Law and Public Reason
McGill Law Journal, Vol. 38, p. 367, 1993
28 Pages Posted: 22 Aug 2008
Date Written: August, 21 2008
In this article, the author argues that H.L.A. Hart's legal positivism is ultimately self-subverting. He contends that Hart fails in his attempt to show that positivism can explain the normativity and authority of law in a way which does not entail any commitment to the legitimacy of law; Hart's positivism cannot escape its origin in Thomas Hobbes's command theory of law which holds that positive law is always legitimate. Thus, Hart's positivism does not provide subjects with a genuine resource to test the legitimacy of law. However, the author concludes that such a resource might be found in Ronald Dworkin's legal theory, if he is understood as arguing that the legitimacy of law is a matter of principles immanent within the law.
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