The Possibility Puzzle: Legal Positivism and the Ground of Law

Abstract

The aim of this essay is to discuss a puzzle concerning the law, which Shapiro analyses in his book. Briefly, the problem is that in order to get legal power, one must already have legal power. In this essay I will sustain, firstly, that once we adopt a legal positivist point of view, the puzzle vanishes or, better, it turns into a not puzzling question; secondly, that all the legal positivists (including Hart and Austin) give the same answer to that question, and this because that answer stems from (is implicit in) the very concept of legal positivism; finally, that the underlying problems (previously mentioned) had already been solved by a legal positivist theory. With regard to the last point, I will try to vindicate Hart’s theory against Shapiro’s criticisms, although I will acknowledge that some corrections must be made.