Mathias Hong
@hongmathias.bsky.social
Human Rights & Constitutional Law • Prof. of Public Law (Kehl) (private account; reposts ≤ endorsement) • 2005-2008: law clerk @BVerfG (Federal Constitutional Court of Germany) • https://verfassungsblog.de/author/mathias-hong/ • (Foto (c) U. Völkner)
(Brazil: Many "Brazilian legal scholars" discussing positivism "have predominantly approached the
non-positivist theories of Dworkin and Alexy, who have a broad influence in the national
academia". "Consequently, there seems to be little room for inclusive legal positivism ...". (14)) 15/15
non-positivist theories of Dworkin and Alexy, who have a broad influence in the national
academia". "Consequently, there seems to be little room for inclusive legal positivism ...". (14)) 15/15
November 25, 2025 at 3:10 PM
(Brazil: Many "Brazilian legal scholars" discussing positivism "have predominantly approached the
non-positivist theories of Dworkin and Alexy, who have a broad influence in the national
academia". "Consequently, there seems to be little room for inclusive legal positivism ...". (14)) 15/15
non-positivist theories of Dworkin and Alexy, who have a broad influence in the national
academia". "Consequently, there seems to be little room for inclusive legal positivism ...". (14)) 15/15
"Moreover, critics question the rigidity of Raz's concept of authority, arguing that" it "does not need to be exclusive to be effective". "Coleman (2009), for example,
argues that the moral deliberation required by an inclusive norm is not necessarily the same as the first-order reasons..." (10) 14/
argues that the moral deliberation required by an inclusive norm is not necessarily the same as the first-order reasons..." (10) 14/
November 25, 2025 at 3:10 PM
"Moreover, critics question the rigidity of Raz's concept of authority, arguing that" it "does not need to be exclusive to be effective". "Coleman (2009), for example,
argues that the moral deliberation required by an inclusive norm is not necessarily the same as the first-order reasons..." (10) 14/
argues that the moral deliberation required by an inclusive norm is not necessarily the same as the first-order reasons..." (10) 14/
"The main criticism": the "exclusive legal positivism explanation—namely, that judges are actually creating law
when applying moral clauses—contradicts the rhetoric and self-understanding of the judges themselves, who see themselves as applying the existing law (Himma, 2005)" (10). 13/
when applying moral clauses—contradicts the rhetoric and self-understanding of the judges themselves, who see themselves as applying the existing law (Himma, 2005)" (10). 13/
November 25, 2025 at 3:10 PM
"The main criticism": the "exclusive legal positivism explanation—namely, that judges are actually creating law
when applying moral clauses—contradicts the rhetoric and self-understanding of the judges themselves, who see themselves as applying the existing law (Himma, 2005)" (10). 13/
when applying moral clauses—contradicts the rhetoric and self-understanding of the judges themselves, who see themselves as applying the existing law (Himma, 2005)" (10). 13/
The law "does not incorporate morality as a criterion for validity", but "simply delegates power ... to decide the case using external standards", "in a way analogous to what happens in conflicts of laws typical of private international law with the “renvoi technique”". (9) 12/
November 25, 2025 at 3:10 PM
The law "does not incorporate morality as a criterion for validity", but "simply delegates power ... to decide the case using external standards", "in a way analogous to what happens in conflicts of laws typical of private international law with the “renvoi technique”". (9) 12/
"In this sense, the central thesis of exclusive legal positivism would be a strong version of the “separation thesis,” according to which there is a conceptual impossibility of incorporating moral standards into the law itself ..." (9) 11/
November 25, 2025 at 3:10 PM
"In this sense, the central thesis of exclusive legal positivism would be a strong version of the “separation thesis,” according to which there is a conceptual impossibility of incorporating moral standards into the law itself ..." (9) 11/
Exclusive legal positivism's "central thesis is that the validity of a legal norm can always be determined exclusively by reference to the social sources of law (sources thesis) without the need to resort to moral arguments" (8). 10/
November 25, 2025 at 3:10 PM
Exclusive legal positivism's "central thesis is that the validity of a legal norm can always be determined exclusively by reference to the social sources of law (sources thesis) without the need to resort to moral arguments" (8). 10/
"Himma (2005) also formulated a significant critique, focusing on the issue of final
