Legality/ Validity and Efficacy of Law
The main insight of Legal Positivism, that the conditions of legal validity
are determined by social facts, involves two separate claims, which have
been labeled The Social Thesis and The Separation Thesis. The Social
Thesis asserts that law is, profoundly, a social phenomenon, and that the
conditions of legal validity consist of social — that is, non-normative —
facts. Early Legal Positivists followed Hobbes' insight that the law is,
essentially, an instrument of political sovereignty, and they maintained
that the basic source of legal validity resides in the facts constituting
political sovereignty. Law, they thought, is basically the command of the
sovereign. Later legal Positivists have modified this view, maintaining that
social rules, and not the facts about sovereignty, constitute the grounds
of law. Most contemporary legal Positivists share the view that there are
conventional rules of recognition, namely, social conventions, which
determine certain facts, or events that provide the ways for the creation,
modification, and annulment of legal standards. These facts, such as an
act of legislation or a judicial decision, are the sources of law
conventionally identified as such in each and every modern legal system.
One way of understanding the legal positivist position here is to see it as
a form of reduction: legal positivism maintains, essentially, that the legal
domain is reducible to facts of a non-normative type, that is, facts about
people's conduct, beliefs and attitudes.
Natural lawyers deny this insight, insisting that a putative norm cannot
become legally valid unless it passes a certain threshold of morality.
Positive law must conform in its content to some basic precepts of Natural
Law, that is, universal morality, in order to become law in the first place.
In other words, Natural Lawyers maintain that the moral content of norms,
and not just their social origins, also forms part of the conditions of legal
validity. And again, it is possible to view this position as a non-reductive
conception of law, maintaining that legal validity cannot be reduced to
non-normative facts.
The Separation Thesis is an important negative implication of the Social
Thesis, maintaining that there is a conceptual separation between law
and morality, that is, between what the law is, and what the law ought to
be. The Separation Thesis, however, has often been overstated. It is
sometimes thought that Natural Law asserts, and Legal Positivism denies,
that the law is, by necessity, morally good or that the law must have
some minimal moral content. The Social Thesis certainly does not entail
, the falsehood of the assumption that there is something necessarily good
in the law. Legal Positivism can accept the claim that law is, by its very
nature or its essential functions in society, something good that deserves
our moral appreciation. Nor is Legal Positivism forced to deny the
plausible claim that wherever law exists, it would have to have a great
many prescriptions, which coincide with morality. There is probably a
considerable overlap, and perhaps necessarily so, between the actual
content of law and morality. Once again, the Separation Thesis, properly
understood, pertains only to the conditions of legal validity. It asserts that
the conditions of legal validity do not depend on the moral content of the
norms in question. What the law is cannot depend on what it ought to be
in the relevant circumstances.
Many contemporary legal Positivists would not subscribe to this
formulation of the Separation Thesis. A contemporary school of thought,
called Inclusive Legal Positivism, endorses the Social Thesis, namely, that
the basic conditions of legal validity derive from social facts, such as
social rules or conventions, which happen to prevail in a given
community. But, Inclusive Legal Positivists maintain, legal validity is
sometimes a matter of the moral content of the norms, depending on the
particular conventions that happen to prevail in any given community.
Those social conventions on the basis of which we identify the law may,
but need not, contain reference to moral content as a condition of
legality.
The Natural Law tradition has undergone a considerable refinement in the
20th century, mainly because its classical, popular version faced an
obvious objection about its core insight. Basically, it is just difficult to
maintain that morally bad law is not law. The idea that law must pass, as
it were, a kind of moral filter in order to count as law strikes most jurists
as incompatible with the legal world as we know it. Therefore,
contemporary Natural Lawyers have suggested different and subtler
interpretations of the main tenets of Natural Law. For example, John Finnis
views Natural Law (in its Thomist version) not as a constraint on the legal
validity of positive laws, but mainly as an elucidation of an ideal of law in
its fullest, or highest sense, concentrating on the ways in which law
necessarily promotes the common good. As we have noted earlier,
however, it is not clear that such a view about the necessary moral
content of law is at odds with the main tenets of Legal Positivism.
