Inclusive Legal Positivism
Abstract and Keywords
This article describes some of the most influential criticisms of inclusive positivism. It discusses in detail three commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The modified version of the Social Fact Thesis explains the validity of first-order norms. the Weak Conventionality Thesis gives a more detailed account of the social fact that explains the authority of the validity criteria. The Strong Conventionality Thesis asserts that officials are obligated to apply the requirements of the rule of recognition in discharging their official functions. The Separability Thesis, foundation of positivism, asserts that law and morality are conceptually distinct. This article presents the historical overview of Incorporation Thesis. Critics of inclusive positivism have developed a number of arguments claiming to show that inclusive legal positivism is conceptually incoherent. Finally, it discusses two components to the Incorporation Thesis, the Necessity Component and the Sufficiency Component.
The conceptual foundation of legal positivism consists in three commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts that the existence of law is made possible by certain kinds of social fact. The Conventionality Thesis claims that the criteria of validity are conventional in character. The Separability Thesis, at the most general level, denies that there is necessary overlap between law and morality.
While the Separability Thesis thus implies that there are no necessary moral criteria of legal validity, it leaves open the question of whether there are possible moral criteria of validity. Inclusive legal positivists (also known as soft positivists and incorporationists) believe there can be such criteria; that is, they believe there are conceptually possible legal systems in which the criteria for legal validity include (or incorporate) moral principles. Prominent inclusive positivists include H. L. A. Hart, Jules Coleman, W. J. Waluchow, and Matthew Kramer. Exclusive legal positivists (also known as hard positivists) deny there can be moral criteria of validity. Exclusive positivists, like Joseph Raz, Scott Shapiro, and Andrei Marmor, claim the existence and content of law can always be determined by reference to social sources.
(p. 126) 1 Conceptual Foundations of Positivism
1.1 The Social Fact Thesis
The most fundamental of positivism's core commitments is the Social Fact Thesis, which asserts that law is, in essence, a social creation or artefact. What distinguishes legal norms from non-legal norms, according to this thesis, is that the former instantiate a property that makes reference to some social fact. The occurrence of the relevant social fact, then, is what ultimately explains the existence of a legal system and constitutes it as an artefact.
While all positivists are committed to the Social Fact Thesis, they differ with respect to which social fact is essential to the explanation of legal validity. Following Jeremy Bentham, John Austin argues that the distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society but who is not in the habit of obeying anyone else. On Austin's view, a rule R is legally valid (i.e. is a law) in a society S if and only if (1) R is the command of the sovereign in S; and (2) R is backed up by the threat of a sanction. Thus, the social fact that explains the existence of any legal system, on Austin's view, is the presence of a sovereign willing and able to impose a sanction for non-compliance with its commands.
Hart rejects Austin's version of the Social Fact Thesis for a number of reasons1 but chief among them is that it overlooks the existence of meta-rules that have as their subject matter the first-order rules themselves:
[Meta-rules] may all be said to be on a different level from the [first-order] rules, for they are all about such rules; in the sense that while [first-order] rules are concerned with the actions that individuals must or must not do, these [meta-]rules are all concerned with the [first-order] rules themselves. They specify the way in which the [first-order] rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.2
(p. 127) Hart distinguishes three types of meta-rules that mark the transition from primitive forms of law to full-blown legal systems: (1) the rule of recognition, which ‘specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group’ (CL, 92); (2) the rule of change, which enables a society to create, remove, and modify valid norms; and (3) the rule of adjudication, which provides a mechanism for determining whether a valid norm has been violated. On Hart's view, then, every society with a full-blown legal system has a meta-rule of recognition that provides criteria for making, changing, and adjudicating legally valid norms.
What ultimately goes wrong with Austin's version of the Pedigree Thesis, then, is this. Because Austin takes first-order criminal law as paradigmatic of all legal content, he believes that the presence of a coercive sovereign is essential to explaining the existence of law. Since Austin thus explains all law as originating from the sovereign, he fails to notice that the claim that first-order legal content originates with the sovereign defines a legal meta-norm and hence overlooks the possibility of other meta-rules of recognition than the one that validates only coercive sovereign commands. While this may be one possible rule of recognition, Hart believes there are many other possibilities; it is up to each society to decide on the content of its validity criteria.
On Hart's view, then, it is the presence of a binding rule of recognition, and not the presence of a sovereign able to coerce compliance, that brings a legal system into existence. And, for Hart, there is a binding rule of recognition RoR in a society S when two conditions are satisfied: (1) the criteria of validity contained in RoR are accepted by officials in S as standards of official conduct; and (2) citizens in S generally comply with first-order rules validated by RoR. Thus, according to Hart's version of the Social Fact Thesis, the existence of a rule of recognition satisfying (1) and (2) is the social fact that gives rise to law.
Thus construed, the Social Fact Thesis explains the authority of the validity criteria in terms of some set of social facts and thereby conceptualizes law as an artefact.3 On Hart's version of the thesis, the relevant social fact is the acceptance of the officials; on Austin's version, the relevant social fact is the sovereign's ability to coerce compliance. But, in any event, since the validity criteria are authoritative in virtue of instantiating some social property, the legal system to which they give rise is a human creation. According to the Social Fact Thesis, then, it is a conceptual truth that law is a social artefact.
Although the Social Fact Thesis is most usefully construed as explaining the authority of the validity criteria, it can also be construed as explaining the authority of first-order legal norms. On this construction of Austin's version of the thesis, a first-order legal norm is valid because it is the command of a sovereign who backs it up (p. 128) with a sanction. It is the validity of first-order norms, rather than the authority of the meta-norm, that is being explained in terms of the relevant social fact; such norms are valid because they instantiate a complex social property involving the sovereign, her intentions, and her subjects.4
This second version of the Social Fact Thesis operates at the same level as the so-called Pedigree Thesis. According to the Pedigree Thesis, the rule of recognition provides criteria that validate only norms enacted in accordance with certain procedural requirements; on this view, a norm is legally valid in virtue of having the right kind of source or pedigree. Austin subscribes to the Pedigree Thesis; on his view, the appropriate source that gives rise to legal validity is the sovereign. Raz's Source Thesis also seems to be a version of the Pedigree Thesis. Since the Pedigree Thesis explains the validity of first-order norms in terms of social facts, it implies this version of the Social Fact Thesis.
Nevertheless, this version of the Social Fact Thesis does not imply the Pedigree Thesis. There could be a rule of recognition, for example, that validates those norms that have an appropriate pedigree together with norms (‘derived norms’) that stand in some logical (or moral) relationship to norms having an appropriate pedigree. At bottom, the validity of every legal norm can be explained in terms of some social fact; for the validity of the derived norms depends on their standing in the appropriate relation to norms that are valid in virtue of some social fact. On this account, if the legal status of the underlying pedigreed norm changes, so does the legal status of the derived norm. The validity of the derived norm thus depends, we might say, immediately on the relation of its content to the content of the pedigreed norm but ultimately on the instantiation by the pedigreed norm of the relevant social facts. Thus, while this version of the Social Fact Thesis operates on the same level as the Pedigree Thesis, the two theses are not identical.
All positivists accept the Social Fact Thesis as it pertains to the authority of the meta-rule; this is part of the shared foundation that distinguishes legal positivism from other conceptual theories of law. While many positivists accept the Social Fact Thesis as it pertains to the validity of first-order rules, not all do. In fact, the distinction between exclusive and inclusive positivism can be expressed in terms of this version of the Social Fact Thesis. Exclusive positivists accept, while inclusive positivists reject, the second version of the Social Fact Thesis. As we will see, some inclusive positivists believe there can be norms that are legally valid in virtue of their moral content—regardless of whether such norms bear a logical relationship to norms having an appropriate pedigree.
(p. 129) Even so, it is important to bear in mind that Hartian inclusive positivists must none the less accept that in every conceptually possible legal system there will be institutions that allow for the existence of first-order norms that are valid, at least partly, because of some social fact. There simply could not be a legal system in which the meta-rule of recognition is exhausted by content-based criteria of validity. On Hart's view, for example, the simple rule ‘all and only moral rules are legally valid’ could not be a rule of recognition because it does not provide any mechanism for changing and adjudicating law. Such a system of rules, on Hart's view, would be at best a rudimentary or primitive form of law; but it would not be a legal system because it lacks the appropriate institutional machinery for making, changing, and adjudicating law.5
Accordingly, Hart's theory of law correctly requires the presence of certain institutions by which law can be manufactured, modified, and adjudicated. This, as we shall see, should not be construed to preclude in Hart's theory a rule of recognition that can validate some norms solely in virtue of content. But this does imply that the rule of recognition must define certain institutional structures, like legislatures and courts, that make possible the existence of first-order norms that are valid, at least partly, in virtue of social pedigree. For this reason, there could not exist a legal system defined entirely by the meta-rule ‘all and only moral rules are legally valid’.
Hart, then, accepts a modified version of the Social Fact Thesis as it operates to explain the validity of first-order norms: in every conceptually possible legal system, there are institutions making possible the existence of legal norms that are valid, at least partly, because some social conditions are satisfied. And given the plausibility of this thesis, it must also be attributed to inclusive positivism generally.
