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. The best place to begin a discussion of legal positivism and American jurisprudence was in 1940, when Lon Fuller accused legal realism of being only a subspecies of positivism. Fuller believed that legal realism and legal positivism were part of the same jurisprudential pedigree. He thought that legal realism was a modern American modification of the legal positivism of Jeremy Bentham and John Austin: other positivists react differently to Dworkin`s phenomenological points, accepting their relevance but modifying theory to accommodate them. So-called “inclusive positivists” (e.g., Soper, Lyons, Coleman, Walukhov (who deserve this term), Kramer, and Himma) argue that performance-based considerations can in fact be part of the law if they are made explicitly or implicitly 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. 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. Legal formalism is considered one of the most influential theories in case law and marks the authority of law as the main aspect for ruling and resolving a dispute. [1] The term “formalism” has no status of its own, it is simply a thought of philosophers such as Homes, Pound and Frank.[2] Formalism, in addition to its many applications, is how rules maintain their “rule” by adhering directly and prima facie to rules and laws, excluding factors that a sensitive decision-maker would consider.
[3] An important feature of the Hart Report is that the rule of recognition is an official custom and not a norm necessarily shared by the community as a whole. If the image of the political system by the imperiatists was pyramid power, Harts is more like Weber`s rational bureaucracy. Law is generally a technical enterprise characterized by a division of labor. The contribution of ordinary subjects to the existence of the law can therefore mean nothing more than passive and, in extreme cases, perhaps less so. Thus, Hart`s necessary and sufficient conditions for the existence of a legal system are as follows: In his essay “Formal and informal in legal logic”, Jan Woleński argues that there are “rhetorical functions of metalogical concepts used in legal discourse”, and thus the introduction of the informal into otherwise imperative logic. He reviews Jørgensen`s paradox to introduce deontic logic and acknowledges this innovation of Georg Henrik von Wright. [20] Modern positivist theories can be said to diverge. [A view] that can be called the “realistic” point of view is shared by many American writers. These men represent that direction of legal positivism that seeks to anchor itself in a date of nature that holds that the pursuit of law for its own sake can only end successfully if it ends in a tangible reality. The law does not necessarily meet the conditions under which it is adequately evaluated (Lyons 1984:63; Hart 1961 [2012: 185-186]]. The law must be just, but it must not be; it should promote the common good, but sometimes it does not; It was supposed to protect moral rights, but it can fail miserably. This is what we can call the thesis of moral fallibility.
The thesis is correct, but it is not the exclusive property of positivism. Thomas Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a blatant misunderstanding of ideas such as Thomas Aquinas` assertion that “an unjust law does not seem to be a law at all” could suggest otherwise. The law can be essentially moral in character while being morally deficient. Even if each law always delivers justice (formal justice; Justice according to the law), this does not mean that he does justice. Even if every law has a prima facie right to be applied or followed, it does not follow that it has such a right. The gap between these partial and conclusive judgments is all that a theory of natural law needs to adapt to the fallibility thesis. It is sometimes said that positivism more surely grasps the fallibility of law, because once we see that it is a social construct, we will be less likely to pay undue tribute and be more willing to make a clear moral assessment of the law. This claim appealed to several positivists, including Bentham and Hart. But while this may stem from the truth of positivism, it cannot provide an independent argument for it. If the law is essentially moral in character, then it is obscured, not clarifying, to describe it as a source-based governmental structure.
In my opinion as a researcher, although formalism is an integral part of case law and jurisprudence, it was overwhelmed and focused on only one aspect of a case. It is overwhelmed in the sense that it imposes a great deal of responsibility on the judge who decides the case solely on the basis of the rules and regulations provided for by law and, secondly, on the legislators of the country, who are supposed to make laws that are fair and perfect for the decision. Legal positivism is the thesis that the existence and content of the law depend on social facts and not on its merits. The English jurist John Austin (1790-1859) put it this way: However, positivism is sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “The function of jurisprudence is not the evaluation of its subject, but its worthless description” (1960 [1967: 68]) and Hart described his work at one point as “descriptive sociology” (1961 [2012: v]). But a description of what? “Law” is an anthropocentric subject that depends not only on our sensory incarnation, but also, as its necessary links with morality show, on our meaning and moral capacities. Legal types such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in all social descriptions. (This may limit the prospects for “naturalized” jurisprudence; for a defence of the contrary view, see Leiter 1997). Legal positivism is of course not an “evaluation of its object”, that is, an evaluation of the law. And to say that the existence of the law depends on social facts does not lead us to think that it is a good thing that this is so (nor does it exclude it: see MacCormick 1985 and Campbell 1996).