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10 Oxford J. Legal Stud. 449 (1990)
The Self-Destruction of Legal Positivism

handle is hein.journals/oxfjls10 and id is 457 raw text is: The Self-Destruction of Legal Positivism JEFFREY D. GOLDSWORTHY* 1. The Factual and Normative Aspects of Law' The legal decisions which judges make are essentially practical, not theoretical. Moreover, they are doubly practical. First, they include judgments of other people's actions, judgments of what others ought to have done or ought to do. Secondly they are decisions, based on those judgments, to act. Judges act by commanding other people-other legal officials and citizens-to perform specified actions.2 Thus, both the subject-matter and the conclusion of the reasoning leading to such decisions is how people, the judges and those under their authority, ought to act. It hardly needs mention that these decisions are grave: they affect reputation, property, liberty and sometimes human life itself. Since legal decisions are practical, legal reasoning-the reasoning on which those decisions are based, or in other words, by which they are justified-is practical reasoning. Its purpose, like that of prudential and moral reasoning, is to justify action. Immediately the central and most difficult questions of legal philosophy are posed. To what extent, if any, is legal reasoning different and separate from these other kinds of practical reasoning-and in particular, moral reasoning?3 In asking how they themselves or other people 'ought' to act, are judges asking a moral question, a distinct legal question involving a special non-moral sense of 'ought', or both? Are the ultimate grounds upon which the question should be answered-the grounds on which legal decisions are justified-moral, legal or both? Philosophical speculation as to the true nature or essence of law is inspired by questions such as these. The questions are puzzling because law seems to present two aspects.4 From one point of view it seems purely factual: a traveller in a foreign land can learn its law in the same way that he can learn its capital, currency, Head * Senior Lecturer in Law, Monash University, Australia. This article forms part of a doctoral thesis to be submitted to the Jurisprudence and Social Policy Program, University of California, Berkeley. 1 In the footnotes to this article, the following abbreviations will be used. AL: J. Raz, The Authority of Law (1979); ALM: J. Raz, 'Authority, Law and Morality' (1985) 68 The Monist 295; CL: H. L. A. Hart, The Concept of Law (1961); PRN: J. Raz, Practical Reason and Norms (1975); ULM: M. J. Detmold, The Unity of Law and Morality (1984). 2 M. J. Detmold has recently emphasized this aspect of law, in ULM. He refutes the view that a legal judgment is simply 'an authoritative certificate as to what the law requires' which must be executed by others who make, and are therefore responsible for, the relevant practical decisions, at 27-30. See also R. Dworkin, Law's Empire (1986), 1 and D. Lyons, 'Derivability, Defensibility, and the Justification of Judicial Decisions' (1985) 68 The Monist 325, 339. 3 This question can be asked of the other branches of practical reason. For example, there is debate as to whether moral reasoning is autonomous, or a branch of prudential reasoning (as a Hobbesian would argue). 4 These two aspects are discussed by G. Postema, 'The Normativity of Law', in R. Gavison, (ed), Issues in Contemporary Legal Philosophy, The Influence of H. L. A. Hart (1987), 81. © Oxford University Press 1990 Oxford Journal of Legal Studies Vol. 10, No. 4

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