1.2 The Conventionality Theses
1.2.1 The Weak Conventionality Thesis
The Weak Conventionality Thesis supplements Hart's version of the Social Fact Thesis with a deeper and more detailed account of the social fact that explains the authority of the validity criteria. What explains the authority of the validity criteria in any conceptually possible legal system, according to this thesis, is that such criteria constitute the terms of a social convention among the persons who function as officials. As Coleman describes the thesis, ‘law is made possible by an interdependent (p. 130) convergence of behavior and attitude … among individuals expressed in a social or conventional rule’.6
The existence of a social convention depends on a convergence of both behaviour and attitude.7 Many people, for example, converge on putting both socks on before putting on shoes, but it would be incorrect to characterize such behaviour as constituting a convention; for no one would be inclined to criticize someone who puts a sock and shoe on one foot before dressing the other foot. But if people were suddenly to view deviating behaviour with respect to the order of putting on shoes and socks as a ground for censure, that would be enough to constitute a certain way of putting on socks and shoes as a convention. A social convention, then, is constituted by a convergence of both behaviour and attitude: in addition to conforming behaviour, there must be a shared belief that non-compliance is a legitimate ground for criticism.
The existence of law, then, is made possible by a convergence of behaviour and attitude. As Hart puts the point, ‘those rules of behaviour which are valid according to the system's ultimate criteria of validity must be generally obeyed, and … its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’ (CL, 113). Thus, the Weak Conventionality Thesis explains the existence of law in terms of there being a conventional rule of recognition which validates norms that are minimally efficacious in regulating citizen behaviour.
While nearly all positivists, exclusive and inclusive alike, agree that the criteria of validity are authoritative in virtue of a social convention of some kind,8 they disagree on the character of the convention that confers authority on the criteria of validity. At one point, Coleman entertained the view that the criteria of validity are best characterized as a coordination convention:
The rule of recognition solves the coordination problem of settling on a particular set of criteria of validity. If it is a good idea to have law at all, then it is clearly better that some set of criteria be agreed upon than that there be no agreement, even if individuals differ from one another as to their ranking of the options. (ICP, 398)
Thus, once it is established that a system of law is desirable for some reason (which may or may not relate to the solution of a coordination problem), it will be necessary to agree on a set of criteria for determining what properties a norm must have to be law. Different individuals might, of course, prefer different criteria but each presumably has a stronger preference for the state of affairs in which the same criteria are recognized by all officials than for the state of affairs in which each official recognizes her own favoured criteria.
(p. 131) In response, Marmor rejects the idea that the conventional rule of recognition can be modelled as a solution to a coordination problem:
It seems rather awkward to claim that the rules constituting the game of chess are solutions to a recurrent coordination problem. Antecedent to the game of chess, there was simply no problem to solve. … ‘Let's have a competitive intellectual game’ or something like this is not a coordination problem. … If it were, then ‘Let's have a just Constitution’ would also be a coordination problem, and, of course, it is not.9
The problem, on Marmor's view, is that the existence of a coordination convention assumes that parties have a stronger preference for agreement on a solution than for any particular substantive solution. But, as he points out, people are not indifferent with respect to the content of the validity criteria: ‘It matters a great deal to all of us, who makes the law, and how it is to be enacted’ (LC, 517).
Instead, Marmor characterizes the rule of recognition as a constitutive convention. Constitutive conventions are distinguished from coordination conventions in that the former ‘constitute the point or value of the activity itself, and it is in this sense that we can talk about autonomous practices’ (LC, 521). Just as, according to Marmor, the conventional rules of chess create or constitute the autonomous game of chess, the conventional criteria of validity create or constitute the autonomous social practice of law.
For different reasons, Coleman rejects his earlier view that the rule of recognition is necessarily a coordination convention. According to Coleman, ‘It would place an arbitrary and baseless constraint on our concept of law to stipulate that the social practice among officials necessary for the existence of a Rule of Recognition must always be representable as a game of partial conflict’.10 The idea here is that while a rule of recognition is partly constituted by a convergence of attitude, the relevant attitude need not be supported by a preference set that makes possible a solution to a coordination problem.11 As Coleman points out, ‘the large majority [of our social or conventional practices] cannot be modeled as solutions to partial conflict games’ (POP, 94).
Coleman believes that an explanation of law's conventional character must be sought at a higher level of abstraction. Following Scott Shapiro, Coleman argues that the conventional meta-rule of recognition is most plausibly thought of as being a shared cooperative activity (SCA).12 Coleman identifies three characteristic features (p. 132) of an SCA: (1) each participant in an SCA attempts to conform her behaviour to the behaviour of the other participants; (2) each participant is committed to the joint activity; and (3) each participant is committed to supporting the efforts of the other participants to play their appropriate roles within the joint activity. An SCA, then, enables participants to coordinate their behaviour and also provides ‘“a background framework that structures relevant bargaining” between [participants] about how the joint activity is to proceed’ (POP, 97).
What is conceptually essential to the social practice constituting a conventional rule of recognition, then, is that it has the normative structure of an SCA. It is a conceptual truth about law that officials must coordinate their behaviour with one another in various ways that are responsive to the intentions and actions of the others; what a judge, for example, does in a particular case depends on what other judges have done in similar cases. Similarly, it is a conceptual truth that officials be committed to the joint activity and to supporting one another; officials responsible for promulgating laws require an assurance of continuing support from officials responsible for enforcing and executing those laws. In the absence of the normative features constitutive of an SCA, according to Coleman, legal practice is not conceptually possible.13
1.2.2 The Strong Conventionality Thesis
Following Hart, Coleman holds that it is a conceptual truth about law that the rule of recognition imposes a legal duty on officials to conform to its criteria of validity. Thus, Coleman and Hart subscribe to:
The Strong Conventionality Thesis: the conventional rule of recognition is a duty-imposing rule.
The Strong Conventionality Thesis asserts that officials are obligated to apply the requirements of the rule of recognition in discharging their official functions and that it is the rule of recognition that autonomously gives rise to this obligation. Of course, officials might also be morally obligated to apply the rule of recognition; but whether or not there is such an obligation is a contingent matter that depends on its content. In contrast, it is part of the very nature of law, according to the Strong Conventionality Thesis, that the rule of recognition autonomously obligates officials to conform to its criteria of validity.
Though Raz and Marmor accept that the criteria of validity are conventional and hence accept the Weak Conventionality Thesis, each rejects the Strong (p. 133) Conventionality Thesis. Raz, for example, rejects the Hartian view that the criteria of validity constitute part of the law:
It seems to me that to answer the question whether a certain suggested law exists as a law in a certain legal system one must ultimately refer not to a law but to a jurisprudential criterion. Ultimately one must refer to a general statement that does not describe a law but a general truth about law.14
Hart and Coleman, of course, deny the rule of recognition is valid (the idea that the criteria of validity could themselves be valid is incoherent) but hold it is part of the law. In contrast, Raz believes that the criteria of validity are neither valid nor part of the law. While the criteria of validity can be expressed in a propositional rule of recognition, they do not operate to regulate the behaviour of officials. Hence, on Raz's view, the rule of recognition is really no rule at all: it neither imposes duties nor guides (in the relevant sense) official behaviour.
Marmor is more adamant in rejecting the Strong Conventionality Thesis, believing that a social convention, by itself, can never give rise to an obligation:
From a moral or political point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system is purely a moral issue that can only be resolved by moral arguments. … And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. (LC, 530)15
On Marmor's view, a constitutive convention can give rise to an institution that has its own values and objectives but can never give rise to a self-supporting reason to participate in that institution: ‘[just as] the constitutive rules of soccer cannot settle for me the question whether I should play soccer or not[,] the rules of recognition cannot settle for the judge, or anyone else for that matter, whether one should play by the rules of law or not’ (LC, 530).
Ironically, Marmor's scepticism about the ability of a convention to autonomously give rise to an obligation may ultimately derive from Hart's own reasons for rejecting Austin's account of legal obligation. Hart famously rejected Austin's view on the ground that the institutional application of coercive force can no more give rise to an obligation than can the application of coercive force by a gunman. To paraphrase (p. 134) Hart, the command of a gunman can oblige compliance, but it can never obligate compliance.
Unfortunately, Hart failed to provide theoretical resources to insulate his view from his own criticism of Austin. As is readily evident, the situation is no different if the gunman takes the internal point of view towards his authority to make such a threat. Despite the gunman's belief that he is entitled to make the threat, the victim is obliged, but not obligated, to comply with the gunman's orders. The gunman's behaviour is no less coercive simply because he believes he is entitled to make the threat. Likewise, a system of law is no less coercive simply because the officials take the internal point of view towards the rule of recognition.
