LEGITIMACY IN LEGAL POSITIVISM: CONCEPTUAL LIMITS

Abstract

Introduction. Legal positivism, as the dominant tradition of twentieth-century jurisprudential thought, is grounded in the separation thesis, the claim that law and morality are conceptually distinct. At first glance, this position would appear to preclude any meaningful discussion of legitimacy in a strictly legal sense. A careful analysis of the leading positivist theories, however, suggests otherwise: positivism does not reject legitimacy but rather reduces it to a minimal normative standard that is conceptually necessary yet normatively insufficient. Purpose. This article examines how the principal representatives of legal positivism (H. Kelsen, H. L. A. Hart, and J. Raz) conceptualise, or implicitly presuppose, the notion of legitimacy within their respective theories, and analyses whether soft positivism, as an internal critique of the positivist tradition, succeeds in resolving the identified limitations. Materials and Methods. The study employs the conceptual-analytical method, the method of critical doctrinal analysis, and the comparative method. The primary sources are the works of H. Kelsen, H. L. A. Hart, and J. Raz, alongside the scholarship of W. J. Waluchow, M. Kramer, R. Dworkin, J. Coleman, S. Shapiro, and A. Marmor. Results. It is established that Kelsen reduces legitimacy to formal validity through the construction of the Grundnorm; Hart reduces it to a social fact of recognition through the rule of recognition; and Raz, by way of his «service conception» of authority, links legitimacy to the practical value of law for its addressees. Soft positivism mitigates the sharp separation between law and morality yet fails to provide a fully developed normative-axiological dimension of legitimacy. The necessity of a three-aspect model of legitimacy is substantiated. Prospects. The identified limitations open space for the development of a three-aspect model of legitimacy integrating the formal, normative-axiological, and sociological dimensions. Further research is envisaged in the juxtaposition of this model with discursive theories (Habermas) and natural law conceptions (Dworkin, Finnis), as well as in its application to the analysis of legal phenomena under conditions of armed conflict.