Legal theories between positivism and natural law
| Autor | Juliano S.A. Maranhão y Giovanni Sartor |
| Páginas | 73-93 |
4. LEGAL THEORIES BETWEEN POSITIVISM
AND NATURAL LAW
Juliano S.A. MARANHÃO*
Giovanni SARTOR**
1. INTRODUCTION
Eugenio B’s criticism of Robert A’s legal theory, particu-
larly of his «argument from injustice», provoked a reaction by A, from
which a rich discussion emerged, through six papers 1. This discussion en-
abled A to profit from B’s clarity of analysis and insight, and
develop a systematic framework, in which he distinguished different ap-
proaches to the positivity of law 2. It is not the purpose of this paper to
take sides or to try to explore critical junctures of the discussion. We will
rather proceed along the paths that this discussion has opened, and distin-
guish different versions of anti-positivism that may be brought about by
applying different variants of the so called «R’s formula», which
is central to A’s theory. First let us visit one of the core aspects of the
discussion between A and B.
In «The Argument From Injustice», A 3 proposes a concept of law
that refers to social authoritative sources and social efcacy, as in the posi-
tivist tradition. However, he also afrms that a legal system as a whole and
as its single norms necessarily make a claim of moral correctness. This claim
* University of São Paulo Law School and Center for Articial Intelligence C4AI/USP.
E-mail: julianomaranhao@usp.br.
** University of Bologna and European University Institute. E-mail: giovanni.sartor@unibo.it.
1 B, 1993, 2000, 2013; A, 1997, 2000, 2013.
2 For instance, A, 2003, 2010.
3 A, 2003.
74 JULIANO S. A. MARANHÃO - GIOVANNI SARTOR
entails, according to A, that normative systems that manifestly aims at
injustice and individual norms whose content or purposes are intolerably
immoral are invalid as law. Hence, following R, A defends
that «extremely unjust law is no law», what he acknowledges as a direct
rupture with the separation thesis, according to which there is no neces-
sary connection between positively enacted law and morality. As it is well
known, there are two versions of positivism corresponding to versions of
the separation thesis. According to the exclusive or hardcore version, the
identification of valid rules never requires engaging in critical moral rea-
soning; such an identification can only be based on social facts. According
to the inclusive or soft-core version, the identification of valid law may
require engaging in moral considerations, but only contingently, i.e., only
to the extent that legal sources refer to (incorporate) moral standards (e.g.,
due process) as criteria of legal validity. Thus, both versions hold social
sources as the ultimate foundation of law, even though some exclusivists
hold that inclusivists fail to support the social sources thesis consistently.
According to B there is a fundamental contradiction between
on the one hand the assumption that the identification of (valid) law is
source based and, and on the other hand the assumption that this identifi-
cation also depends on moral considerations. The source thesis, that seems
to be accepted by A, implies the separation thesis, and so A could
not reject the latter while keeping the former.
To overcome this apparent contradiction, A distinguishes two ap-
proaches to the law, the approach by the observer and the approach by the
participant. Observers are only interested in the factual or real dimension
of law, i.e., they do not ask «what the correct decision is in a certain legal
system, but, rather, how decisions are actually made in a certain legal sys-
tem» 4. Thus, for the observer, the law consists in a set of social facts, to
be empirically ascertained, i.e., in the legal sources broadly understood,
including enactments of laws and regulations, precedents, customs, and
shared normative attitudes by ofcers and citizens. On the contrary, for
participants, in particular judges and interpreters, the key issue is the cor-
rectness of decisions in disputations concerning «what is commanded,
forbidden, and permitted in this legal system and to what end this legal
system confers powers» 5. For determining whether decisions or interpre-
tations are legally correct, participants should consider not only to the fac-
tual-real dimension of law, but also its ideal dimension, which includes
questions of justice, i.e., of critical political morality. According to A,
this link between legal reasoning and correctness is manifested, and in-
deed embedded, in the procedure of rational argumentation, and in par-
ticular, in the balancing of conflicting principles, according to moral stan-
dards. The idea of legal correctness, while implying that participants do
not only focus on the factual-real dimension of the law, still requires that
this dimension is duly taken into account. This is necessary since moral
4 A, 2003: 25.
5 Ibid.: 25.
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