While the point of Coleman's analysis of the rule of recognition as an SCA is to make explicit the normative structure of the supporting social practice, it also goes a long way in the direction of rescuing Hart from his own criticism of Austin. Part of the problem for Hart is that his analysis of the internal point of view seems unable to explain how a rule of recognition could give rise to autonomous obligations.16 To take the internal point of view towards the rule can involve no more than regarding it as a standard for criticizing deviating behaviour; indeed, Hart believes that an official can accept the rule of recognition for any reason at all, including purely prudential reasons. But, by itself, one person's unilateral acceptance of a rule as a standard cannot obligate her to abide by the rule; for example, an official whose attitude towards the rule of recognition changes cannot thereby extinguish her obligations under the rule. For this reason, a mere convergence of independent acceptances among officials cannot obligate any of them to abide by the rule.17
It is here that the notion of an SCA might contribute to an explanation of how a social practice can give rise to obligations. The notion of an SCA involves more than just a convergence of unilateral acceptances of the rule of recognition. It involves a joint commitment on the part of the participants to the activity governed by the rule of recognition. As Coleman puts the point with respect to judges, ‘[t]he best explanation of judges' responsiveness to one another is their commitment to the goal of making possible the existence of a durable legal practice’ (POP, 97). And there is no mystery (at least not one that a legal theorist is obliged to solve) about how joint commitments can give rise to obligations; in so far as such commitments induce reliance and a justified set of expectations (whether explicitly or not), they can give rise to (p. 135) obligations. Thus, if it is a conceptual truth that every rule of recognition has the structure of an SCA, it is also a conceptual truth that every rule of recognition imposes an institutional obligation on the part of officials.
Nevertheless, while Coleman's analysis shows how a Hartian rule of recognition could give rise to obligations on the part of officials, it provides only a partial defence of Hart against his own criticism of Austin. The mere fact that the officials commit themselves to legal activity cannot give rise to an obligation on the part of citizens to comply with the laws made by officials as part of this commitment. An SCA, for example, may obligate members of a religious community to evaluate even the behaviour of non-members on the basis of religious laws but it cannot obligate non-members to abide by those laws. Thus, if Hart's gunman example is a valid criticism of Austin, a minimal legal system in which there is no commitment on the part of citizens to pursuing a legal system cannot give rise to an obligation on the part of citizens to abide by its laws. To the extent that such laws are enforced by the state's police power, Hart's minimal legal system, even supplemented with the notion of an SCA, is no less coercive than the Austinian legal system.18
1.3 The Separability Thesis
The final thesis comprising the foundation of positivism is the Separability Thesis. In its most general form, the Separability Thesis asserts that law and morality are conceptually distinct. This abstract formulation can be interpreted in a number of ways. For example, Klaus Füßer interprets it as making a meta-level claim that the definition of law must be entirely free of moral notions.19 This interpretation implies that any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the Separability Thesis.
More commonly, the Separability Thesis is interpreted as making an object-level claim about the existence conditions for legal validity. According to the object-level interpretation of the Separability Thesis, it is not a conceptual truth that the validity criteria include moral principles.20 Thus, the object-level interpretation asserts that there exists a conceptually possible legal system in which the legal validity of a norm (p. 136) does not depend on its moral merits. In other words, the Separability Thesis asserts that there exists at least one conceptually possible legal system in which the criteria of validity are exclusively source- or pedigree-based.
2 Historical Overview of the Incorporation Thesis
Positivism's Separability Thesis denies that the legality of a norm necessarily depends on its substantive moral merits; as H. L. A. Hart puts it, ‘it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so’ (CL, 185–6). Accordingly, the Separability Thesis implies it is logically possible for something that constitutes a legal system to exclude moral norms from the criteria that determine whether a standard is legally valid. In such a legal system, it is neither a necessary nor a sufficient condition for a norm to be legally valid that it conform to (or cohere with) a set of moral norms.
Knowing there can be legal systems without moral criteria of validity, however, does not tell us anything about whether there can be legal systems with moral criteria of validity. Inclusive positivists subscribe to the Incorporation Thesis, according to which there are conceptually possible legal systems in which the validity criteria include substantive moral norms. In such legal systems, whether a norm is legally valid depends, at least in part, on the logical relation of its content to the content of the relevant moral norms.
There are two components to the Incorporation Thesis corresponding to two ways in which the validity of a norm could depend on the moral merits of its content. According to the Sufficiency Component, there are conceptually possible legal systems in which it is a sufficient condition for a norm to be legally valid that it reproduces the content of some moral principle. The Sufficiency Component allows, then, that an unpromulgated norm might be legally valid in virtue of its moral content. According to the Necessity Component, there are conceptually possible legal systems in which it is a necessary condition for a norm to be legally valid that its content be consistent with some set of moral norms.21 Thus, the Necessity Component allows (p. 137) morality to serve as a constraint on promulgated law; it is not enough for a norm to be valid that its content stands in the appropriate logical relation to the content of some moral norms.
The Necessity Component of the Incorporation Thesis was first articulated in Hart's debate with Lon L. Fuller. In The Morality of Law, Fuller argued that the conceptual function of law is to guide behaviour.22 To be capable of performing law's conceptual function, on Fuller's view, a system of rules must satisfy the following principles: (P1) the rules must be expressed in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be (for the most part) prospective in effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent with one another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the rules must be administered in a manner consistent with their wording (ML, 39). No system of rules that fails minimally to satisfy these ‘principles of legality’, according to Fuller, can achieve law's purpose of achieving social order through the use of rules that guide behaviour.
Fuller believed his functionalist theory of law had an important advantage over Hart's theory: the principles of legality operate as moral constraints on the behaviour of lawmakers and hence show that, contra Austin, lawmakers do not necessarily have unlimited discretion to make law. On Fuller's view, Hart's notion of a rule of recognition is inconsistent with any kind of constraint on enacted legislation: ‘Hart seems to read into this characterization [of the rule of recognition] the … notion that the rule cannot contain any express or tacit provision to the effect that the authority it confers can be withdrawn’ (ML, 137). In so far as there is no way to restrict lawmaking authority in Hart's theory, he is committed to unlimited lawmaking discretion—a proposition that is difficult to reconcile with what appear to be constraints on enacted law in many legal systems.
In response, Hart denied Fuller's assumption that a rule of recognition cannot contain substantive constraints on lawmaking behaviour: ‘[A] constitution could include in its restrictions on the legislative power even of its supreme legislature not only conformity with due process but a completely general provision that its legal power should lapse if its enactments ever conflicted with principles of morality and justice’.23 Hart here is making two distinct claims: (1) the content of legislation can be constrained by moral principles, such as due process; and (2) the power of the legislature can be revoked if it fails to make legislation in conformity with morality. (p. 138) Whether these two claims are ultimately equivalent is not clear; but the first is just the Necessity Component of the Incorporation Thesis.
The Sufficiency Component of the Incorporation Thesis was, in contrast, developed later in response to Dworkin's analysis of Riggs v Palmer (the ‘Original Problem’).24 In Riggs, the court considered the question of whether a murderer should be allowed to take under his victim's will. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited such takings. Despite this, the court declined to award the defendant his gift under the will on the ground that doing so would be inconsistent with the principle that no person should profit from her own wrong (the Riggs principle). Since the judges would ‘rightfully’ have been criticized for failure to consider this principle, the Riggs principle must, according to Dworkin, be characterized as part of the community's law.
Dworkin argues that the status of the Riggs principle as law is inconsistent with positivism because the validity of a principle cannot derive from pedigree- or source-based criteria: ‘[e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition’ (TRS, 41). What explains the validity of the Riggs principle, on Dworkin's view, is not its pedigree or source, but rather its content: the principle that no person should profit from her own wrong is legally valid because it is a moral requirement of fairness.
The positivist has a number of moves available in response.25 For example, the positivist can argue that the judges in Riggs reached outside the law in deciding the case on the basis of the moral principle that no person shall profit from her own wrong. The Riggs principle, on this line of reasoning, is neither legally valid nor legally binding (in the way a law of another country might be legally binding on a judge in a case involving that country's law). The judges in Riggs were free to apply or ignore this principle as they saw fit in the exercise of strong judicial discretion. But this, of course, is not a plausible response. The sheer prevalence of such principles in judicial decision-making and the expectations of the public in regard to such practices suggest that judges are bound to consider such principles in deciding hard cases—even if Dworkin turns out to be wrong in thinking they are part of the law.
David Lyons adopts a different strategy; on his view, Dworkin's criticism rests on a caricature of Hart's positivism:
Dworkin's critique … turns upon a fundamental misconception of legal positivism, namely, that the positivists' use of ‘pedigree’ as a test for legal standards excludes tests of ‘content.’ … Hart claims that we can think of every legal system as having a ‘rule of recognition,’ which, if it were formulated, would state the ultimate criteria that officials actually use in validating legal standards. … Hart seems to place no limits on the sort of test that might be employed by (p. 139) officials, and the reason is simple: unlike other legal rules, the rule of recognition may be said to exist only by virtue of the actual practice of officials. Nothing else determines the content of this rule. The tests for law in a system are whatever officials make them—and Hart suggests no limits on the possibilities.26
Inasmuch as there are no constraints on the content of a rule of recognition, a rule of recognition can incorporate validity criteria that make moral merit a sufficient condition for legal validity. Thus, as Philip Soper points out, there is nothing in Hart that would logically preclude a rule of recognition that provides that all disputes are to be settled as justice required.27
Hart is generally taken as accepting the Sufficiency Component, but he has never clearly and unambiguously endorsed it. The closest Hart has come to embracing the Sufficiency Component is in his remarks in the postscript where he rejects ‘plain-fact’ positivism in favour of the Incorporation Thesis:
Dworkin in attributing to me a doctrine of ‘plain-fact positivism’ has mistakenly treated my theory … as requiring … that the criteria of validity which the rule provides should consist exclusively of the specific kind of plain fact which he calls ‘pedigree’ matters. … [This] ignores my explicit acknowledgement that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values. (CL, 250).
