The Possibility Puzzle and Legal Positivism

The aim of this essay is to discuss a paradox concerning the law, which Shapiro analyses in his book Legality. According to Shapiro, it is puzzling how the law could have been invented: attempts to explain the origins of law face a paradox, which Shapiro labels Possibility Puzzle (PP). Briefly, the problem is that in order to get legal power, one must already have legal power. According to Shapiro, the legal positivist solutions to the PP are not homogeneous. Shapiro examines two of these solutions, Austin’s solution and Hart’s one, and he argues that they are both unsatisfactory. In fact, Shapiro stresses that whatever solution to the PP must be compatible with a theory dealing with problematic issues such as the methodology of legal theory, the logical status of normative statements, the judicial duty to apply the law, and the relation between moral and legal duties. But, according to Shapiro, neither Hart’s solution nor Austin’s one solve satisfactorily these underlying problems. In this essay I will sustain, firstly, that once we adopt a legal positivist point of view, the PP vanishes or, better, it turns into a not paradoxical question; secondly, that all the legal positivists (including Hart and Austin) give the same answer to that question, and this because that answer stems from (is implicit in) the very concept of legal positivism; finally, that the underlying problems (previously mentioned) had already been solved by a legal positivist theory. With regard to the last point, I will try to vindicate Hart’s theory against Shapiro’s criticisms, although I will acknowledge that some corrections must be made.