Three Puzzles on the Foundations of Law

Abstract

In this essay, I analyse some of Dyzenhaus’s views on Hart’s theory of law, which he formulated in his book The Long Arc of Legality. In particular, I examine the question of the formal or substantive nature of the fundamental character of constitutions, the reconstruction of the rule of recognition as the ultimate rule of a legal order and its internal or external character in relation to such an order, and the possibility that Hartian legal positivism emerges from the “gunman writ large” explanation advocated by the imperative theory of law. A concluding coda is devoted to analysing the debate between inclusive and exclusive forms of positivism as Dyzenhaus sees it. In addressing these issues, I draw largely on Dyzenhaus’s insights, but often come to different and sometimes even opposite conclusions.