Thus, according to Hart, Dworkin's view that positivism is committed to exclusively source-based criteria of validity misunderstands Hart's theory: ‘there is nothing in my [theory that suggests the] … criteria provided by the rule of recognition must be solely matters of pedigree; they may instead be substantive constraints on the content of legislation such as the Sixteenth or Nineteenth Amendments to the United States Constitution’ (CL, 250).
While it is clear from this passage that Hart supports the Necessity Component, it is not quite as clear that he endorses the Sufficiency Component.28 Nevertheless, Hart is most plausibly construed as being committed to both components. First, as Lyons points out, Hart rejects the idea that there are any constraints on the content of the social practice giving rise to the rule of recognition; indeed, Hart himself asserts that ‘[t]here is … no logical restriction on the content of the rule of recognition’.29 Secondly, as Coleman argues, Hart's point in reaffirming the Incorporation Thesis in response to Dworkin was to show that positivism could accommodate his view that (p. 140) the Riggs principle is legally valid because it is a moral requirement of fairness.30 Since only the Sufficiency Component can accommodate Dworkin's analysis of Riggs, Hart is most plausibly construed as adopting both components of the Incorporation Thesis.
Exclusive positivists adopt a different strategy for responding to the Original Problem. They reject Dworkin's analysis of Riggs, arguing instead that the authority of the Riggs principle must be explained in terms of its having an authoritative source. Thus, exclusive positivists deny the Incorporation Thesis and subscribe instead to the Source Thesis, according to which the existence and content of law can always be determined by reference to its sources without recourse to moral argument.
Nevertheless, denying the Incorporation Thesis does not commit exclusive positivists to denying the obvious fact that legal systems often include validity criteria that are described using moral language. Exclusive positivists concede, as they must, both that criteria of validity often contain moral language and that judges often engage in moral argumentation in making decisions about the validity of judicial and legislative acts.
What exclusive positivists deny is that the presence of moral language in a rule of recognition succeeds in making moral requirements part of the law; otherwise put, they deny that ostensibly moral provisions in a rule of recognition succeed in incorporating moral content into the validity criteria.31 Instead, they argue that such provisions, if part of the law, must be construed as directions that courts consider moral norms under certain circumstances. Exclusive positivists, for example, construe the Eighth Amendment as requiring that judges consider moral standards prohibiting cruelty in determining whether to allow certain punishments to be administered; these moral standards are binding but not law. Complying with this directive, of course, will require judges to engage in precisely the sort of moral argument that seems to be common in constitutional cases. But exclusive positivists insist that judicial rulings on such matters necessarily involve creating new law in the exercise of (p. 141) judicial discretion. Thus, on this view, provisions of the rule of recognition that include moral language succeed, at most, in incorporating into the law judicial holdings about morality.32
Inclusive positivists may appear to have the stronger view; for their interpretation of the relevant legal practices seems easier to reconcile with both the language of directives that include moral terms and the associated practices of lawyers and judges.33 After all, the Eighth Amendment asserts that ‘cruel and unusual punishment [shall not be] inflicted’ and not that ‘judges should consult the moral notion of cruelty in deciding whether to uphold a punishment’. But critics of inclusive positivism have developed a number of arguments purporting to show that inclusive legal positivism is conceptually incoherent. According to these critics, who range from anti-positivists like Dworkin to exclusive positivists like Raz and Shapiro, inclusive positivism is untenable because the Incorporation Thesis is inconsistent with other basic commitments of positivism.
3 The Incorporation Thesis and the Social Fact Thesis
In ‘The Model of Rules I’, Dworkin anticipates the Hartian solution to the Original Problem and rejects it. On his view, the validity of legal principles cannot be explained by a rule of recognition that defines purely social criteria of validity:
[W]e could not devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle, still less to fix its weight at a particular order of magnitude. We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards … about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards. We could not bolt all of (p. 142) these together into a single ‘rule,’ even a complex one, and if we could the result would bear little relation to Hart's picture of a rule of recognition. (TRS, 40–1)34
The problem with Hart's solution, then, is that a rule of recognition cannot specify how much weight a principle should receive because its weight can be determined only by complex strategies of moral reasoning that cannot be expressed in a rule of recognition.
This line of criticism presupposes that the conceptual function of a rule of recognition is to provide a test that decides all questions of law. Indeed, as Dworkin frequently describes Hart's view, it is a conceptual truth that ‘in every legal system some commonly-accepted test does exist for law, in the shape of a social rule, and this is enough to distinguish legal from moral rules and principles’ (TRS, 60). But, according to Dworkin, there cannot be a test for resolving questions of law involving standards with the dimension of weight: the role that such standards play in legal reasoning is too complex to be captured by something as simple as a test.
Dworkin's argument here fails because there is nothing in the concept of a rule of recognition that commits the positivist to claiming it provides a test that eliminates uncertainty about what legally valid norms and principles require. Thus, Hart writes:
[Many of Dworkin's criticisms] rest on a misunderstanding of the function of the rule. It assumes that the rule is meant to determine completely the legal result in particular cases, so that any legal issue arising in any case could simply be solved by mere appeal to the criteria or tests provided by the rule. But this is a misconception. (CL, 258)
Indeed, Hart believes that uncertainty with respect to what the law requires is inevitable: ‘[w]hichever device … is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture’ (CL, 127–8). Where a legal dispute involves a question of law implicating a rule's open texture, ‘uncertainties as to the form of behaviour required by them may break out in particular concrete cases’ (CL, 126).
Moreover, as Coleman points out, a rule of recognition need not serve any identification function at all: ‘The rule of recognition sets out validity or membership conditions. It may, but it need not, serve an epistemic role. It may, but it need not, provide the vehicle through which individuals identify the law and its content’ (ICP, 416). As a matter of empirical fact, most ordinary citizens and lawyers do not directly use the rule of recognition as an identification rule. Instead they rely on official and (p. 143) unofficial reporters identifying sentences that were purportedly enacted in accordance with the rule of recognition. While such individuals rely indirectly on the rule of recognition by trusting that these reporters accurately reproduce sentences satisfying the validation conditions of the rule, they are not using the rule of recognition directly to identify sentences that give rise to valid law. Of course, this does not preclude using the rule of recognition as an identification rule, but it does show that the rule of recognition need not serve as such.
What is essential to the concept of a rule of recognition is that it provides the conditions that must be satisfied by a norm for it to count as legally valid. Thus, the rule of recognition sets out validation conditions: a legal norm has the property of validity because and only because it satisfies the criteria contained in the rule of recognition. For example, the rule prohibiting intentional killing in Washington is valid because and only because it was enacted by the legislature according to the procedures described in the rule of recognition. Dworkin's criticism, then, fails not only to the extent that it assumes that the rule of recognition must provide a test for identifying questions of law, but also to the extent that it assumes the rule of recognition must set out identification conditions.
4 The Incorporation Thesis and the Weak Conventionality Thesis
Exclusive and inclusive positivists flesh out the Weak Conventionality Thesis in different ways, but the basic idea is this: the criteria of legal validity are established by a social convention in the form of a rule of recognition. If legal standards are distinguished from non-legal standards in that the former satisfy, while the latter do not, the criteria established by a conventional rule of recognition, it follows that the validity criteria are exhausted by the conventional rule of recognition in the following sense: for every proposition P, P is legally valid if and only if it satisfies the criteria articulated in the conventional rule of recognition.
Dworkin believes that certain kinds of disagreement about law are inconsistent with Hart's characterization of the rule of recognition as a ‘social rule’. As a social (or conventional) rule, the rule of recognition has an external and internal aspect. The external aspect consists in general obedience to the norms satisfying its validity criteria; the internal aspect consists in its acceptance by officials as a standard of official behaviour. On Dworkin's view, this element of Hart's theory entails that there cannot be any disagreement about the content of the rule of recognition:
(p. 144) Hart's qualification … that the rule of recognition may be uncertain at particular points … undermines [his theory].… If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any social rule [of recognition] governs that decision; on the contrary, it is certain that none does. (TRS, 61–2)
As Dworkin reads Hart, the requirements of a social rule simply cannot be controversial: ‘two people whose rules differ …cannot be appealing to the same social rule, and at least one of them cannot be appealing to any social rule at all’ (TRS, 55).
The problem here arises because of the rule of recognition's internal aspect. Disagreement among citizens about the content of the rule of recognition presents no problem because Hart's theory does not assume that they accept or understand the rule, but disagreement among officials is another story. In so far as the rule's internal aspect is defined by a critical reflective attitude towards the rule, it seems to entail understanding of the rule's contents. Since Hart requires that officials adopt a critical reflective attitude towards the same rule, it seems to follow that they share an understanding of the contents of the rule of recognition. But if the rule of recognition exhausts the criteria for legal validity and is constituted by a shared understanding among officials, it is not clear how there could be disagreement among officials about the rule's content.
