I’m not against the whole legal positivism thing (I’m a pretty big Joseph Raz fan), but it’s not as if that’s the last word on things.

Because it starts to break down as a means of structuring shared community activities guided by norms (i.e. “laws) if you start with the premise that there’s no underlying guidelines to circumscribe the sheer brute power of legal authority in any legal regime.

For example, if we start sticking with “there are no rights except those enshrined in law,” then Judges in common-law countries have absolutely no ability to do there jobs, other than assuming (like Raz does) that whenever there isn’t a statute or directly applicable precedent, the judges are just empowered to and are legislating without restriction.

But, in reality that’s not what happens. We can look at how judging happens in common-Law countries and they are never claiming to be legislating, they are never said to have been given power to legislate, and people don’t commonly understand judges as engaging in unconstrained legislation.

Because Judges, in cases with no statue and no applicable precedent, are trying to find the right Fit and Justification for their legal rulings that ultimately create new laws. They utilize underlying, uncodified principles and processes which are just generally accepted “to be” (when people think about them at all) by judges and the general population.

If judges didn’t try to fit or justify their decisions when gap-filling the laws, nearly everyone would consider this not just “wrong” but “illegal” even though there is no enshrined law, in statute or binding case law precedent, making this “illegal.”

That underlying sense of “illegal” by the overwhelming majority of any given community where something occurs that isn’t against any actually enshrined law...that, so the argument goes, is the substructure of “rights” that seem to exist as a general intangible part of the human condition.