Legal Principles and the Limits of Law
![handle is hein.journals/ylr81 and id is 841 raw text is: Legal Principles and the Limits of Law
Joseph Raz*
Most people tend unreflectively to assume that laws belong to legal
systems. Most educated people, writes H. L. A. Hart, have the
idea that the laws in England form some sort of system, and that in
France or the United States or Soviet Russia and, indeed, in almost
every part of the world which is thought of as a separate 'country'
there are legal systems which are broadly similar in structure in spite
of important differences.' This includes for most people the assump-
tion that laws differ from non-legal rules and principles. There are,
for example, moral rules and principles, social customs, constitutions
and regulations of voluntary associations, and so on, which are not
laws. Many legal philosophers have tried to justify this common as-
sumption. Various criteria have been offered for demarcating the
limits of law, for testing whether or not a particular standard belongs
to a particular legal system. Various suggestions have been made con-
cerning the importance of the distinction between what is legal and
what is not, and the ways in which, by preserving it, we promote our
understanding of law and society. For it has often been acknowledged
that the distinction is not an easy one to draw in precise terms, and
that any reasonable test would admit the presence of borderline cases.
Despite these difficulties many theorists have thought that the distinc-
tion is worth preserving, partly because it is not difficult to apply in
the majority of cases and partly because it seemed to them crucial for
a proper understanding of law and society.
On this, as on almost any other fundamental question, opinions
differ. There have been theorists who disputed the possibility of draw-
ing the distinction between laws and non-legal norms, or who thought
that far from clarifying it actually obscures our understanding of law
and society. Recently, in a powerful article, Professor Dworkin has
joined those who challenge the orthodox position that what is law may
be separated from what is not. But the way in which Professor Dworkin
formulates his conclusion is revealing. I conclude, he writes, that
... we must reject the positivists' first tenet, that the law of a com-
munity is distinguished from other social standards by some test in
the form of a master rule.2 He clearly believes that there is no test,
* Senior Research Fellow, Nuffield College, Oxford. M. Jur. 1954. Hebrew University,
Jerusalem; D. Phil. 1967, Oxford.
1. H.L.A. HART, THE CONCEPT OF LAW 2-3 (1951).
2. Dworkin, The fodel of Rules, 35 U. Ciu. L. REv. 14, 45 (1967), reprintcd under
the title Is Law A System of Rules?, in Ess.,,s IN LEAL l HILOSOi'Y 25. 59 (R. Summers
ed. 1968) [hereinafter cited as Dworkin, with page references to the original article and,
in brackets, to the reprinted paper].
823](ViewImageLocal?handle=hein.journals/ylr81&div=37&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Legal Principles and the Limits of Law
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most