1 Marc Maesschalck 1 The Late Fichte and the Contemporary Legal Theory The objective of this paper is to continue the dialogue between Fichte’s notion of law and the contemporary theory of law which I have begun. 2 The current debates in theory of law have inherited from the twentieth century a fundamental epistemological break between positivism and hermeneutics as represented by the two great figures namely Hart and Dworkin. 3 On the historical level, the objective of legal positivism was to construct an independent theory of law based on the concept of the use of rules capable of reducing the uncertainty of habits and predictions, which are uncertain but also are susceptible of determining forms of social uses of rules. The realists’ opposition to this undertaking consisted in criticizing it for ignoring the indeterminism which inevitably intervenes in all social use of rules, whether juridical or otherwise. From Kelsen to Hart, legal positivism has consequently reinforced its narrow conception of the sources of law (in order to guarantee its independence from the general or basic moral standards of its own social group of reference) and has also tried to better determine the significance of the rule of law. On its side, legal hermeneutics has inherited from the tradition of the realists’ opposition to positivism and has succeeded in establishing an enlarged version of the sources of law, which attempts to better highlight the dependence of the formal systems with regard to their presupposed semantics. For hermeneutics, there is no well-established boundary between a descriptive theory of law and a normative one. 4 All theories of law ought to be understood as a constructivist interpretation which attempts to strike a balance between juridical practices (applications of rules) and their social justifications. 5 It always implies therefore a certain reference to an external statement at least under the form of a certain reference to standards of morality of the community to which it belongs, that is to say a reference to a definite state of ideals of social regulation of the group concerned. To be concise, legal positivism defended a restrictive conception of the sources of law, while hermeneutics proposed a restrictive conception of the rule of law. The result is that there is a break between two figures of the social authority of legal reason. For Dworkin, the individual morality of the judge becomes the guarantee of a system whose principle resides in the integrity of its reference 1 Marc Maesschalck’s researches are part of a Belgian federal research programme "Interuniversity Attraction Poles Programme - Belgian State – Belgian Science Policy.", financed by the Belgian Science Policy (http://iap6.cpdr.ucl.ac.be/). 2 Lenoble/Maesschalck, 2003, 362 p. 3 In particular, the two famous works: Hart, 1961 and Dworkin, 1977. 4 Cf. TRS, p. 60. 5 Cf. Dworkin, 1986, p. 90.