Social Rules and Legal Theory

In 1967 I published an article in which I argued that the central propositions of the legal theory I called positivism were in error and must be abandoned.'In particular, I argued that it is wrong to suppose, as that theory does, that in every legal system there will be some commonly recognized fundamental test for determining which standards count as law and which do not.I said that no such fundamental test can be found in complicated legal systems, like those in force in the United States and Great Britain, and that in these countries no ultimate distinction can be made between legal and moral standards, as positivism insists.I might summarize the argument I made in this way.I said that the thesis that there exists some commonly recognized test for law is plausible if we look only at simple legal rules of the sort that appear in statutes or are set out in bold type in textbooks.But lawyers and judges, in arguing and deciding lawsuits, appeal not only to such blackletter rules, but also to other sorts of standards that I called legal principles, like, for example, the principle that no man may profit from his own wrong.This fact faces the positivist with the following difficult choice.He might try to show that judges, when they appeal to principles of this sort, are not appealing to legal standards, but only exercising their discretion.Or he might try to show that, contrary to my doubts, some commonly-recognized test always does identify the principles judges count as law, and distinguishes them from the principles they do not.I argued that neither strategy could succeed.A number of lawyers have been kind enough to reply to my argument; the article by Dr. Raz in the present issue of this journal is a distinguished example. 2 The chief points made against my argument seem to be these.