Taking Rights Seriously

The “Ruling Theory of Law”

Legal positivism – the dominant theory of law – asserts that the law is made up of rules about the use of public power. According to this theory, no law exists outside of these rules. In cases where the law does not stipulate a ruling, judges have discretion to decide as they see fit. By “reaching beyond the law,” judges arrive at decisions that create new laws or add to existing ones. The process by which legal rules gain validity distinguishes them from other kinds of rules. Some legal rules (secondary rules) define how other legal rules (primary rules) come into or pass out of existence. The prevalent positivist view holds that in each community, a “rule of recognition” provides the standard, ultimately, by which the legality of all other rules is determined. Too, according to positivism, no legal rights exist except for those provided by the legal rules.

Positivism errs in its assertion that judges and lawyers only rely on legal rules when they argue and reason, however. In actual fact, they also base their justifications and decisions on principles. A principle’s power...