authority ...". "Even if the" Supreme Court "makes an objective moral mistake in its interpretation, its decision is legally binding" (8). 9/
authority ...". "Even if the" Supreme Court "makes an objective moral mistake in its interpretation, its decision is legally binding" (8). 9/
November 25, 2025 at 3:10 PM
"Himma (2005) also formulated a significant critique, focusing on the issue of final
authority ...". "Even if the" Supreme Court "makes an objective moral mistake in its interpretation, its decision is legally binding" (8). 9/
authority ...". "Even if the" Supreme Court "makes an objective moral mistake in its interpretation, its decision is legally binding" (8). 9/
"Scott Shapiro (2009) offered a similar criticism by understanding legal activity as a form
of social planning. According to him, the purpose of a plan is to settle issues in advance
to avoid the need for subsequent discussions." (8). 8/
of social planning. According to him, the purpose of a plan is to settle issues in advance
to avoid the need for subsequent discussions." (8). 8/
November 25, 2025 at 3:10 PM
"Scott Shapiro (2009) offered a similar criticism by understanding legal activity as a form
of social planning. According to him, the purpose of a plan is to settle issues in advance
to avoid the need for subsequent discussions." (8). 8/
of social planning. According to him, the purpose of a plan is to settle issues in advance
to avoid the need for subsequent discussions." (8). 8/
Critique by exclusive legal positivists: For Raz (2009), e.g., "law intends to have authority, which is why its directives must function as “exclusionary reasons” for action, replacing individuals' deliberation over the (moral) underlying reasons" (7-8). 7/
November 25, 2025 at 3:10 PM
Critique by exclusive legal positivists: For Raz (2009), e.g., "law intends to have authority, which is why its directives must function as “exclusionary reasons” for action, replacing individuals' deliberation over the (moral) underlying reasons" (7-8). 7/
Inclusive legal positivism "was, to a large extent, a direct response to Dworkin's attacks on Hart's theory": "it would be sufficient for the rule of recognition ... to include a clause referring to moral principles for them to become part of the law" (5-6). 6/
November 25, 2025 at 3:10 PM
Inclusive legal positivism "was, to a large extent, a direct response to Dworkin's attacks on Hart's theory": "it would be sufficient for the rule of recognition ... to include a clause referring to moral principles for them to become part of the law" (5-6). 6/
For Shapiro (2007) "Dworkin’s fundamental strategy throughout the debate was to argue that legality is
not determined only by social facts, but in the final analysis, is also determined by moral facts" (5). 5/
not determined only by social facts, but in the final analysis, is also determined by moral facts" (5). 5/
November 25, 2025 at 3:10 PM
For Shapiro (2007) "Dworkin’s fundamental strategy throughout the debate was to argue that legality is
not determined only by social facts, but in the final analysis, is also determined by moral facts" (5). 5/
not determined only by social facts, but in the final analysis, is also determined by moral facts" (5). 5/
Dworkin (2004) "argued that Hart failed to fully comprehend the interpretative nature of law, as he continued to treat the legal phenomenon from an “Archimedean” perspective" (4). 4/
November 25, 2025 at 3:10 PM
Dworkin (2004) "argued that Hart failed to fully comprehend the interpretative nature of law, as he continued to treat the legal phenomenon from an “Archimedean” perspective" (4). 4/
"Hart (1994) seeks to deflect Dworkin's criticisms by
arguing that the two have distinct theoretical projects" (internal vs. external point of view) (4). 3/
arguing that the two have distinct theoretical projects" (internal vs. external point of view) (4). 3/
November 25, 2025 at 3:10 PM
"Hart (1994) seeks to deflect Dworkin's criticisms by
arguing that the two have distinct theoretical projects" (internal vs. external point of view) (4). 3/
arguing that the two have distinct theoretical projects" (internal vs. external point of view) (4). 3/
Dworkin (1977) sought "to deny all three of Hart's ideas" ("pedigree, obligation, and discretion theses"), "since principles would not need to pass the pedigree test", there could be "a binding obligation" without rules (based on principles), "which would counter the idea of discretion" (2-4). 2/
November 25, 2025 at 3:10 PM
Dworkin (1977) sought "to deny all three of Hart's ideas" ("pedigree, obligation, and discretion theses"), "since principles would not need to pass the pedigree test", there could be "a binding obligation" without rules (based on principles), "which would counter the idea of discretion" (2-4). 2/