The positivist might counter that the Riggs Tribunal, in considering this principle, extended beyond the law to extra-legislative norms in the exercise of judicial discretion. But Dworkin points out that Justices Riggs would have been „justified“ in ignoring this principle; If it were merely an extrajudicial standard, there would be no legitimate reason to criticize the failure to take into account (Dworkin 1977, p. 35). Therefore, Dworkin concludes that the best explanation for the appropriateness of such criticism is that the principles are part of the law. The British legal positivism mentioned so far was based on empiricism; in contrast, Germanic legal positivism was based on the transcendental idealism of the German philosopher Immanuel Kant. While British legal positivists view law as separate from morality, their Germanic counterparts view law as separate from facts and morality. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose thesis of legal positivism is explained by Suri Ratnapala, who writes: Moreover, including positivists, argue that Dworkin`s own account of principles agrees with the pedigree thesis. As Hart puts it, „This interpretive test does not seem to be an alternative to a criterion provided by a rule of recognition, but. only a complex form of `soft positivism` of such a criterion, which identifies principles by their content and not by their pedigree“ (Hart 1994, p. 263). The familiar idea of section II is that a recognition rule may contain substantial restrictions on legal validity, including those that are ultimately rooted in morality. The problem with Dworkin`s analysis, however, is that it wrongly assumes that a public servant cannot enact a new law unless there are no legal norms limiting the official`s decision. In fact, lawmakers in countries like the United States have done so.

never have what Dworkin describes as strong discretion. Even legislative decisions by Congress, the nation`s highest legislative authority, are still constrained by constitutional norms. For example, under the Fourteenth Amendment, Congress cannot pass a law setting a speed limit for male drivers on highways and another for female drivers. The idea of natural law is generally in total contradiction with legal positivism because it postulates that moral concerns are more important than what is actually written. In practice, most democratic governments apply laws in a way that does not coincide with either extreme. For example, the law may require that a person be arrested for a crime that most citizens do not support on ethical grounds. However, once the person goes to court, a judge and jury may decide to be very easy with their conviction or even refuse to convict the person completely. In this way, there is a human element of natural law that sometimes serves as moderation to the potential harshness of legal positivism. 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 author`s insistence on classifying these principles of legality as „morality“ is a source of confusion for him and his readers. The decisive objection to calling these principles of good legal morality, despite the „internal“ characterization, is that it creates confusion between two concepts that must be separated: the concepts of intentional activity and morality. Poisoning is undoubtedly a useful activity, and reflections on its purpose can show that it has its internal principles. („Avoid poisons, no matter how deadly, if they make the victim vomit.“) But to call these principles of the art of the poison mixer „the morality of poisoning“ would only blur the distinction between the notion of effectiveness for a purpose and definitive judgments about the activities and purposes that morality treats in its various forms (Hart 1965, pp.