The idea that the conditions of legal validity are at least partly a matter of
the moral content of the norms is articulated in a sophisticated manner by
The main insight of Legal Positivism, that the conditions of legal validity
are determined by social facts, involves two separate claims, which have
been labeled The Social Thesis and The Separation Thesis. The Social
Thesis asserts that law is, profoundly, a social phenomenon, and that the
conditions of legal validity consist of social — that is, non-normative —
facts. Early Legal Positivists followed Hobbes' insight that the law is,
essentially, an instrument of political sovereignty, and they maintained
that the basic source of legal validity resides in the facts constituting
political sovereignty. Law, they thought, is basically the command of the
sovereign. Later legal Positivists have modified this view, maintaining that
social rules, and not the facts about sovereignty, constitute the grounds
of law. Most contemporary legal Positivists share the view that there are
conventional rules of recognition, namely, social conventions, which
determine certain facts, or events that provide the ways for the creation,
modification, and annulment of legal standards. These facts, such as an
act of legislation or a judicial decision, are the sources of law
conventionally identified as such in each and every modern legal system.
One way of understanding the legal positivist position here is to see it as
a form of reduction: legal positivism maintains, essentially, that the legal
domain is reducible to facts of a non-normative type, that is, facts about
people's conduct, beliefs and attitudes.
Natural lawyers deny this insight, insisting that a putative norm cannot
become legally valid unless it passes a certain threshold of morality.
Positive law must conform in its content to some basic precepts of Natural
Law, that is, universal morality, in order to become law in the first place.
In other words, Natural Lawyers maintain that the moral content of norms,
and not just their social origins, also forms part of the conditions of legal
validity. And again, it is possible to view this position as a non-reductive
conception of law, maintaining that legal validity cannot be reduced to
non-normative facts.
The Separation Thesis is an important negative implication of the Social
Thesis, maintaining that there is a conceptual separation between law
and morality, that is, between what the law is, and what the law ought to
be. The Separation Thesis, however, has often been overstated. It is
sometimes thought that Natural Law asserts, and Legal Positivism denies,
that the law is, by necessity, morally good or that the law must have
some minimal moral content. The Social Thesis certainly does not entail
, the falsehood of the assumption that there is something necessarily good
in the law. Legal Positivism can accept the claim that law is, by its very
nature or its essential functions in society, something good that deserves
our moral appreciation. Nor is Legal Positivism forced to deny the
plausible claim that wherever law exists, it would have to have a great
many prescriptions, which coincide with morality. There is probably a
considerable overlap, and perhaps necessarily so, between the actual
content of law and morality. Once again, the Separation Thesis, properly
understood, pertains only to the conditions of legal validity. It asserts that
the conditions of legal validity do not depend on the moral content of the
norms in question. What the law is cannot depend on what it ought to be
in the relevant circumstances.
Many contemporary legal Positivists would not subscribe to this
formulation of the Separation Thesis. A contemporary school of thought,
called Inclusive Legal Positivism, endorses the Social Thesis, namely, that
the basic conditions of legal validity derive from social facts, such as
social rules or conventions, which happen to prevail in a given
community. But, Inclusive Legal Positivists maintain, legal validity is
sometimes a matter of the moral content of the norms, depending on the
particular conventions that happen to prevail in any given community.
Those social conventions on the basis of which we identify the law may,
but need not, contain reference to moral content as a condition of
legality.
The Natural Law tradition has undergone a considerable refinement in the
20th century, mainly because its classical, popular version faced an
obvious objection about its core insight. Basically, it is just difficult to
maintain that morally bad law is not law. The idea that law must pass, as
it were, a kind of moral filter in order to count as law strikes most jurists
as incompatible with the legal world as we know it. Therefore,
contemporary Natural Lawyers have suggested different and subtler
interpretations of the main tenets of Natural Law. For example, John Finnis
views Natural Law (in its Thomist version) not as a constraint on the legal
validity of positive laws, but mainly as an elucidation of an ideal of law in
its fullest, or highest sense, concentrating on the ways in which law
necessarily promotes the common good. As we have noted earlier,
however, it is not clear that such a view about the necessary moral
content of law is at odds with the main tenets of Legal Positivism.
The idea that the conditions of legal validity are at least partly a matter of
the moral content of the norms is articulated in a sophisticated manner by
