1. We will concern ourselves with the version of positivism that offers an answer to the questions what is law, how do we identify it, and what is its structure. In my view, this version turns on Hartian legal theory because current positivism adopts a Hartian approach to law: it seeks to articulate the main aspects of Hart’s perspective in a more sophisticated way.
2. See Raz (1979, 37–51) for a detailed discussion of this thesis. For Joseph Raz, the social sources thesis implies, in the main, that what is considered to be part of law is a matter of social facts, of human activity and, therefore, of the practices and conventions in the community. Thus, the identification of law can be done on the basis of the social sources regardless of the interpreter’s morality. The existence of these sources is the basis for truth of a proposition about what is, legally, the thing to do. In a similar sense, see Hart’s conception of the rule of recognition as a social practice in which certain criteria for legal validity permitting the identification of law are accepted. See Hart (1994, 100–117). See also Pâramo (1984, 379
3. Note that semantic theories for which the meaning of propositions relies on their truth conditions have traditionally been related to semantic realism, while constructivist or antirealist theories reject a semantic theory based on truth conditions, and favour one based on conditions of assertability. Nevertheless, Baker argues that certain articulations of constructivism accept the semantics of truth conditions but adopt a concept of truth as assertability. See Baker (1977, 50–51) and Dummet (1978, xxi, xxiii). Perhaps this new formulation of antirealism appears in response to scepticism, the theory of radical indeterminacy that rejects the very possibility of talking about truth conditions. Hence, this does not seem to be a merely terminological discussion about whether it is preferable to talk about ‘truth’ or ’assertability’ to refer to what we are entitled to assert. It would be interesting to analyse whether the different formulations of antirealism diverge in some significant way. Unfortunately, such an enquiry is beyond the scope of this work.
4. Shiner (1992b, 87–90).
5. Shiner (1992b, 89–90) points out that, according to sophisticated positivism, one of the rules governing the judicial role takes correspondence to the institutional history to be what actually warrants the assertability of a proposition in easy cases. This idea is rather odd for it seems to imply that only