The limits of legal positivism

Abstract

<p>In his book <em>Advanced Introduction to Legal Positivism</em>, Kaarlo Tuori focuses on the legal philosophies of two of the perhaps most important legal theorists of the 20^th century, Hans Kelsen and H.L. A. Hart. Although Tuori’s work is highly critical, he seems to share some fundamental theses accepted by his targets: (1) The Normativity Thesis, (2) The Social Thesis, and (3) The Separability thesis. What, then, are Tuori’s complaints against the Kelsenian and Hartian versions of positivism? He argues that the positivist description of law is inadequate, not because of what it includes, but because of what it leaves out. It describes law as a self-contained, autonomous, and united system, leaving out law’s relations to politics, questions of legal interpretation and argumentation, issues related to constitutional morality, and most of the questions related to rationality. I agree that Kelsen’s and Hart’s positivisms have very little to contribute to discussions on the most important issues of the criticism of law. Nevertheless, they have something to offer. Although they were not successful in their attempts to solve the problem of legal normativity, they made a very important contribution by pointing out that there <em>is</em> a genuine problem.<br></p>