Second, Hart`s standard of validity ignores the content of the law. Hart considers only the pedigree of creating the law. Hart therefore accepts the validity of «morally unjust laws» whose content has «no moral justification or force.» (Hart, 1994, p. 268). The political dimension of law is strongly defined in Blackstone`s jurisprudence. Society is founded for the protection of the individual. In addition to the standards of validity discussed above, Blackstone`s historical dimension dictates an almost absolute standard of legal autonomy. The law exercises its supremacy over the will of political leaders, whether kings or judges. (Blackstone 1838, p. 32).
Thomas Aquinas` Summa Theologica recognizes the three dimensions of law as potential sources of valid law. The moral dimension, however, exercises supremacy through a rigid norm of legal validity. Human laws that do not meet this standard are not only unenforceable; These are «legal perversions», «acts of violence» and «no law at all». (Thomas Aquinas, Summa Theologica, Quest. 94 Art. 4; Quest. 95 art. 2). There are good reasons for both positions. The main argument of the positivists is the argument of legal certainty. The broken wheel formula leads to a hidden retroactive effect which, in criminal law, constitutes a violation of the principle nulla poena sine lege.
This is because Radbruch`s formula trumps the laws of an unjust legal system that allows for extreme injustice. This is unacceptable, because the principle of nulla poena sine lege protects everyone, including the stooges of an unjust regime, as long as their atrocities are covered by the positive law of that system. The non-positive responds that, while legal certainty and, in particular, the nulla poena sine lege principle are high values, they are not the only values at stake. They contradict the material justice to which past and future victims of unjust regimes are entitled. Ultimately, these problems must be resolved by weighing the principles involved. In normal situations, the principle of nulla poena sine lege must prevail. In cases of extreme injustice, however, the situation is more difficult. There are good reasons to prioritize protecting the rights of past and future victims over protecting those who have become involved in the actions of an unjust state and who have relied on a legal justification for their actions on the basis of a «legal positivization» of injustice (Dyzenhaus 1999). As mentioned above, Dworkin`s arguments against positivism depend on claims about the phenomenology of jurisprudence and the limits imposed on jurisprudence by legal disagreements. Mark Greenberg`s recent work is based on many of Dworkin`s claims, but his conclusions are more radical in several respects (see Greenberg 2004 and 2014).
Greenberg`s central argument against positivism is methodological: no one, he argues, would deny that the content of the law depends, at least in part, on social facts. However, it is not possible to answer the question of which facts – such as the semantic content or intended effect of legal provisions – cannot be resolved by reference to others: «Legal practice . cannot determine their own relevance» (2004: 185). It is therefore necessary to appeal to other types of considerations – for Greenberg, reflections on the moral significance of our social practices. It is the mistake of positivism to claim that the law could be practical to the bottom. However, the fact that the content of the law depends on social sources is a truth that is usually confirmed by the law, as opposed to an establishment in local legal practices. There is a categorical difference between the validity of the source thesis – a truth about the law as a kind of social practice – and the claim that in Britain, for example, it is forbidden by law to drive more than 70 miles per hour on the motorway. In this way, the former explains the latter without circularity and without the need to invoke morality. The historicist school emphasizes the historical dimension of law.
The historicist school recognizes legal practice as the main source of applicable law. Custom law provides a standard of legal validity that imposes customary limits on the coercive powers of the political leader. Major historians include Sir Edward Coke, John Selden, Sir Matthew Hale and Sir William Blackstone. For Bentham and Austin, law is a phenomenon of societies with a ruler: a particular person or group who has de facto the highest and absolute power – they are obeyed by all or most of the others, but they themselves obey no one else. The laws of this society are a subset of the sovereign`s orders: general orders that apply to classes of actions and persons, supported by the threat of violence or «punishment.» This imperative theory is positivist because it identifies the existence of law with patterns of command and obedience that can be established without considering whether the sovereign has a moral right to govern or whether his orders are meritorious. It has two other special features. The theory is monistic: it presents all laws as a single form and imposes obligations on its subjects, but not on the sovereign himself. The imperativist recognizes that ultimate legislative power may be self-limited or limited from the outside by what public opinion will tolerate, and also that legal systems contain provisions that are not mandatory (e.g., permits, definitions, etc.).
But they consider them to be part of the non-legal material necessary for any legal system. (Austin is a bit more liberal on this.) The theory is also reductivist because it asserts that the normative language used to describe and establish law—conversations about authority, rights, duties, etc.—can be relentlessly analyzed in factual terms, usually as concatenations of statements about power and obedience. Natural law theory emphasizes the moral dimension of law. Natural law theory recognizes universal moral principles as the primary source of valid law. These moral principles provide a standard of legal validity that imposes moral limits on the coercive powers of the ruler.
