Legal positivism in Germany was rejected by Gustav Radbruch in 1946, when the persecution of Nazi partisans faced the challenge of judging acts compatible with Nazi German law. Radbruch argued that when “the gap between positive law and justice reaches such an intolerable level,” it effectively becomes a “false right” and should not be followed unconditionally. As mentioned above, Dworkin`s arguments against positivism depend on claims about the phenomenology of jurisprudence and the limits imposed on jurisprudence by legal disagreements. Mark Greenberg`s recent work is based on many of Dworkin`s claims, but his conclusions are more radical in several respects (see Greenberg 2004 and 2014). Greenberg`s central argument against positivism is methodological: no one, he argues, would deny that the content of the law depends, at least in part, on social facts. However, it is not possible to answer the question of which facts – such as the semantic content or intended effect of legal provisions – cannot be resolved by reference to others: “Legal practice . cannot determine their own relevance” (2004: 185). It is therefore necessary to appeal to other types of considerations – for Greenberg, reflections on the moral significance of our social practices. It is the mistake of positivism to claim that the law could be practical to the bottom. However, the fact that the content of the law depends on social sources is a truth that is usually confirmed by the law, as opposed to an establishment in local legal practices. There is a categorical difference between the validity of the source thesis – a truth about the law as a kind of social practice – and the claim that in Britain, for example, it is forbidden by law to drive more than 70 miles per hour on the motorway. In this way, the former explains the latter without circularity and without the need to invoke morality. 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 separate from morality, their Germanic counterparts view law as separate 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: Every human society has some form of social order, a way of marking and promoting approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. So what distinguishes companies with legal systems and within these companies by their law? Before examining some positivist answers, it should be emphasized that these are not the only questions worth asking about the law. While understanding the nature of law requires a representation of what makes law distinctive, it is also necessary to understand what it has in common with other forms of social control. Some Marxists are positivist about the nature of law, but insist that its distinguishing features are less important than its role in reproducing and facilitating other forms of government. (Although other Marxists disagree: see Pashukanis 1924). They believe that the specificity of the law does little to shed light on their main concerns. But you can hardly know in advance; It depends on the nature of the law. For Bentham and Austin, law is a phenomenon of societies with a ruler: a particular person or group who has de facto the highest and absolute power – they are obeyed by all or most of the others, but they themselves obey no one else.
The laws of this society are a subset of the sovereign`s orders: general orders that apply to classes of actions and persons, supported by the threat of violence or “punishment.” This imperative theory is positivist because it identifies the existence of law with patterns of command and obedience that can be established without considering whether the sovereign has a moral right to govern or whether his orders are meritorious. It has two other special features. The theory is monistic: it presents all laws as a single form and imposes obligations on its subjects, but not on the sovereign himself. The imperativist recognizes that ultimate legislative power may be self-limited or limited from the outside by what public opinion will tolerate, and also that legal systems contain provisions that are not mandatory (e.g., permits, definitions, etc.). But they consider them to be part of the non-legal material necessary for any legal system. (Austin is a bit more liberal on this.) The theory is also reductivist because it asserts that the normative language used to describe and establish law—conversations about authority, rights, duties, etc.—can be relentlessly analyzed in factual terms, usually as concatenations of statements about power and obedience. 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. An authoritative introduction to all aspects of Hart`s work in legal philosophy, including his positivist legal theory. The evaluative argument is, of course, at the heart of legal philosophy in general.
No legal philosopher can only be a legal positivist. A full understanding of the law also requires accountability for what might be considered the merits of the law (should the law be effective or elegant and fair?); what role should the law play in the judicial system (should valid law always be applied?); what claim does the law have to our obedience (is there a duty to obey?); And also the more practical questions of what laws we should have and whether we should be right. Legal positivism does not seek to answer these questions (although Murphy 2014:88-108 to argue that the theory has important first-rate implications for legal practice). Nevertheless, positivism`s assertion that the existence and content of law depend only on social facts gives shape to them. Dworkin argues that when deciding difficult cases, judges often invoke legal principles that do not derive their authority from a formal act of promulgation (Dworkin 1977, 40). These principles, Dworkin believes, must be called law because judges are obligated to consider them when they are relevant.