Although often associated with positivism, the thesis of discretion does not belong to the theoretical core of positivism. The theories of filiation and separability claim to be conceptual assertions that apply to all possible legal systems. These two claims together assert that in all possible legal systems, legal propositions are valid because they have been produced according to a set of social conventions. From this point of view, there are no moral restrictions on the content of the law that apply in all possible legal systems. Nor is it true that twentieth-century legal positivism stems directly from traditional theories of positive law: many leading positive law theorists, such as Thomas Aquinas, are not precursors of legal positivism, while some of the main precursors of what has become known as legal positivism almost never refer to positive law. as Jeremy Bentham (1782). The leading legal positivists of our time, such as Hart and Raz, almost never talk about positive law, whereas an eminent theorist of positive law today, John Finnis, is not a legal positivist. Despite its resemblance to this earlier critique, Dworkin`s semantic argument serves a deeper purpose. The semantic spur refers to all so-called semantic legal theories, which define the concept of law in the sense of «common rules». established the criteria that give meaning to the word» (Dworkin 1986, p. 31). Thus, while the preceding critique is directed against Hart`s alien presentation of social rules, the semantic spur is directed against what Dworkin sees as the core of the theoretical core of positivism, namely the assertion that there are common criteria that exhaust the conditions for the correct application of the concept of law. The author`s insistence on classifying these principles of legality as «morality» is a source of confusion for him and his readers.
The decisive objection to calling these principles of good legal morality, despite the «internal» characterization, is that it creates confusion between two concepts that must be separated: the concepts of intentional activity and morality. Poisoning is undoubtedly a useful activity, and reflections on its purpose can show that it has its internal principles. («Avoid poisons, no matter how deadly, if they make the victim vomit.») But to call these principles of the art of the poison mixer «the morality of poisoning» would only blur the distinction between the notion of effectiveness for a purpose and the final judgments about the activities and purposes with which morality deals in its various forms (Hart 1965, pp. 1285-86). According to Fuller, no system of rules that does not at least respect these principles of legality can achieve the essential purpose of the law, which is to achieve social order through the use of rules that guide behavior. A system of rules that doesn`t meet (P2) or (P4), for example, can`t control behavior because people can`t determine what the rules require. Accordingly, Fuller concludes that his eight principles are «internal» to law in the sense that they are embedded in the conditions of existence of law: «Total failure in one of these eight directions does not simply lead to a bad legal system; it leads to something that is not called a legal system at all» (Fuller 1964, p. 39). In Law`s Empire, Dworkin distinguishes two types of disagreements that jurists may have about the law. Lawyers can agree on the criteria that a rule must meet to be legally valid, but disagree on whether these criteria are met by a particular rule.
For example, two lawyers may agree that a rule is valid when passed by the state legislature, but disagree on whether the rule in question was actually passed by the state legislature. Such disagreements are empirical in nature and therefore do not pose theoretical difficulties for positivism. For example, under the U.S. Recognition Rule, a federal law is valid only if it has been enacted in accordance with the rules of procedure described in the body of the Constitution and is consistent with the First Fourteen Amendments. Because Hart believed that the U.S. recognition rule was a social rule, U.S. officials must agree on the procedures the federal government should follow when enacting laws, the set of penalties that make up the First Fourteen Amendments, and the requirement that federal laws comply with those changes. The problem with Dworkin`s analysis, however, is that it wrongly assumes that a public servant cannot enact a new law unless there are no legal norms limiting the official`s decision.