Legal principles, like other laws, may be adopted or repealed by legislators and administrative authorities. They may also become legally binding by court order. Many legal systems recognize that rules and principles may be enshrined in law or lose their status as law by case law (Raz 1972, p. 848). According to Fuller, no system of rules that does not at least respect these principles of legality can achieve the essential purpose of the law, which is to achieve social order through the use of rules that guide behavior. A system of rules that doesn`t meet (P2) or (P4), for example, can`t control behavior because people can`t determine what the rules require. Accordingly, Fuller concludes that his eight principles are “internal” to law in the sense that they are embedded in the conditions of existence of law: “Total failure in one of these eight directions does not simply lead to a bad legal system; it leads to something that is not called a legal system at all” (Fuller 1964, p. 39). There are many difficulties with this, including the fact that if we want to accept the basic standard as a solution, it is not clear what we thought was the problem in the first place.

It cannot be said that the premise of the fundamental norm validates all lower norms, nor that a lower norm is part of the legal system only if it is linked to the fundamental norm by a chain of validity. We need a way to get into the circle. Moreover, it wrongly draws the boundaries of legal systems. The 1982 Canadian Constitution was legally created by a law of the United Kingdom. Parliament and, on that basis, Canadian and English law should be part of a single legal system based on a fundamental standard: “The (first) British Constitution must be respected.” Nevertheless, English law is not binding in Canada, and a purported repeal of the Constitution Act by the United Kingdom would have no legal effect in that country. Most often, the separability thesis is interpreted in such a way that it only makes an assertion at the object level about the conditions of existence for legal validity. As H.L.A. Hart describes it, the separability thesis is nothing more than “the mere assertion that it is by no means a necessary truth that laws reproduce or satisfy certain requirements of morality, when in fact they have often done so” (Hart 1994, pp. 181-82). To the extent that the object-oriented interpretation of the separability thesis denies that it is necessary that there be moral limits to legal validity, it implies the existence of a possible legal system in which there are no moral restrictions on legal validity. Legal positivism has a long history and great influence.

It has precursors in ancient political philosophy and is discussed in medieval legal and political thought, and the term itself is introduced (see Finnis 1996). Modern teaching, however, owes little to these ancestors. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first complete elaboration is due to Jeremy Bentham (1748-1832), whose narrative Austin adopted, modified and popularized. For much of the next century, an amalgam of their views, according to which law is the imperative of a ruler supported by force, dominated philosophical reflection on law. By the mid-twentieth century, however, this narrative had lost its influence among active legal philosophers. His focus on legislative institutions has been replaced by a focus on law enforcement institutions such as the courts, and his emphasis on the role of coercive power has given way to theories emphasizing the systematic and normative nature of law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominant figures of analytic legal philosophy, H.L.A. Hart (1907-92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. However, the importance of legal positivism is not limited to the philosophy of law.

This can be seen throughout social theory, especially in the works of Marx, Weber and Durkheim, and also in many jurists, including American “legal realists” and most contemporary feminist academics. Although they disagree on many other points, these authors all recognize that the law is essentially a matter of social fact. Some of them are uncomfortable with the label of “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use the term “positivist” offensively to condemn a formalist doctrine that the law is always clear and, no matter how foolish or erroneous, must be rigorously enforced by officials and followed by subjects. It is doubtful that anyone has ever had this view, but it is definitely wrong and has nothing to do with legal positivism.