Rather, Hart argues that his legal theory is «a descriptive account of the particularities of the law in general as a complex social phenomenon» (Hart, 1994, p. 246). Hart presents his theory not as a representation of how people apply the concept of law, but as a representation of what distinguishes legal systems from other systems of social rules. According to Hart, it is the existence of a rule of recognition that establishes criteria of validity that distinguishes the law from other systems of social rules. According to Hart, Dworkin`s critique fails because it wrongly characterizes positivism as a criteria-based explanation of the concept of law. Austin`s view is difficult to reconcile with U.S. constitutional law. The courts regard the procedural and substantive provisions of the Constitution as limitations on legal validity. The Supreme Court, for example, has held that «an unconstitutional act is not law; it confers no rights; it does not impose tariffs; It is, from a legal point of view, as ineffective as if it had never been adopted. (Norton v.
Shelby County, 118 U.S. 425 (1886)). Moreover, these constraints claim to be legal restrictions: the primacy clause of Article VI of the Constitution states that «[t]he Constitution […] is the supreme law of the land; and the judges of each State are bound to it. The second thesis, which forms the basis of legal positivism, is the separability thesis. In its most general form, the separability thesis asserts that law and morality are conceptually different. This abstract formulation can be interpreted in several ways. For example, Klaus Faber (1996) interprets it as a meta-level assertion that the definition of law must be completely devoid of moral notions. This interpretation implies that any reference to moral considerations in the definition of the related concepts of law, legal validity and legal system is incompatible with the theory of severability.
The controversy between the judges does not arise over the content of the recognition rule itself. It determines which standards correspond to the standards set out therein. Differences in behaviour among public servants, as evidenced by the fact that they identify different norms as legal norms, do not prove that they do not accept the same rule of recognition. On the contrary, judges accept the same conditions of truth for legislative proposals. They disagree on theses that meet these conditions (Coleman 1982, p. 156). For Bentham and Austin, law is a phenomenon of societies with a sovereign: 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. The law therefore has its ultimate foundation in the behaviour and attitudes of its public servants. In the eyes of some, this still seems to imply a puzzling reduction: how can we generate the targets of the legal world from the official consensus? Such concerns motivate Scott Shapiro`s understanding of law and his attempt to break with Hart`s theory: laws, he suggests, should be understood as «generalized plans or plan-like norms issued by those who are authorized to plan for others» (2011: 155). Understanding law according to the model of social planning, Shapiro argues, frees us from misplaced concerns about its metaphysical basis. Just as you or I can adopt a plan for our time simply by willing, so officials in a legal system can make or discern plans for its subjects. However, to the extent that a problem remains, it is not clear whether the concept of planning itself offers a deeper explanation. First of all, planning, whether individual or collective, involves establishing rules in order to achieve certain objectives.
Thus, the ontology of plans becomes part and parcel of the more general ontology of rules, on which Hart rightly focused. Second, it is not clear whether the mechanisms of the law are properly captured under the planning label (for example, should the anti-theft law be viewed as a plan that people do not deprive others of their property? – a somewhat implausible interpretation of the relevant order – or whether the planning element is exhausted by the decision to create the prohibition, in which case the law is not the plan). Nevertheless, Shapiro`s report is a useful reminder that the theoretical complexity of law as a social species does not make an understanding of its foundation based on the daily actions of its actors implausible. In this, he agrees with Hart. According to Dworkin, the thesis of the discretion of positivism is engaged in the third sense of discretion, which he calls strong discretion. According to Dworkin, the thesis that judges have discretion only in the sense that they exercise judgment is trivially true, while the thesis that judges have discretion in the sense that their decisions cannot be overturned by a superior court is false.