Aside from the differences, Austin adopted Hobbes and Bentham`s concept of law as a sovereign command, whose authority is recognized by most members of a society; whose authority is strengthened by sanctions, but who is not bound to any human superior. The criterion for the validity of a rule of law in such a society is that it has the authority of the sovereign and is enforced by the sovereign power and its agents. Hart is also critical of Austin`s view that legal obligations are essentially coercion. According to Hart, there is no difference between the ruler of Austin, who rules by coercive behavior, and the shooter, who orders someone to hand over their money. In both cases, the subject can presumably be characterized as “obliged” to follow orders, but not as “conscientious” or “obliged” (Hart, 1994, p. 80). According to Hart, the use of coercive force alone cannot give rise to a legal or other obligation. Other positivists react differently to Dworkin`s phenomenological points, accepting their relevance but modifying theory to accommodate them. The so-called “inclusive positivists” (e.g., Soper, Lyons, Coleman, Walukhov (who deserve the term), Kramer, and Himma) argue that merit-based considerations can in fact be part of the law if they are made explicit or implicit by source-based considerations. For example, the Canadian Constitution expressly permits the violation of Charter rights, “such remedies as the court considers appropriate and just in the circumstances.” In deciding which remedies may be valid, judges are therefore expressly invited to take into account their morality.

And judges can develop a firm practice in this regard, whether or not regulations require it; It can become common in some cases. Reference to moral principles may be implicit in the web of judicial law, for example in the common law principle that no one should profit from his or her own wrongdoing. Such moral considerations, the inclusivists argue, are part of the law because the sources make them so, and so Dworkin is right that the existence and content of the law may depend on its merits, and only false in his explanation of that fact. Legal validity depends on morality, not because of the interpretive consequences of an ideal on how government can use force, but because it is one of the things that can generally be accepted as the ultimate determinant of legal validity. It is the sources that make the merits relevant. 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. He denies that there can be a general theory about the existence and content of the law; It denies that the local theories of some legal systems can identify law without resorting to its merits, and it rejects the entire institutional orientation of positivism. A theory of law, for Dworkin, is a theory of how affairs should be decided, and it begins not with an account of political organization, but with an abstract ideal that governs the conditions under which governments can use coercive force against their subjects. 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. The second thesis, which forms the basis of legal positivism, is the separability thesis. In its most general form, the separability thesis asserts that law and morality are conceptually different. 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 devoid of moral notions. This interpretation implies that any reference to moral considerations in the definition of the related concepts of law, legal validity and legal system is incompatible with the theory of severability. If, at the end of the day, the law cannot be established in force or in a presupposed standard, what is its authority based on? Perhaps the most influential solution is that of H.L.A. Hart.

His solution is similar to Kelsens in his emphasis on the normative foundations of legal systems, but Hart rejects Kelsen`s transcendentalist and Kantian view of authority in favor of an empirical and Weberian view of authority. For Hart, the rule of law is social. The final criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to control behaviour. Law is ultimately based on custom: customs as to who has the power to decide disputes, what are to be considered binding grounds for decision, i.e. the sources of law, and how laws can be changed. Of these three “secondary rules,” as Hart calls them, the most important is the acknowledgement rule determining the source, as it establishes the criteria for final validity in the legal system. It exists only because it is practised by public servants, and it is not only the recognition rule that best explains their practice, it is the rule they invoke when discussing the standards they must apply. Hart`s narrative is thus conventionalist in a certain sense (cf. Marmor 1998 and Coleman 2001): ultimate legal norms are social norms, although they are neither the product of express agreement nor of conventions in the sense of Schelling-Lewis (cf. Green 1999). So for Hart too, the legal system is rules-based, but at its core, it`s a social norm that has the kind of normative force that customs have. It is a regularity of behavior against which officials take “the internal point of view”: they use it as a norm to guide and evaluate their own behavior and the behavior of others, and this use is evident in their behavior and discourse, including the use of various forms of social pressure to support the rule.

and the voluntary application of normative concepts such as “duty” and “obligation” when invoking them. A society has a legal system only if and to the extent that it honors this ideal, and its law is the totality of all the considerations which the courts of such a society would apply morally justified, whether or not these considerations are determined by any source. In order to identify the law of a particular society, we must always engage with moral and political arguments, for law is all that is compatible with an interpretation of its legal practices that shows that they are best justified in the light of this invigorating ideal. In addition to these philosophical considerations, Dworkin invokes two characteristics of the phenomenology of judgment as he conceives it. He notes a deep controversy among lawyers and judges about how important cases should be decided, and he finds that the considerations they consider relevant to their decision are diverse. The controversy suggests to him that the law cannot be based on official consensus, and the diversity suggests that there is no single social rule that validates all relevant grounds, moral and non-moral, for judicial decisions. In reality, however, legal positivism cannot be identified with both theses: both are false. There are many necessary “connections,” trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; it rejects any dependence on the existence of a right on its merits (Gardner 2001). And with regard to this relationship of dependence, legal positivists are concerned with much more than the relationship between law and morality, because in the sole sense that they insist on a separation of law and morality, they must also insist – and for the same reasons – on a separation of law and economics.

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.