In less abstract terms, both the effectiveness of laws as solutions to problems of coordination and promoters of the common good, and the fairness of the requirement of their respect, depend on whether they are treated as legally and morally justified by the subjects and administrators of the legal system, just as a law made valid to prevail against all other grounds. except competing moral obligations of greater force. This claim is denied by the grave injustice of a law or legal system: see 3 and 4 below. 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. In fact, legislators in jurisdictions like the U.S. never have what Dworkin calls significant discretion. Even legislative decisions by Congress, the nation`s highest legislative authority, are still constrained by constitutional norms. For example, under the Fourteenth Amendment, Congress cannot pass a law setting a speed limit for male drivers on highways and another for female drivers. Austin`s view is difficult to reconcile with U.S. constitutional law. The courts regard the procedural and substantive provisions of the Constitution as limitations on legal validity. The Supreme Court, for example, has held that « an unconstitutional act is not law; it confers no rights; it does not impose tariffs; It is, from a legal point of view, as ineffective as if it had never been adopted.
(Norton v. Shelby County, 118 U.S. 425 (1886)). Moreover, these constraints claim to be legal restrictions: the primacy clause of Article VI of the Constitution states that « [t]he Constitution […] is the supreme law of the land; and the judges of each State are bound to it. Dworkin argues that when deciding difficult cases, judges often invoke legal principles that do not derive their authority from a formal act of promulgation (Dworkin 1977, 40). These principles, Dworkin believes, must be called law because judges are obligated to consider them when they are relevant. But if unpromulgated legal principles constitute law, then it is false, contrary to genealogical theory, that a legislative proposal is valid only because it has been officially promulgated. The part of our positive law which consists of legal principles or rules which accomplish such purposes as those just enumerated has often been called ius [or jus] gentium by theories of natural law.
Coined by jurists of classical Roman law such as Gaius (circa 165 AD), this name – literally « the law of nations » – refers to the set of rules and principles found in a similar, if not identical, form in virtually all legal systems. The reason for their ubiquity, in general, is that any reasonable consideration of what is necessary for individuals, families, and other associations to live reasonably well together in political society will identify these principles and rules as necessary. In modern law, they are in principle distinguished by names such as « the general principles of law recognized by civilized nations » (Statute of the International Court of Justice, art. 38), ius cogens erga omnes (literally « mandatory law [obligatory without agreement, decree or other forms of acceptance] versus [for/on, « against »] »). « higher right » or « fundamental human rights ». In the legal theory of Thomas Aquinas, they are called conclusions (implications) of the highest and most general moral principles. In the common law tradition, legal injustices pointed out by such principles were called mala in se, as opposed to mala prohibita – things that are bad in themselves, things that are bad only because they are prohibited by (positive) law – and this distinction remains common in legal reasoning for good reasons. Furthermore, Dworkin asserts that the legal authority of norms such as the Riggs Principle cannot be inferred from promulgation in accordance with purely formal requirements: « Although the principles are supported by the official actions of legal institutions, they have no simple or direct connection with those acts to formulate that link in terms of criteria, which are established by an ultimate rule of primary recognition » (Dworkin 1977, p. 41). Unlike legal regulations, legal principles do not have a canonical form and therefore cannot be explained by formal promulgation. Jules Coleman replies that if the rule of recognition is a social rule, Hart`s view implies that there must be general agreement among the officials of a legal system on the norms that constitute the rule of recognition, but this does not mean that there cannot be disagreement on what these norms require in a particular case: Under the U.S. recognition rule, for example, a federal law is only valid if it has been enacted in accordance with the rules of procedure described in the body of the Constitution and complies 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.