It is a question of the content of all legal systems. Where there is law, there is morality, and they regulate the same things by analogous techniques. Of course, to say that law deals with the subject of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean to approve of the duties thus created. This term differs from Hart`s thesis of “minimal content,” according to which there are basic rules of violence, property, fidelity and kinship that any legal system must encompass if it is aimed at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and is willing to relativize his support for the separability thesis to this extent. But even a society that prefers national glory or the worship of gods to survival will impose on its legal system the same tasks as its morality. Unlike the rules of a gym, the law is broad in scope and achieves the most important things in any society. Indeed, our most pressing political concerns about the law and its demands stem from this very ability to regulate our most vital interests, and the broad scope of the law must play a role in any dispute 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 criticism, see. Kramer, 1999: 83-9; Duarte d`Almeida and Edwards, 2014.) These internal principles, according to Fuller, constitute morality because law necessarily has positive moral value in two ways: (1) law contributes to a state of social order, and (2) does so by respecting human autonomy because rules guide behavior. Since no set of rules can achieve these morally valid goals without adhering at least to the principles of legality, Fuller argues that they constitute morality. Since these moral principles are integrated into the conditions of existence of the law, they are internal and therefore represent a conceptual link between law and morality incompatible with the theory of separability. 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. Hart understands his legal theory as both descriptive and general in that it captures the fundamental characteristics common to all legal systems – which presupposes a point of view that lies outside all legal systems. For this reason, he sees his project as “an undertaking radically different from Dworkin`s conception of legal theory (or `jurisprudence` as he often calls it), as partially evaluative and justifiing, and as `oriented towards a particular legal culture`, which is usually that of the theorist and, in Dworkin`s case, that of Anglo-American law” (Hart 1994, 240). Unlike all forms of naturalism, legal positivism is roughly composed of three theoretical obligations: (i) the thesis of the social fact, (ii) the thesis of conventionality and (iii) the thesis of separability. The social fact thesis (also known as the genealogical thesis) asserts that it is necessary that legal validity ultimately be a function of certain types of social facts. The conventionality thesis emphasizes the conventional nature of law and asserts that the social facts that lead to legal validity are decisive because of some kind of social convention.
The separability thesis, at the most general level, simply denies the overlapping naturalism thesis; According to the separability thesis, there is no conceptual overlap between the concepts of law and 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 efficiency: [secondary rules] can all be called primary rules at a different level, for they all concern such rules; In the sense that if primary rules deal with actions that individuals do or do not have to do, these secondary rules concern all primary rules themselves. They determine how primary rules can be conclusively established, introduced, eliminated, modified, and the fact of their violation conclusively established (Hart, 1994, p. 92). These three theses establish links between law and morality that are both necessary and of great importance. Each of them is consistent with the positivist thesis that the existence and content of the law depend on social facts and not on the merits of the law. Each of them contributes to the understanding of the nature of the law. The once popular notion that legal positivism insists on the separability of law and morality is therefore grossly false. Accordingly, according to Dworkin, theoretical disagreement on key cases such as Riggs is incompatible with semantic legal theories because it shows that common criteria do not exhaust the appropriate conditions for the application of the legal concept. Indeed, the majority and the dissenting judges in Riggs had reasonable disagreement on the law, even though it was a crucial case involving validity criteria. Therefore, Dworkin concludes, the concept of law cannot be explained by what is called the semantics of criteria.
Dworkin provides a hypothetical justification for consent to his limited legal paternalism. In his view, there are a number of different situations in which completely rational adults would accept paternalistic restrictions on freedom. For example, Dworkin believes that a fully rational adult would accept paternalistic restrictions to protect him or her from “far-reaching, potentially dangerous and irreversible” decisions (G. Dworkin 1972, p. 80). Nevertheless, he argues that there are limits to legitimate paternalism: (1) the state must demonstrate that the conduct determined by the proposed restriction involves the kind of harm a rational person wants to avoid; (2) according to a fully rational person`s calculations, the potential harm outweighs the benefits of the relevant behaviour; and (3) the proposed restriction is the least restrictive alternative to harm protection. According to positivism, the source of a law is the establishment of that law by a socially recognized legal authority. The merits of a law are another matter: it may be a “bad law” by a certain standard, but if it has been added to the system by a legitimate authority, it is still a law.