Legal positivism is an influential theory concerning the nature of law. Legal positivism is traditionally understood to include a commitment to and defense of the following three theses:
• Pedigree Thesis: Legal validity is a function of certain social facts; in particular, legal validity is a function of how the law was historically generated.
• Separability Thesis: Law and morality are conceptually distinct. While some laws may reproduce moral obligations, it is not necessary that law incorporate or include moral content.
• Discretionary Thesis: Judges decide difficult cases by making new law in an exercise of discretion. In hard cases, the judge has a “quasi-legislative” power.
The most powerful and influential defense of legal positivism to date is found in H.L.A. Hart’s classic work, The Concept of Law. In that work, Hart argues that law is best understood as the union of primary rules of obligation with secondary rules of recognition, change, and adjudication (p.155). (a) First, explain the core components in Hart’s model for understanding law as the union of primary and secondary rules. What are these different kinds of rules? How are they related to one another? According to Hart, how does their combination give rise to a legal system imposing distinctively legal obligations on individuals? (b) Second, indicate how Hart’s model for understanding the nature of law seeks to give expression to “the pedigree thesis,” the “separability thesis,” and the “discretionary thesis.” (c) Drawing from the readings by Fuller, Dworkin, Altman, and/or Feinberg, identify what you consider to be the two most important objections to legal positivism and explain how, if these objections are true, legal positivism is undermined (or weakened). (d) Finally, given the objections you consider in part (c), do you believe legal positivism provides a compelling account of the nature of law? Why? Why not? Explain.
