The reconciliation of the reason-based theories of normativity with legal positivism

It is alleged that legal positivism falls short of explaining legal normativity and this is thought to be one of the fundamental deficiencies of the positivist theory. This study explores whether it is possible to remedy this shortcoming with the help of rationality-based theories of normativity. Joseph Raz explains legal normativity with reference to reasons for action recognized by the Reason. Although one can explain legal normativity based on Raz's authority-based understanding of normativity, this conception does not answer all questions pertaining to legal normativity. Therefore, one should concede that legal normativity can be explained by Raz's understanding of authority, but should not assume that this is all there is to legal normativity. Systemic validity, which is the understanding generally adopted by positivist theories, falls short of illuminating the normative dimension of law. Consequently, systemic validity needs to be supplemented with a minimum axiological element. This element is the condition of minimum binding force. Accordingly, in order to be able to speak of an existing norm, the addressees must have at least some reason to conform to the norm. This understanding of validity can be termed as the axio-systemic validity. The axio-systemic validity aspires to explain the conditions for the validity of the norms in a legal system. On the other hand, it cannot explain the validity of the hierarchically supreme norm of a legal system. The understanding of axio-factual validity can be adopted for the validity of the supreme norm. What needs to be questioned is whether these two understandings suggested by the reconciliation project are compatible with the basic tenets of legal positivism. Legal positivism can be said to have two basic tenets as the separability thesis and the social fact thesis. The defended understandings are compatible with the separability thesis but not with the social fact thesis. Therefore, the proposed reconciliation, though it definitely does not have the character of a natural law theory, can only lead to a wide positivist understanding which could be defined solely on the separability thesis.