The Anarchist Official: A Problem for Legal Positivism

Abstract

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism.

Keywords: Philosophical anarchism, Political obligation, General jurisprudence, H.L.A. Hart, Legal positivism, Internal point of view, Rule of recognition, Joseph Raz