the content of the rule does not play any role here. In this way, Hart emphasized
the legal positivist view that there are no moral requirements for the validity of
legal rules.
In his early work, Dworkin also answered the conceptual question. But he
pointed out that judges do use substantive arguments in taking their decisions.
Moreover, they do so to determine the content of the law and not merely when
they have run out of rules and are in the need to create new law. Apparently, the
content of the rules does play a role in determining what the law is. So Dworkin
arrived at a nonpositivist view of law on the basis of the conceptual question
after law’s nature.
Both Thomas Aquinas and Thomas Hobbes answered the normative question
after law’s nature. They both assumed that natural law determines what is good
for mankind. However, Hobbes did not see much that humans have in common,
and the role of natural law was therefore confined to prescribing that there should
be a state. The “real” law would then be the rules that are created and enforced
by the state. So Hobbes arrived at a legal positivist conclusion on the basis of the
normative question after law’s nature.
Thomas Aquinas assumed that human nature could constitute the foundation
for substantive natural law. There is a need for positive law, but positive law
should always function within the framework of natural law. So Aquinas arrived
at a nonpositivist view of law on the basis of the normative question after law’s
nature.Recommended Literature
Bix B (2012) Jurisprudence. Theory and context, 6th edn. Sweet & Maxwell, London
Dworkin R (1996) Taking rights seriously. Duckworth, London
Finnis J (2011) Natural law and natural rights, 2nd edn. Oxford University Press, Oxford
Hart HLA (2012) The concept of law, 3rd edn. Oxford University Press, Oxford
Kaufmann A, Hassemer W, Neumann, U (hrsg) (2011) Einfu ̈hrung in Rechtsphilosophie und
Rechtstheorie der Gegenwart, 8 Auflage. Mu ̈ller, Heidelberg
Kelsen H (1960) Reine Rechtslehre, 2e Auflage. Franz Deuticke, Wien
Radbruch G (1975) Rechtsphilosophie, 4e Auflage. K.F. Koehler Verlag, Stuttgart
14 Philosophy of Law 335