Hart`s 1957 lecture, “Positivism and the Separation of Law and Morality,” focused on three doctrines advocated by Bentham and Austin. The first, which Hart argues, is the emphasis on the “sense of distinctive vocabulary of the law.” The second doctrine to which Hart adheres is the separation of law and morality. Hart holds the law “as it is” differently from the law “as it should be.” This distinction rejects moral norms as a test of legal validity. (Hart 1958, pp. 594, 601). The historical dimension of the law dominates Blackstone`s jurisprudence. Custom is “the first reason and the most important cornerstone” of the common law. Custom includes legal norms such as the rule of primogeniture, which states that the oldest male descendant inherits the entire estate. Custom also includes legal principles in the form of maxims such as “the king cannot do harm,” “no man is obliged to accuse himself,” and “no man should profit from his own injustice.” The historical dimension of the law is so strong at common law that approved laws have been interpreted and interpreted strictly to the extent possible to conform to pre-existing practices. (Blackstone 1838, pp.
46, 50). Austin`s “theory of command” defines law as (a) orders, (b) supported by the threat of sanctions, (c) by a sovereign, (d) to whom people are accustomed to obeying. A common criticism of Austin`s theory is that the command of an armed highwayman arguably fits the definition of Austin`s law. Aristotle ensures legal justice by restricting the will of the political leader through autonomous laws. Politics teaches that unbridled power produces tyranny, even in democracies. Aristotle wonders whether societies function better under the “rule of men” or the “rule of law.” He concludes that laws, if they are good, should come first. Political leaders should simply supplement the law by acting as guardians and ministers. They should only regulate matters that laws cannot speak to precisely, as it is difficult for a general principle to include all the details. (Aristotle, Politics, 1282b). N2 – The purpose of this article is to use the elusive phenomena of legal validity and soft law to enlighten each other. There are three concepts of legal validity. The validity of the source and binding force (in a particular technical sense) are domestic legal terms used in legal argumentation.
On the contrary, efficiency (even in a particular technical sense) is an external term used in descriptive legal theories such as the sociology of law or legal theory. The validity of the source is a characteristic, among others, of sources of law, and something has been made valid in this sense if it has been made by a competent agent in accordance with the appropriate procedure. A rule has binding effect if that rule exists and creates legal consequences when applied. A rule is effective if its consequences are accepted by the legal entities concerned, including civil servants. With these three notions of legal validity, the focus of the argument shifts to the nature of soft law and how it connects with the three notions of legal validity. For a correct analysis of soft law, three elements are necessary. First, it is necessary to replace the traditional view of rules-based legal reasoning with one that focuses on reasons rather than rules. To this end, a special logic for reasons, logic based on reasons, is introduced into the argument.
On the other hand, it is appropriate to replace the concept of legal justification, according to which justification consists of an argument for the purpose of justifying as a conclusion, by a view which emphasises the dialogical nature of the justification. To this end, a dialogical variant of reason-based logic is briefly explained. And thirdly, the conception of legal argumentation as a reconstruction of independently existing legal effects must be replaced by a constructivist view, according to which the legal consequences are determined by means of a legal argument. On the basis of these three changes of perspective, the definition of soft law as a law that is less easy to use in legal reasoning becomes understandable. In addition, the tools available through the introduction of the three terms validity, dialogical logic of reason and constructivism make it possible to identify various reasons why legal rules can be soft: limited applicability, dubious binding power, frequent exceptions and weak reasons for the consequences of the rules. These principles work within the moral and historical dimensions of the law to limit the leader`s ability to enforce his will through legal coercion. Legal systems become unjust and unstable in the absence of such restrictions. They project the power of the political leader, but they are not valid legal systems. The history of the Western legal tradition is the history of revolutions against such systems.
(Berman, 1983). The validity of a legal system depends on only two conditions. First, individuals must generally abide by the primary rules of duty.