The exclusive positivist has a straightforward response: the disagreements to which Dworkin refers are not disagreements about what the rule of recognition is; rather they are disagreements about what it should be. This response implicitly concedes Dworkin's claim that if there is disagreement about what a conventional rule requires, there is no convention and hence no rule on the issue; on this view, the presence of controversy about the content of a convention signals a gap in the content of the convention. For this reason, controversy about what the rule of recognition requires in some circumstance signals a gap in the content of the rule of recognition; the rule has simply run out. Such disagreements among officials, then, are about what the content of the rule of recognition should be.
But the inclusive positivist cannot rest on such a response. Moral norms are not usually thought of as being conventional. On traditional understandings of critical morality, the requirements of a moral norm can be determinate even when people disagree about what the norm requires. Thus, in so far as the inclusive positivist holds that the rule of recognition incorporates the content of a moral norm in the sense that it makes that norm part of the meta-rule, it will not do merely to claim that controversy about the meta-rule indicates a gap in its content. For if the relevant provision is just some moral norm, there can be controversy about what that provision requires in a given case without it implying that the provision is indeterminate. Thus, the inclusive positivist needs to explain how there could be controversy about a rule of recognition that incorporates moral content.
Coleman provides such an explanation. As Coleman points out, if the rule of recognition is a social rule, then Hart's view implies there must be general agreement (p. 145) among the officials of a legal system about what standards constitute the rule of recognition. But it does not imply there cannot be disagreement as to what those standards require in any given instance:
The controversy among judges does not arise over the content of the rule of recognition itself. It arises over which norms satisfy the standards set forth in it. The divergence in behavior among officials as exemplified in their identifying different standards as legal ones does not establish their failure to accept the same rule of recognition. On the contrary, judges accept the same truth conditions for propositions of law. … They disagree about which propositions satisfy those conditions. (NAPP, 156)
Coleman, then, distinguishes two kinds of disagreement practitioners can have about the rule of recognition: (1) disagreement about what standards constitute the rule of recognition; and (2) disagreement about what propositions satisfy those standards. On Coleman's view, Hart's analysis of social rules implies only that (1) is impossible.
5 The Incorporation Thesis and the Separability Thesis
Hart's response to the criticisms raised by Fuller and Dworkin is, as we have seen, to adopt the Incorporation Thesis, but Hart is not entirely comfortable with this strategy. A few pages later, Hart qualifies his endorsement of the Incorporation Thesis: ‘if it is an open question whether moral principles and values have objective standing, it must also be an open question whether “soft positivist” provisions purporting to include conformity with them among the tests for existing law can have that effect or instead, can only constitute directions to courts to make law in accordance with morality’ (CL, 254).
Hart's concern here is that the Incorporation Thesis presupposes the objectivity of moral norms (i.e., that moral principles have objective standing or are objectively true). Hart believes that legal norms can constrain judicial decision-making only if such norms have objective content (i.e. only if there is an objectively correct answer to what the norm requires). If a legal norm lacks such content, then there is no possibility of the judge making a mistake about its content; thus, it is up to the judge to determine content on the basis of extra-legal considerations. Determining the content of such a norm, then, necessarily involves legislating, rather than just judging. Thus, if moral norms lack objective standing, then the only way, on Hart's view, to give effect to a legal norm containing moral language is to treat it as directing the judge to exercise his ‘lawmaking discretion in accordance with his best understanding of (p. 146) morality’ (CL, 253). Since it is an open question whether moral objectivism is true, it is an open question whether a rule of recognition can incorporate moral criteria of validity.
Dworkin, however, argues that a commitment to moral objectivism is problematic for positivism because it is inconsistent with the Separability Thesis's claim that ‘the objective standing of propositions of law [is] independent of any controversial moral theory either of meta-ethics or of moral ontology’ (TRS, 349). As Dworkin sees it, the Separability Thesis ‘promis[es an] ontological separation of law from morals’ (TRS, 348–9). On this view of the Separability Thesis, there can be no overlap between questions about the existence of any law-related standard or institution and questions about morality. Any intersection of legal and moral validity at even the level of contingent description would violate the Separability Thesis, thus construed, because questions about whether a standard is legally valid are ontological questions about whether that standard, so to speak, exists as a law.
This line of criticism misconstrues Hart's version of the Separability Thesis. As Hart expresses this thesis, ‘it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so’ (CL, 185–6). Hart's articulation of the Separability Thesis is weaker than Dworkin's version in an important respect: whereas Dworkin interprets the Separability Thesis as implying there cannot be any moral constraints on legal validity, Hart interprets it as implying only that there need not be any moral constraints on legal validity.
Dworkin's criticism, then, presupposes an implausibly broad construction of the Separability Thesis; there is simply no reason to think that the Separability Thesis, by itself, promises a complete ontological separation of law and morality. Indeed, most positivists follow Hart in claiming that the criteria for legal validity must, as a conceptual matter, include rules for making, changing, and adjudicating laws. But apart from that conceptual restriction, it is up to each society to decide what standards will make up its criteria of validity. The point of the Separability Thesis is to emphasize that there are no necessary substantive moral constraints on what standards a society can include in its criteria of validity. For this reason, the Separability Thesis implies there is a conceptually possible legal system without moral standards in its validity criteria, but leaves open the issue of whether there is a conceptually possible legal system with moral standards in its validity criteria.35
(p. 147) 6 The Incorporation Thesis and the Nature of Authority
6.1 The Nature of Authority
At the foundation of the Razian critique of inclusive positivism is the view that law necessarily claims legitimate authority (the Authority Thesis).36 Raz concedes that law's claim of authority is often false, but he insists this claim is ‘part of the nature of law’: ‘though a legal system may not have legitimate authority, or though its legitimate authority may not be as extensive as it claims, every legal system claims that it possesses legitimate authority’ (ALM, 215). The Authority Thesis, then, purports to state a conceptual truth about law: it is part of the very concept of law that law claims legitimate authority.
On Raz's view, the Authority Thesis implies that, as a conceptual matter, law must be capable of possessing legitimate authority: ‘If the claim to authority is part of the nature of law, then whatever else the law is it must be capable of possessing authority’ (ALM, 215). A normative system that is not the kind of thing capable of possessing authority is conceptually disqualified from being a legal system.
To be capable of possessing authority, the law must be able to ‘mediate between people and the right reasons that apply to them’ (ALM, 214). According to Raz's ‘service conception of authority’, the conceptual point or function of authority is to stand between subjects and the reasons that apply to them by providing directives that reflect those reasons. A normative system that cannot perform this mediating function is incapable of possessing authority and is hence conceptually disqualified from being a legal system.
Crucial to Raz's service conception of authority is the special status that authority purports to have in practical deliberations. Unlike the advice of a third person, which provides one reason to be weighed in the balance with other reasons, an authoritative directive replaces—or preempts—those other reasons:
The [authority's] decision is for the [subjects] a reason for action. They ought to do as he says because he says so. … [But] it is not just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason. … The [authority's] decision is also meant to replace the reasons on which it depends. In agreeing to obey his decision, the [subjects] agreed to follow his judgment of the balance of reasons rather than their own. Henceforth his decision will settle for them what to do. (ALM, 212–13)
On Raz's view, then, the conceptual function of authority implies that authoritative directives play (or should play) this special role in practical deliberation. Thus, (p. 148) according to the Pre-emption Thesis, ‘the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them’ (ALM, 214).
Raz believes that these conceptual features of authority determine the conditions under which an authority is morally legitimate. Given that authority is supposed to ‘serve’ its subjects, there is no reason to accept an authority unless two conditions are satisfied. First, according to the Normal Justification Thesis (NJT), it must be the case that the disputant ‘is likely to better comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly’ (ALM, 214). Secondly, according to the Dependence Thesis, authoritative directives should be based on reasons that already apply to the subjects.
Of course, NJT and the Dependence Thesis also apply to advice in so far as the point of advice, as seems plausible, is to serve the advisees; for this reason, any implications of just these two theses also apply to advice. For example, NJT and the Dependence Thesis imply that a service directive must be presented as someone's view about how people should behave—which is true, of course, of both authority and advice. But when NJT and the Dependence Thesis are combined with the Pre-emption Thesis, which distinguishes advice from authority, they imply that authoritative directives have a property that distinguishes them from merely advisory directives:
The Identification Thesis: It must always be possible to identify the existence and content of an authoritative directive without recourse to the dependent reasons that justify that directive.
Inability to identify the existence or content of advisory statements without recourse to the reasons that justify that advice might diminish the utility of those statements qua advice, but it does not conceptually disqualify those statements from being advice. But inability to identify the existence or content of a directive without recourse to its dependent justification conceptually disqualifies that directive from being authority.
The reason for this somewhat surprising result is that the conceptual point of authority is to benefit subjects by providing directives that reflect the balance of applicable reasons and pre-empt the subjects' judgments about that balance. A directive that cannot be identified by the subject without recourse to the balance of reasons is incapable of pre-empting that balance in the deliberations of the subject. Thus, as Raz points out, subjects of authority ‘can benefit by its decisions only if they can establish their existence and content in ways which do not depend on raising the very same issues which the authority is there to settle’ (ALM, 219).
