Legal Positivism and the Rule of Law
34 Australian Journal of Legal Philosophy 53 (2009)
16 Pages Posted: 28 Apr 2012 Last revised: 18 Jul 2012
Date Written: August 18, 2009
I argue against the view that legal positivists cannot consistently endorse, as many do, both Lon Fuller's account of the formal elements of the rule of law (or a similar view), and the claim that an utter failure to conform to those elements results in no legal system at all. Legal positivists can consistently hold these views because (1) they need not, with Fuller, accept that law is a functional concept, and (2) Fuller's account does not offer any insights into the distinctive features of the rule-of-law ideal, but instead calls our attention to essential features of norms and normative systems more generally, especially ones in which there are norm-governed procedures for either creating norms or changing the application of existing norms. Fuller's elements of the rule of law applies to any system of conduct-guiding norms, whether it be legal, religious, or less momentous, like the rules of chess. Fuller and legal positivists therefore end up agreeing about certain aspects of the nature of norms and normative systems, and but not about anything distinctive about law.
Keywords: law, rule of law, jurisprudence, Fuller, legal positivism, Raz
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