Legal positivism is linked to empiricist and logico-positivist theoretical traditions. Its methods include descriptive surveys of selected legal systems. Peter Curzon wrote that this approach «uses the inductive method in its investigations,» which progresses «from the observation of certain facts to the generalization of all these facts.» [7] These studies avoid assessments of ethics, social welfare and morality. As Julius Stone wrote, the legal positivist inquiry is primarily concerned with «an analysis of legal concepts and an examination of the logical relations of legal propositions.» [ref. needed] Moreover, law and its authority are formulated as source-based: the validity of a legal norm does not depend on its moral value, but on the sources determined by the rules and conventions of a social community. [7] This source-based conception is consistent with the logical positivism of Rudolf Carnap, who rejected metaphysical assumptions about the nature of reality beyond observable events. Dworkin`s rich and complex arguments elicited various responses from positivists. One response denies the relevance of phenomenological claims. Controversy is a matter of degree, and a host of it that destroys consensus is not proven by the existence of contradictory arguments before the supreme courts or even before the courts. Equally important is the wide range of permanent law, which leaves little doubt and guides social life outside the courtroom (cf. Leiter 2009). As for the diversity argument, far from being a refutation of positivism, it is a consequence of it.
Positivism does not identify the law with all valid reasons for decision, but only with the subset of these based on the source. It is not part of the positivist assertion that the recognition rule tells us how to decide cases, or even identifies all the relevant reasons for a decision. Positivists accept that moral, political, or economic considerations are really effective in making legal decisions, as are linguistic or logical considerations. The modus ponens applies both inside and outside the courts, but not because it has been adopted by the legislature or decided by the judges, and the fact that there is no social rule confirming both modus ponens and municipal law is true but irrelevant. The authority of the principles of logic (or morality) is not something that can be explained by the philosophy of law; the authority of Parliament`s actions must be; And taking difference into account is a central task of legal philosophy. The evaluative argument is, of course, at the heart of legal philosophy in general. No legal philosopher can only be a legal positivist. A full understanding of the law also requires accountability for what might be considered the merits of the law (should the law be effective or elegant and fair?); what role should the law play in the judicial system (should valid law always be applied?); what claim does the law have to our obedience (is there a duty to obey?); And also the more practical questions of what laws we should have and whether we should be right. Legal positivism does not seek to answer these questions (although Murphy 2014:88-108 to argue that the theory has important first-rate implications for legal practice). Nevertheless, positivism`s assertion that the existence and content of law depend only on social facts gives shape to them.
In response, positivists admit that there are legal principles, but argue that their authority as a law can be explained by the conventions generally contained in recognition: the most influential criticisms of legal positivism all stem in one way or another from the suspicion that it does not give morality what it deserves. A theory that emphasizes the factuality of law seems to contribute little to our understanding that law has important functions in ensuring the proper functioning of human life, that the rule of law is a cherished ideal, and that the language and practice of law are highly moralized. Accordingly, critics of positivism argue that the most important features of law are not to be found in its source-based character, but in the ability of law to promote the common good, protect human rights, or govern with integrity. Historically, legal realism has emerged as a reaction to legal formalism, a particular model of legal reasoning that equates legal reasoning with syllogistic argumentation. The formalist model is followed by the legal result (i.e. exploitation) logically from the legal norm (main premise) and a determination of the relevant facts (secondary premise). Realists believe that formalism underestimates the capabilities of judicial law-making insofar as it presents legal results as they are syllogistically provoked by the applicable rules and facts. For if legal results are logically implied by sentences that bind judges, it follows that judges do not have the legal authority to obtain contradictory results. Yet Dworkin`s perspective doesn`t fare any better in this regard. While Dworkin recognizes the existence of difficult cases that do not clearly fall within a rule, he believes they will not be resolved through the exercise of judicial discretion. According to Dworkin, there is always a correct answer to such cases, which is implicitly contained in the already existing law.
Of course, sometimes it takes a judge with Herculean intellectual capacity to discern what the right answer is, but he is always there to find the right in the one that already exists. Since the right answer to litigation, even a difficult one, is always part of the pre-existing law, Dworkin believes that a judge can take property away from a defendant in a difficult case without injustice (Dworkin 1977, p.