Raz argues that the Identification and Authority Theses are inconsistent with the Incorporation Thesis. Since law necessarily claims authority, the law must be capable (p. 149) of possessing legitimate authority and hence, according to the Identification Thesis, be identifiable without recourse to the dependent reasons justifying the law. But the content of a moral norm cannot be identified without recourse to the reasons justifying that norm. To determine what the law is, for example, under a recognition rule that validates only enacted norms consistent with the requirements of justice, we must identify the moral requirements of justice that ultimately justify that law. We cannot determine the validity of, say, an enacted norm prohibiting the killing of innocent persons without recourse to the requirements of justice as they pertain to such killings. This implies that the content of a moral rule cannot be incorporated into the rule of recognition because the law qua authority is supposed to settle disputes about what the law requires. If the Identification and Authority Theses are true, then the Incorporation Thesis must be false.
Schematically, Raz's argument can be summarized as follows:
1. The conceptual point of an authoritative directive is to pre-empt the balance of reasons it reflects.
2. It is a necessary condition for authority to be legitimate that (1) the Dependence Thesis be satisfied and (2) NJT be satisfied.
3. If premises 1 and 2 are true, then it is a necessary condition for authority to be legitimate that the existence and content of an authoritative directive can always be identified without recourse to the dependent reasons justifying the directive.
4. Therefore, it is a necessary condition for authority to be legitimate that the existence and content of an authoritative directive can always be identified without recourse to the dependent reasons justifying the directive. (From 1, 2, 3)
5. It is a conceptual truth that law claims legitimate authority.
6. If it is a conceptual truth that law claims legitimate authority, then law is the sort of thing that is always capable of being legitimate authority.
7. If law is the sort of thing that is always capable of being legitimate authority, then law must be capable of satisfying the necessary condition for authority to be legitimate.
8. Therefore, if law is the sort of thing that is always capable of being legitimate authority, then the existence and content of a legally authoritative directive can always be identified without recourse to the dependent reasons justifying the directive. (From 4, 7)
9. Therefore, if it is a conceptual truth that law claims legitimate authority, then the existence and content of a legally authoritative directive can always be identified without recourse to the dependent reasons justifying the directive. (From 6, 8)
10. Therefore, the existence and content of a legally authoritative directive can always be identified without recourse to the dependent reasons justifying the directive. (From 5, 9)
11. The existence and content of a legal norm validated by moral criteria of validity cannot be identified without recourse to the dependent reasons justifying that norm.
(p. 150) 12. If premises 10 and 11 are true, then the Incorporation Thesis is false.
13. Therefore, the Incorporation Thesis is false. (From 10, 11, 12)
6.2 Coleman's Compatibility Argument
Coleman rejects Raz's view that the Incorporation Thesis is inconsistent with the set of theses making up the service conception of authority. On Coleman's view, it is not necessarily true that a legal norm authoritative in virtue of its moral merits can be identified only by recourse to the dependent reasons justifying that norm. Consider, for example, a legal system with the rule of recognition that ‘only enacted norms that treat individuals fairly are legally valid’ and a valid legal prohibition on intentional killing. According to Coleman:
Certain reasons of fairness and equality (for example, does the law offer fair opportunities for appeal?, is it fairly administered?, etc.) are not part of the justification for laws prohibiting murder. A prohibition against murder would be justified or defensible just because it violates Mill's Harm Principle, or because murder violates the Categorical Imperative, or because it is inefficient … or whatever. On the other hand, it is perfectly sensible that no particular prohibition could count as law unless it met certain requirements of fairness and equal treatment in its administration. This is just another way of saying that the evaluative considerations that go to the legality of a rule need not coincide with those that go to the underlying merits of the rule. (ST, 271)
While recourse to considerations of fairness may be necessary to identify the murder prohibition as a legal norm, one can none the less identify the murder norm without recourse to its dependent justification because considerations of fairness are irrelevant with respect to that norm's justification. Thus, even if all of Raz's central claims about authority are true, ‘[e]valuative criteria of legality as such do not vitiate law's claim to authority’ (ST, 271).
In response, Brian Leiter argues that merely pointing to one example of an inclusively validated norm that can be identified without recourse to the dependent reasons justifying adoption of the rule cannot defeat the Razian objection. On Leiter's view, ‘it suffices to defeat Soft Positivism as a theory compatible with the law's authority if there exists any case in which the dependent reasons are the same as the moral reasons that are required to identify what the law is; that there remain some cases where these reasons “may” be different is irrelevant’.37 Accordingly, Leiter concludes Coleman has it backwards: one contrary case shows ‘that Soft Positivism is incompatible with the (in-principle) authority of law’.38
(p. 151) 6.3 The Preemption Thesis
Waluchow attempts to reconcile the Incorporation Thesis with the Authority Thesis by challenging the claim that authoritative directives necessarily provide pre-emptive reasons. Waluchow believes that the Canadian Charter is an inclusive rule of recognition that can exert authority without providing pre-emptive (i.e. exclusionary) reasons. Thus, for example, he points out that the Canadian Supreme Court held in Regina v Oakes that a Charter right can be limited provided that the objectives of doing so are ‘sufficiently important’ and that there is no other way to achieve those objectives. On the basis of such examples, Waluchow concludes that ‘Charter rights … are not fully exclusionary, but they do enjoy a very heavy presumption in their favor’.39
But Waluchow's observation that the scope of a constitutional right can be limited by other kinds of value cannot, by itself, defeat the Razian critique. For Raz concedes that exclusionary directives may sometimes operate in precisely this way:
An exclusionary reason may exclude all or only a certain class of first-order reasons. The scope of an exclusionary reason is the class of reasons it excludes. Just as any reason has an intrinsic strength which can be affected by strength-affecting reasons so every second-order reason has, as well as a strength, an intrinsic scope which can be affected by scope-affecting reasons.40
Accordingly, Raz can respond that the reasons provided by the Canadian Charter are exclusionary but none the less have a limited scope that excludes the more important values that can justify limiting a Charter right. Just as a sergeant's command must yield to commands by higher-ranking servicemen, the protections of the Canadian Charter must yield to protections of more important values.
Heidi Hurd adopts a more aggressive strategy against the Pre-emption Thesis; whereas Waluchow wishes to show there are forms of authority that do not provide pre-emptive reasons, Hurd argues that the very notion of a pre-emptive reason as it functions in Raz's theory is conceptually incoherent. Hurd believes that if Raz is correct, then obedience to authority is irrational because it contradicts the principle that an agent should act in accordance with the balance of reasons.41 In so far as the Razian account of authority requires an agent to comply with an authoritative directive regardless of whether the directive conforms to the balance of reasons, it violates this central principle of rationality by requiring the agent to ignore reasons that would otherwise apply to her.
Such implications need not cause theoretical anxiety, on Hurd's view, because Raz's concept of a content-independent pre-emptive reason is incoherent. Hurd (p. 152) believes that Raz's theory of authority implies that if an action is rational solely because it is commanded by a legitimate practical authority acting within the scope of such authority, then any action commanded by a legitimate practical authority acting within the scope of such authority is rational. But this implies that ‘in order to judge whether indeed an authority is acting legitimately one must balance the reasons for action in each case in which a law applies so as to police the ability of the claimed authority to order action in conformity with that balance’ (CA, 1633). For to determine whether the authority is legitimate and acting within the scope of her authority, the agent must determine whether the conditions of NJT are satisfied—and this requires the agent to balance the reasons that apply.
Such a result is problematic for Raz, according to Hurd, because it is inconsistent with the Pre-emption Thesis:
If (1) the rationality of abiding by a practical authority depends upon the legitimacy of that authority, and (2) the legitimacy of a practical authority can be established only by balancing the first-order content-dependent reasons for action, and (3) practical authority bars one from balancing those first-order content-dependent reasons, then practical authority cannot be rational. (CA, 1633)
The idea is as follows: the agent must balance the first-order reasons in each case of an authoritative directive to determine whether the conditions of NJT apply, but the Pre-emption Thesis bars the agent from balancing those first-order reasons.
Hurd's reasoning, however, equates Raz's notion of a pre-emptive reason with Hart's notion of a peremptory reason for action. As Hart describes this notion:
The commander's expression of will … is not intended to function within the hearer's deliberations as a reason for doing the act, not even as the strongest or dominant reason, for that would presuppose that independent deliberation was to go on, whereas the commander intends to cut off or exclude it. This I think is precisely what is meant by speaking of a command as ‘requiring’ action and calling a command a ‘peremptory’ form of address. Indeed, the word ‘peremptory’ in fact just means cutting off deliberation, debate, or argument. 42
Thus, a peremptory reason P, as Hart defines the term, operates to preclude, forbid, or cut off deliberation on the balance of reasons that P is intended to replace.
But the Hartian notion of a peremptory reason is much stronger than the Razian notion of a pre-emptive reason. For there is nothing in Raz's notion of a pre-emptive reason that precludes the agent from thinking about the balance of reasons. What a pre-emptive reason precludes the agent from doing is acting on her perception of the balance of reasons; an agent may deliberate if she wishes on the balance of reasons, but may not act on the outcome of such a deliberation. 43 To put it in Razian terms, a pre-emptive reason replaces the agent's own judgment of the balance of reasons in the (p. 153) agent's deliberation of what to do. But this ultimately precludes the agent only from acting on her perception of the balance of reasons; unlike Hart's account, it does not bar her from deliberating on the balance of reasons. If Raz's service conception of authority is ultimately untenable, it is not because he commits himself to the contradictory premises that Hurd identifies.
