. Controversy is a matter of degree, and a destructive amount of consensus is not proven by the existence of contradictory arguments before the supreme courts or even in the courts.
Equally important is the broad spectrum of permanent law, which leaves little doubt and determines social life outside the courtroom (cf. Leiter 2009). As for the diversity argument, it is far from being a refutation of positivism, but a consequence of it. Positivism does not identify the law with all the valid reasons for decision-making, but only with the subset based on the source of these. This 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 properly effective in making legal decisions, as are linguistic or logical considerations. The ponens mode applies both in and out of court, but not because it has been adopted by the legislature or decided by the judges, and the fact that there is no social rule that validates both the 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 the Acts of Parliament must be; And taking into account the difference is a central task of legal philosophy.
The British legal positivism mentioned so far was based on empiricism; In contrast, Germanic legal positivism was based on the transcendental idealism of the German philosopher Immanuel Kant. While British legal positivists view law as distinct from morality, their Germanic counterparts view law as distinct from facts and morality. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose thesis of legal positivism is explained by Suri Ratnapala, who writes: It is a strange fact that almost all theories that insist on the essentially moral character of the law consider the character of the law to be essentially good. The gravity of Fuller`s philosophy is that the law is essentially a moral enterprise that is only possible through a robust adherence to one`s own inner morality. The idea that the law could have an inner immorality never crossed his mind. But, as Hart acknowledged, when there is “a union of primary and secondary rules,” that is, wherever there is law, moral hazards arise 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 resist the injustice of property, what the legal system implies, can be bought. Although the law has its merits, it also necessarily risks certain vices, which marks a link between the law and the morality of the opposite kind. The problem with Dworkin`s analysis, however, is that it falsely assumes that a public servant cannot enact a new law unless there are no legal norms that limit the official`s decision. In fact, legislatures in jurisdictions like the United States never have what Dworkin calls strong discretion.
Even the legislative decisions of Congress, the nation`s highest legislative branch, are still limited by constitutional norms. For example, under the Fourteenth Amendment, Congress cannot pass a law that sets a speed limit for male drivers on highways and another for female drivers. Legal positivism does not claim that the laws thus identified must be followed, or that it is necessarily useful to have clear and identifiable rules (although some positivists may also make these claims). In fact, the laws of a legal system may be completely unjust, and the state may be quite illegitimate; As a result, there may be no obligation to obey them. Moreover, the fact that a law has been found to be valid by a court does not provide any indication as to whether the court should apply it on a case-by-case basis. As John Gardner put it, legal positivism is “normatively slow”; It is a legal theory, not a theory of legal practice, jurisprudence or political obligation. Legal positivists believe that intellectual clarity can be better achieved by leaving these questions to a separate investigation. Legal positivism is the thesis that the existence and content of law depend on social facts and not on its merits. The English jurist John Austin (1790-1859) put it this way: But many positivists see the discretionary thesis as a claim of contingency that applies to some, but not all, possible legal systems.
Hart, for example, believes that there will inevitably be cases that are not clearly covered by a rule, but admits that a recognition rule could deprive judges of the discretion to enact justice in such cases by requiring judges to “deny jurisdiction or refer to Parliament matters that are not governed by existing law” (Hart 1994, p. 272). In fact, Hart`s inclusive positivism leads him to believe that a rule of recognition could require judges to decide cases exactly as Dworkin advocates (Hart 1994, p.
