Rationality, Practical Reasonableness, and the Social and Moral Foundation of a Legal System.

This paper argues that the basic notions and assumptions underlying H. L. A. Hart's theory of legal positivism imply a different plausible conclusion from the one he arrives at, which is that law and morality are logically separate. It will be argued that these notions and assumptions imply otherwise: that law and morality--via the concept of practical reasonableness--are logically connected. In other words, Hart's construal of the acceptance of the rule of recognition from an internal point of view implies the notion of rationality, which would not necessarily sustain a legal system. It will be argued that such acceptance from an internal point of view implies the notion of reasonableness or a disinterested attitude, and that only such an attitude can lead to the existence and sustenance of a legal system. Thus, as a necessary condition, most of the people in the legal system have to fundamentally adopt the attitude of practical reasonableness. Otherwise, it wily be difficult if not impossible for a paradigm case of a legal system--which legal theories try to capture--to exist, and for its laws to be generally obeyed, without the extreme use and sole reliance on coercion, threat and force.