6.4 The Normal Justification Thesis
Hurd's critique of Raz is ultimately grounded in the assumption that NJT is a principle of practical rationality. Indeed, she views Raz as attempting to answer the question of when it is rational for a person to accept authority: ‘The question that must be answered [by Raz's theory], then, is this: Why would it ever be rational to act solely because one has been told to do so’ (CA, 1627)? On her view, it cannot be rational to act solely for such a reason because ‘if an action is rational solely because it has been commanded, then any action that is commanded is rational’ (CA, 1628)—and she believes, plausibly enough, that the consequent of this conditional is clearly false.
But Raz does not intend NJT as a practical thesis; rather he intends NJT as ‘a moral thesis about the type of argument which could be used to establish the legitimacy of authority’.44 As Raz correctly understands it, the notion of legitimacy is a moral notion: ‘No system is a system of law unless it includes a claim of legitimacy, or moral authority. That means that it claims that legal requirements are morally binding, that is that legal obligations are real (moral) obligations arising out of the law.’45 Likewise, he argues: ‘If [a legal system] lacks the moral attributes required to endow it with legitimate authority then it has none. … To claim authority it must be … a system of a kind which is capable in principle of possessing the requisite moral properties of authority’ (ALM, 215).
The notion of moral legitimacy is related to the notion of a pre-emptive reason, on Raz's view, in the following way. It is generally thought that what it means to say that an authority is legitimate is that there exists a general moral obligation to obey a directive of the authority because it originates with the authority.46 Accordingly, the moral obligation to obey the directives of legitimate authority has to do with the source of the directive—and not with its content. Of course, the content of a law can also give rise to a moral obligation to obey, as is the case with a law prohibiting (p. 154) murder, but this has nothing to do with the moral authority of a legal system to issue directives. Construed as a moral thesis, then, NJT states the conditions under which authoritative directives give rise to content-independent moral obligations to obey.
Raz believes that moral obligations function (or should function) in the mind of a moral agent as pre-emptive reasons for action. In so far as the agent has a moral obligation to do A, it is morally impermissible for her to refrain from doing A. It follows, a fortiori, that in so far as the agent has a moral obligation to do A, it is morally impermissible for her to refrain from doing A regardless of how she sees the balance of reasons. Thus, a moral obligation to do A operates to bar the agent from acting on her perception of the balance of reasons. For this reason, if successful in stating the conditions under which de facto authority is legitimate, NJT would also succeed in stating the conditions under which authoritative directives function (or should function) as pre-emptive reasons for action.
Moreover, if it is rational for an agent to comply with a moral obligation even when it conflicts with her perception of the balance of reasons minus the reason provided by the obligation, then NJT also shows how it can be rational for an agent to follow the directives of a legitimate authority. In so far as the directives of a morally legitimate authority give rise to moral obligations, it is rational for the agent to comply with those directives—even when they conflict with the agent's perception of the balance of reasons. Thus, NJT provides the conditions under which it is rational to treat the directives of authority as providing a pre-emptive reason for action.
One can, however, argue that NJT fails as an account of morally legitimate authority because satisfaction of NJT is neither sufficient nor necessary to give rise to a content-independent moral obligation to obey. The mere fact that complying with an authority's directives is more likely to conduce to the demands of right reason than not complying can perhaps oblige a person to obey the authority, but it cannot morally obligate her to do so. Nor can it provide a moral justification for using coercive means to enforce those directives against that person.
Suppose, for the sake of simplicity, that right reason demands that we always comply with moral standards. Suppose also that X is infallible in determining what is required by morality. While it is true that I am morally obligated to comply with moral standards, this does not imply that I am morally obligated to obey X. Of course, if X is morally infallible, I am morally obligated to comply with the directives of X because of the content of X 's directives—but not because X is the source of the directives. Here it is important to remember that Raz's account of legitimate authority involves a content-independent obligation to follow authoritative directives. While I am obligated to conform my behaviour to the content of what X directs because the content conforms to morality, X's moral infallibility alone cannot give rise to a content-independent moral obligation on my part to obey X. Thus, satisfaction of NJT is not sufficient for morally legitimate authority.
Nor is it necessary. If you and I consent to abide by the directive of an authority and forgo options that would otherwise be available to us, our mutual consent morally (p. 155) obligates us to comply with the authority's decision. There are different ways to explain how this gives rise to a moral obligation on the part of each of us to obey the directives. One might take, for example, a strict contractarian view and conceptualize our mutual consent as a contract that gives rise to the obligation. Or one might argue it would be unfair to allow someone to reap a benefit from disobedience when others forgo that benefit. But however this is done, a key element in the legitimacy of authority is typically thought to rest on the express or implied consent of all persons over whom the authority is thought to be legitimate.
Of course, there are limits on the extent to which consent gives rise to moral obligations—even if that consent is bargained for or relied upon by other people. As Raz points out, consent to regard a directive as authoritative presupposes certain restrictions on the considerations by which an authority determines which directives to issue. In ordinary circumstances, for example, consent to an authority presupposes that she may not decide issues on the basis of a coin-flip. Likewise, mutual consent and reliance is not enough to rescue a bargain if it is extremely unfair to one of the parties. But these are exceptional circumstances and not the general rule with respect to the relation between consent and authority. If the parties are capable of giving effective consent to authority and the consent is secured fairly, then the conditions articulated by NJT are not necessary for consent to authority to give rise to a moral obligation to obey the directives of that authority.
6.5 The Authority Thesis
Many inclusive positivists attempt to defend the Incorporation Thesis against the Razian critique by challenging the Authority Thesis.47 For example, Philip Soper argues that ‘nothing in the practice of law as we now know it would change if the state, convinced by arguments that there is no duty to obey law qua law, openly announced that it was abandoning any such claim’.48 Soper gives four reasons in support of this claim: (1) the duty to obey the law is not usually expressed in a legal norm; (2) abandoning the view that the state claims citizens have a moral duty to obey law does not mean the state must abandon its view about the moral merits of the law; (3) a state could openly adopt the bad man's point of view with respect to its rules; and (4) a legal system can survive on the strength of coercion alone and hence need not claim moral authority.
Soper's defence of inclusive positivism, however, misunderstands the character of the Authority Thesis. Soper's argument that abandoning the claim to moral (p. 156) authority would not result in any practical changes construes the Authority Thesis as a view about what a legal system must claim in order to be efficacious. For Soper's point is that if the state openly repudiated a claim to authority, we would not notice any change in the day-to-day workings of the legal system. But the Authority Thesis neither asserts nor implies that legal systems claiming authority are more likely to be efficacious than legal systems not claiming authority because the Authority Thesis is a conceptual claim—and not an empirical claim; it is, on Raz's view, ‘part of the nature of law’ that law claims legitimate authority. Thus, Raz can concede we would not notice any differences in the day-to-day functioning of a legal system S if it abandoned any claim to authority, but argue that the abandonment of that claim implies the abandonment of S's status as a legal system.
What is needed to rebut the Authority Thesis is an example of a system of rules that makes no claim to moral authority yet is plausibly characterized as a legal system; in other words, what is needed is a counter-example to the Authority Thesis. Matthew Kramer attempts such a rebuttal:
Of course, an organized-crime syndicate such as the Mafia might well exert control over most aspects of life in a certain region, with dictates that are just as broadly applicable and lasting as the mandates of a veritable legal system. … If the Mafia's system of exercising far-reaching control does indeed very substantially partake of the key qualities [of durability and generality], and if it also meets some relevant test for efficacy (whatever that test might be), then it ought to be classified as a legal system. Or, at any rate, the appropriateness of such a classification should not be denied merely because the Mafia's officials make no pretensions to moral admissibility.49
Nevertheless, this is unsuccessful as a response to the Authority Thesis because it is not clearly a counter-example. In other words, it is just not obvious that the Mafia system should be characterized as a legal system. As a result, Raz could respond, quite plausibly, that the last sentence in the quoted passage simply begs the question.
A more promising example is as follows. Suppose there is a society S that is as much like ours as is consistent with the following properties: the lawmakers and law-subjects in S, being philosophically sophisticated, have seen all the arguments and counter-arguments for the claim that law can be legitimate. As a result, the residents of S and officials are all sceptical that law can ever give rise to a content-independent moral obligation to obey law. Thus, citizens and officials of S refrain from using the potentially misleading terms ‘authority’, ‘duty’, ‘obligation’, and ‘right’, relying instead on terms like ‘official’, ‘required’, ‘mandatory’, ‘non-optional’, and ‘permitted’ (as opposed to ‘permissible’).
Both of Hart's minimum conditions for the existence of a legal system are satisfied in S. The officials of S adopt the internal point of view towards the rule of recognition out of a sense that, as a practical matter, something must be done to regulate behaviour. Indeed, all the law-subjects of S believe it is in everyone's interest to structure a (p. 157) system of rules around the conventions adopted by the officials—and, thus, also take the internal point of view towards the criteria of validity. And, recognizing the advantages associated with having a system of rules for regulating behaviour, the law-subjects generally obey the directives validated by the rule of recognition.
