The realists were deeply skeptical of the ascendant notion that judicial legislation is a rarity. While not entirely rejecting the concept judges can be constrained by rules, the realists maintained that judges create new law through the train of lawmaking discretion significantly more typically than is usually supposed. On their view, judicial decision is guided much more regularly by political and ethical intuitions concerning the information of the case (as a substitute of by legal guidelines) than theories like positivism and naturalism acknowledge. Legal moralism is the view that the regulation can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others. According to this view, an individual’s freedom can legitimately be restricted simply because it conflicts with society’s collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to implement society’s collective morality.

Ronald Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be defined in terms of social facts. In deciding exhausting circumstances, for instance, judges often invoke moral rules that Dworkin believes do not derive their authorized authority from the social standards of legality contained in a rule of recognition (Dworkin 1977, p. 40). Nevertheless, since judges are certain to contemplate such principles when related, they should be characterized as legislation. Thus, Dworkin concludes, “if we treat rules as regulation we …