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 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.
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. As H.L.A. Hart describes it, 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 often done so” (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. 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. Fuller`s jurisprudential legacy, however, should not be underestimated. While positivists have long recognized that the essential purpose of law is to guide behavior by rules (for example, John Austin writes that “a law. can be defined as an established rule for guiding an intelligent being by an intelligent being who has power over him” Austin 1977, p. 5), they have not always recognized the implications of this goal. Fuller`s lasting contribution to legal theory has been to flesh out these implications in the form of his principles of legality. Kelsen`s most important contribution lies in his attack on reductivism and his doctrine of the “fundamental norm.” It states that the law is a normative field and must be understood as such. Power does not do good – not even law – so the philosophy of law must explain the fact that the law imposes obligations on its subjects.
Moreover, law is a normative system: “Law is not, as is sometimes said, a rule. It is a set of rules with the kind of unity we mean by a system” (1945 [1961:3]). For imperiatists, the unity of a legal system is that all its laws are commanded by a sovereign. For Kelsen, they are all links in a chain of authority. For example, a law is legally valid because it is created by a body lawfully exercising the powers conferred on it by the legislature, which delegates those powers in the manner provided for in the Constitution, which in turn was created in the manner provided for in a previous constitution. But what about the very first constitution, historically? His authority, according to Kelsen, is “assumed.” The prerequisite for interpreting a legal norm as binding is that the first constitution be validated by the following “basic norm”: “The original constitution must be followed”. Well, the basic norm cannot be a legal norm – we cannot explain the binding nature of the law by referring to more law without infinite hindsight. Nor can it be a social fact, because Kelsen asserts that the reason for the validity of one norm must always be another norm – not an eastern target. It follows that a legal system must consist of standards all the way down. It is subject to a hypothetical, transcendental norm, which is the condition for the comprehensibility of all (and all) other norms as binding.
“Presupposing” this fundamental norm does not mean confirming it as good or just – the prerequisite is only a cognitive attitude – but, according to Kelsen, it is the necessary prerequisite for a non-reductivist presentation of law as a normative system. Every human society has some form of social order, a way to mark and promote approved behavior, to deter disapproved behavior, and to resolve 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.