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15 Law & Phil. 1 (1996)

handle is hein.journals/lwphil15 and id is 1 raw text is: SEBASTIAN URBINA, PALMA LEGAL REASONING AND FORMAL CRITERIA OF RECOGNITION I. A GENUINE LEGAL POSITIVISM In this paper I shall try to show how MacCormick's definition of genuine legal positivism is unable to obtain what is claimed by that definition, that is, to know when a rule is a valid legal rule because it belongs to a given legal system and belongs to a legal system because it satisfies the operative formal criteria of recognition of that system. MacCormick says: Looking at it in the perspective of contem- porary controversy, one might say this: it is useful to take it as a defining characteristic of legal positivism that every genuine 'posi- tivist' holds that all rules which are rules of law are so because they belong to a particular legal system, and that they belong to the system because they satisfy formal criteria of recognition operative within that system as an effective working social order.1 But if a rule belongs to a legal system because of certain formal criteria of recognition, then we do not know what is the content of the rules belonging to that system because it cannot be derived from formal criteria of recognition. Hence, the criteria of recognition must be at least partially material. Insofar as natural languages or quasi-natural languages, like law, are naturally open, there will be the need of material criteria of recognition, explicit and/or implicit. I will go on later about these criteria, explicit and/or implicit ones.2 Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Law series, Oxford University Press, 1978), p. 61. 2 This paper is mainly based on Professor Neil MacCormick's famous work Legal Reasoning and Legal Theory. Professor MacCormick kindly read through this paper and presented important comments. Here, I have selected two of them. These points have been identified in the following in the proper footnotes. Other- Law and Philosophy 15: 1-63, 1996. © 1996 Kluwer Academic Publishers. Printed in the Netherlands.

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