The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and (...) “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”. (shrink)

The author outlines a conceptually oriented rational reconstruction of crisis tendencies in modern law. The connection between problems of legitimacy and the notion of rationality is emphasized and topics involving both the theory of communicative rationality and the theory of practical reasoning (especially in law) are discussed. The author concludes that a theory transcending the traditional approaches is needed. Otherwise, we shall not be able to face the questions of jurisprudence in the future, especially as regards an assessment of the (...) relations between law and morality, between law and society and finally between law, legitimacy and democracy. (shrink)