ABSTRACT
This chapter identifies the two main traditions that have held the field in contemporary debate, natural law theories and legal positivism. It focuses on the main philosophical conundrum of legal philosophy, the distinction between law and morality, and outlines some of the most important contributions to this debate in historical perspective. Natural law theory was the first systematic attempt to bind the moral with the legal. In the words of a Natural law theorist John Finnis ‘the criteria by which a law should be judged right or wrong ‘are prior to any human choices, whether individual or collective, and cannot be repealed’ (Finnis, 2001: 1). This theory eventually paved way for its critics, Legal Positivism. All legal positivists deny a necessary connection between law and morality. Legal Positivism is the doctrine according to which there are no criteria which are prior to or dependent (at least to some extent) on moral or metaphysical conceptions. John Austin, presented what neo-Legal Positivists consider an oversimplified version where law is presented as a command. H.L.A. Hart theorizes there are primary rules distinct from secondary rules and that there is a rule of recognition which decides whether a primary rule is properly a part of the legal system. Hans Kelsen, a proponent of Legal Formalism believed that what gives validity to an entire legal system is one basic norm, an authorization to officials to impose sanctions. This norm is pre-supposed in legal theory. Next points of discussion in this chapter are the Hart–Fuller debate and the Dworkin–Raz debate.
