About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

15 Law & Phil. 1 (1996)

handle is hein.journals/lwphil15 and id is 1 raw text is: SEBASTIAN URBINA, PALMA

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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most