So how do legal positivists conceptualize ideas like "you ought to follow the law" which is necessarily a moral claim. The ontological argument is clearly made: the law is established and enforced by some kind of system of powers - sovereign, judicial, presidential, democratic or otherwise - and therefore does not find its necessary condition in a moral justification. A law is a law because someone has the power to establish, declare and enforce it, not because there is any moral value in its obedience. But this necessarily implies that the more evil the law, the more virtuous resistance or rebellion. For example, Ghandi's methods of non-violent civil disobedience rely on breaking the law and going to jail in part to reveal the unjust nature of some given law, where law necessarily relies on its power to impose itself. This implies that a law which every person would rebel against by some means, whether non-violent or otherwise, could not be imposed because by the end, the state would cannibalize itself. This has its mirror in let's say, a perfectly virtuous person who has no power to enforce a law, especially in a nation of criminals who would never obey the virtuous law. This person cannot enforce or empower the law, so their statutes are not laws according to positivists even if they'd be worth following. But the converse kind of shows the weakness of the sense that a powerful authority is the sole basis for a law either. Rather, that the willingness of people to obey the law is slightly more prior. The capacity to arrest criminals and impose punishment seems to be the method by which the authority justifies itself, but again, if everyone or at least the vast majority of people would not obey those laws, even given maximal effective enforcement, the legal system would collapse due to having no one left whose labour could support the tax requirement of the system. In this sense, a tension between the willingness of the people to avoid punishment and the ability of the state to punish kind of challenges the positivist assumption. It shows that at a certain point, if the law were too unjust, if the people were very able to suffer punishment because they felt a duty to, that would essentially undermine the authority of the state, and undermine the legality of their laws. Are you aware of any jurisprudence examinations of such tensions? It's a separate issue from the enforcability of the law because we're assuming it can be enforced, and it's a separate issue from the moral basis of the law persay, except insofar as it finds a root in the moral willingness of the people to accept or reject laws. That the limits of the authority to establish a law might find its basis in the peoples' willingness to suffer enforcement until the law itself could no longer be sustained, undermining the laws ability to exist. It sort of also implies that a state necessarily wants a morally inept people, because the less virtuous the people, the more immoral the laws they can impose. The more virtuous the people, the more pain they're willing to suffer to resist the law, the less power the state has to impose immoral legislation. Because that virtuous people will undermine immoral or unjust laws.
![Modern Positivism: Hart, Exclusive Positivism and Inclusive Positivism [No. 86 LECTURE]](http://i.ytimg.com/vi/PTlFe7MrK6E/mqdefault.jpg)
Well explained
So how do legal positivists conceptualize ideas like "you ought to follow the law" which is necessarily a moral claim. The ontological argument is clearly made: the law is established and enforced by some kind of system of powers - sovereign, judicial, presidential, democratic or otherwise - and therefore does not find its necessary condition in a moral justification. A law is a law because someone has the power to establish, declare and enforce it, not because there is any moral value in its obedience.
But this necessarily implies that the more evil the law, the more virtuous resistance or rebellion. For example, Ghandi's methods of non-violent civil disobedience rely on breaking the law and going to jail in part to reveal the unjust nature of some given law, where law necessarily relies on its power to impose itself. This implies that a law which every person would rebel against by some means, whether non-violent or otherwise, could not be imposed because by the end, the state would cannibalize itself.
This has its mirror in let's say, a perfectly virtuous person who has no power to enforce a law, especially in a nation of criminals who would never obey the virtuous law. This person cannot enforce or empower the law, so their statutes are not laws according to positivists even if they'd be worth following.
But the converse kind of shows the weakness of the sense that a powerful authority is the sole basis for a law either. Rather, that the willingness of people to obey the law is slightly more prior. The capacity to arrest criminals and impose punishment seems to be the method by which the authority justifies itself, but again, if everyone or at least the vast majority of people would not obey those laws, even given maximal effective enforcement, the legal system would collapse due to having no one left whose labour could support the tax requirement of the system.
In this sense, a tension between the willingness of the people to avoid punishment and the ability of the state to punish kind of challenges the positivist assumption. It shows that at a certain point, if the law were too unjust, if the people were very able to suffer punishment because they felt a duty to, that would essentially undermine the authority of the state, and undermine the legality of their laws.
Are you aware of any jurisprudence examinations of such tensions? It's a separate issue from the enforcability of the law because we're assuming it can be enforced, and it's a separate issue from the moral basis of the law persay, except insofar as it finds a root in the moral willingness of the people to accept or reject laws. That the limits of the authority to establish a law might find its basis in the peoples' willingness to suffer enforcement until the law itself could no longer be sustained, undermining the laws ability to exist.
It sort of also implies that a state necessarily wants a morally inept people, because the less virtuous the people, the more immoral the laws they can impose. The more virtuous the people, the more pain they're willing to suffer to resist the law, the less power the state has to impose immoral legislation. Because that virtuous people will undermine immoral or unjust laws.