Evaluation of the requirement of law's conformity to morality from the perspective of legal positivism in line with the theory of normative hierarchy

Abstract

The hierarchy of norms is determined according to the contents of the norms and their potential normative power based on the requirement of conformance between the norms. Thus, a hierarchical relationship exists when a norm must conform to the other. Moreover, the concepts of "source of law" and "legal norm" are not synonyms. The "theory of individuation of norms" helps in determining the normative hierarchy in cases where a norm is formed from several sources. The first part of the article determines the essential qualities of the normative hierarchy. The second part discusses whether it is possible to view morality as the hierarchical superior of legal systems and whether this would be contrary to legal positivism. The minimum condition of legal positivism is the separability thesis. This thesis can be expressed as a combination of two claims: "law's validity and content are independent of its moral value" and "addressees do not have to have moral reason to conform to law". This thesis is compatible with the claim that law should be morally good. As long as the moral value does not affect the existence of the law, the minimum thesis of legal positivism stands. However, since the existence of a hierarchical relationship between the norms does not require the invalidity of the inferior norm's contrariness, could morality be viewed as the law's superior even if in conformity with legal positivism? The article ends by explaining why the question must be answered negatively.