As a result, Dworkin rejects not only the social fact thesis of positivism, but also what he considers to be the underlying presuppositions of legal theory. Hart distinguishes two perspectives from which a range of legal practices can be understood. A legal practice can be understood both from the “internal” perspective of the person who accepts the practice as a legitimate guideline of conduct and from the “external” perspective of the observer who wishes to understand the practice but does not accept it as authoritative or legitimate. In this passage, Blackstone articulates the two statements that form the theoretical core of classical naturalism: 1) There can be no legally valid norms that contradict natural law; and 2) all valid laws derive their power and authority from natural law. From this point of view, to paraphrase Augustine, an unjust law is not a law at all. It is worth noting the relationship between legal realism, formalism and positivism. Although it is often assumed that formalism is accompanied by positivism, it turns out that legal realism is not only compatible with positivism, but also presupposes the truth of the three fundamental theses of positivism. Indeed, the realist recognizes that the law is essentially the product of official activity, but believes that judicial legislation is more frequent than is generally believed. But the idea that law is essentially the product of official activity presupposes the truth of positivism`s theses on conventionality, social facts and separability.
Although the realists` concerns were empirical (i.e., that they sought to identify the psychological and sociological factors that influenced judicial decision-making), their implicit conceptual obligations were decidedly positivist. Intentions are mental states, but legislators who draft laws and then enact them may have many different mental states that are relevant to the interpretation and construction of laws. A type of intention may be called the legislator`s “communicative intent”. The communicative intentions specify the content that the legislator intended to convey to readers of the law. If the drafters of the law were to use words in their usual and ordinary sense, we would expect the communicative intentions of legislators to be very similar in the clear meaning of the text of the law. According to Hart`s view of the social fact thesis, a sentence P is legally valid in an undertaking S only if it meets the validity criteria contained in a binding recognition rule in S. As we have seen, the conventional argument implies that an S-recognition rule is binding only if there is a social agreement between civil servants to treat them as defining standards of official conduct. According to Hart, “[t]he rules of recognition, which establish the criteria for validity and their rules for modification and jurisprudence, must therefore be effectively accepted as common public standards for the official conduct of their public servants” (Hart, 1994, p. 113). A thoughtful judge might, for example, set an approximate “threshold” of adaptation that any interpretation of the data must meet in order to be “acceptable” in terms of the size of the accommodation, and then assume that if more than one interpretation of a part of the law reaches that threshold, the choice should be made between them. not by further and more precise comparisons between the two according to this dimension, but by choosing an interpretation that is better “substantially,” that is, that better promotes the political ideals he considers right (Dworkin 1982, p.
171). Legal interpretation is familiar to lawyers, judges and legal theorists. Public and private disputes of paramount importance revolve around questions of interpretation of legal texts. Nevertheless, there are deep and pervasive controversies about the correct theory or method of legal interpretation. One reason for this controversy is that, perhaps surprisingly, there is no consensus on the more fundamental question of what legal interpretation is – in particular, what its constitutive purpose is. For example, does legal interpretation seek the linguistic meaning of legal texts, the best possible resolution of disputes, or the contribution of legislation to the content of the law? Without progress on this fundamental issue, progress cannot be expected in understanding the correct method of interpreting the law. 26 On the other hand, there is a narrow meaning of legal interpretation, to which I shall refer the expression `interpretation of the law`, which refers to interpretative activity centred on texts, an activity initiated by lawyers, judges, civil servants, etc.; an activity whose subject matter is precisely legal documents (e.g. laws, regulations, awards, contracts, etc.).