What plausible, non-question-begging reason could there be to deny that this system of rules is a legal system? The only notable difference between the two systems of rules is that the officials in one system believe their system is legitimate, while the officials in S lack such a belief—a difference that seems irrelevant to the classification of the latter. All of the major institutions are there: a rule of recognition that creates the institutions which make possible the creation, modification, and adjudication of law. All of the citizens of S accept the determinations of the officials as strong reasons for action. The rules of S are obeyed to precisely the same extent as they are in this society. Given these observations, it makes sense to characterize S as having a legal system because it has all of the pieces necessary to create efficacious regulations for governing behaviour—even though there is nothing that could be construed as an institutional claim to legitimate authority. If this is correct, the Authority Thesis is false.
7 The Incorporation Thesis and the Practical Difference Thesis
7.1 The Case against Hartian Functionalism
Shapiro argues that the Incorporation Thesis conflicts with one of Hart's fundamental commitments, namely his view that the conceptual function of law is to guide behaviour. As Hart puts the matter, ‘it [is] quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct’ (CL, 249; emphasis added). According to Hart's functionalism, then, any system of rules incapable of guiding behaviour is conceptually disqualified from being a legal system.
Shapiro identifies two ways in which a norm can guide behaviour. First, a norm R motivationally guides a person P if and only if P's conformity to R is motivated by the fact that R requires the behaviour in question. P is motivationally guided by R, then, just in case P conforms to R because he accepts P as a standard of conduct—and not because, say, he is afraid of sanctions. Secondly, R epistemically guides P if and only if P ‘learns of his legal obligations from [R]… and conforms to [R]’.50 For R to (p. 158) epistemically guide P, then, R need not motivate compliance: as long as P learns of his obligations from R, it does not matter that P complies with R out of fear of sanctions.
Shapiro argues that Hart's minimum conditions for the existence of a legal system commit him to a particular account of how officials are guided by rules. As we have seen, Hart believes a legal system comes into existence when (1) officials take the internal point of view towards a conventional rule of recognition; and (2) citizens generally obey the laws valid under the rule of recognition. But this seems to imply that law performs its conceptual function of guiding behaviour differently according to whether one is an official or an ordinary citizen. Since Hart's minimum conditions require that citizens generally obey the law without requiring any specific motivation, first-order legal norms must be capable of epistemically guiding citizens. In contrast, since Hart's minimum conditions require that officials accept the rule of recognition as a standard of official behaviour, the rule of recognition must be capable of motivationally guiding officials.
It follows, on Shapiro's view, that Hart is committed to the Practical Difference Thesis (PDT), according to which every legal norm must be capable of making a practical difference in the deliberation of an agent by providing either motivational or epistemic guidance. Since Hart's minimum conditions for the existence of a legal system imply that every legal norm must be capable of making a practical difference in judicial deliberations by providing motivational guidance, it follows that any norm incapable of motivationally guiding a judge is conceptually disqualified from being law.
Shapiro argues that this implication is inconsistent with a commitment to the Incorporation Thesis because it is impossible for a judge to be motivationally guided by both an inclusive rule of recognition and the rules validated by it. As we will see, Shapiro offers separate arguments for necessity and sufficiency rules, but the basic strategy is as follows. Suppose that RoR is a rule of recognition that contains moral criteria of validity and that R is valid in virtue of its moral merit. If the judge is motivationally guided by RoR, then she will be motivated to decide the case in a way that is morally meritorious. But once she is motivated to decide the case in a way that is morally meritorious, R cannot provide any further motivation. For, by hypothesis, the judge will do what is morally meritorious regardless of whether she appeals to R (which, again, is valid because of its moral merit). Appeal to R cannot make a practical difference because the reasons provided by R are already contained in RoR. Thus, the Incorporation Thesis is inconsistent with the Practical Difference Thesis.
Schematically, Shapiro's argument can be summarized as follows:
1. The conceptual function of law is to guide behaviour (the Functionalist Thesis).
2. If the Functionalist Thesis is true, then a norm incapable of making a practical difference in the structure of deliberations is conceptually disqualified from being a law.
3. Therefore, a norm incapable of making a practical difference in the structure of deliberations is conceptually disqualified from being a law (PDT). (From 1, 2)
(p. 159) 4. Hart's minimum conditions for the existence of a legal system imply that the rule of recognition makes a practical difference by motivationally guiding officials and that valid first-order norms make a practical difference by epistemically guiding citizens.
5. Therefore, a rule that is incapable of motivationally guiding officials is conceptually disqualified from being a rule of recognition. (From 3, 4)
6. A judge cannot simultaneously be motivationally guided by a rule of recognition incorporating moral criteria of validity and by a norm valid under that rule of recognition (the Impossibility Thesis).
7. Therefore, a rule that incorporates moral criteria of validity is conceptually disqualified from being a rule of recognition. (From 5, 6)
8. The Incorporation Thesis allows that there can exist rules of recognition that incorporate moral criteria of validity.
9. Therefore, if the Practical Difference Thesis is true, then the Incorporation Thesis is false. (From 3, 7, 8)
10. Therefore, if the Functionalist Thesis is true, then the Incorporation Thesis is false. (From 2, 9)
Shapiro concludes that ‘[e]xclusive legal positivism … is forced on the legal positivist who is committed to a functionalist conception of law’ (HWO, 507).
7.2 Coleman's Response to Shapiro
Coleman offers a conservative response to Shapiro's argument. Coleman accepts that Shapiro's argument establishes the inconsistency of PDT with the Incorporation Thesis but denies that an inclusive positivist should abandon the Incorporation Thesis in favour of PDT:
There seems to be a difference between the status of the claim that persistence and continuity are necessary features of law and the claim that capacity to make a practical difference is. It is not possible to imagine law lacking persistence, continuity, and their implications: institutionality, secondary rules, an internal aspect. It is less clear that rules are incapable of being legally valid or binding simply because they are incapable of guiding behaviour. We might say, then, that the claim that law is a normative social practice implies that most law most of the time makes a practical difference. (ICP, 424–5)
The claim that law makes a practical difference, according to Coleman, is at most an empirical claim about what law typically does: ‘it is just not part of our concept of law that capacity for practical difference is a condition of legality, though a general capacity to make a practical difference is a feature of law generally’ (ICP, 425).
Of course, if Shapiro's premise 2 is correct and the Practical Difference Thesis is a logical consequence of the view that the conceptual function of law is to guide (p. 160) behaviour, then Coleman must also give up functionalism. 51 Though it seems that law, being an artefact of sorts, must have a distinguishing function and that guiding behaviour is the most intuitive candidate for that function, Coleman rejects the idea that law has a conceptual function on the ground that it amounts to an unacceptable metaphysical essentialism (POP, 145). Thus, Coleman concedes the soundness of Shapiro's argument but argues that the inclusive positivist should reject functionalism and the PDT.
7.3 The Necessity Component
Of the two components to the Incorporation Thesis, the Necessity Component is the weaker one relative to exclusive positivism because it, unlike the Sufficiency Component, operates only on norms that have an appropriate social source. But despite its theoretical proximity to exclusive positivism, Shapiro believes the Necessity Component is inconsistent with PDT.
The argument is as follows. Suppose that NRoR validates all and only rules that (1) are enacted by the legislature according to certain procedures and (2) are not grossly unfair. And suppose that the legislature enacts Rmw, which requires employers to pay wages of at least $6 per hour. Assume Rmw is not grossly unfair and is hence valid under NRoR. According to Shapiro, if the judge is motivationally guided by NRoR, she cannot simultaneously be motivationally guided by Rmw:
Can the minimum-wage rule at least motivationally guide a judge? The answer to this question is … ‘no.’ Recall that a rule motivationally guides conduct when it is taken as a peremptory reason for action; it follows that a rule cannot motivationally guide if the agent is required to deliberate about the merits of applying the rule. As the application of the minimum-wage rule depends, pursuant to the inclusive rule of recognition, on the [judge] first assessing whether the rule is grossly unfair, he cannot treat the rule as a peremptory reason for action and hence cannot be motivationally guided by it. (HWO, 501)
In so far as Rmw is intended to motivationally guide judicial behaviour by providing a peremptory reason that precludes deliberation on the moral merits of Rmw, it follows that Rmw cannot motivationally guide behaviour because NRoR requires that the judge deliberate on the merits of Rmw as a precondition for applying it.
The problem here arises because, as we have seen, Hart's account of peremptory reasons bars the judge from deliberating on the moral merits of Rmw.52 Insofar as a rule of recognition requires deliberation on the merits of a law as a precondition to (p. 161) applying it, that law cannot even purport to provide peremptory reasons because peremptory reasons preclude such deliberation. Since, for Hart, law motivationally guides behaviour by providing peremptory reasons, any law that must be morally assessed as a precondition of applying it is incapable of motivationally guiding behaviour in the Hartian sense.
But notice that there is nothing in the Conventionality, Social Fact, and Separability Theses that commits Hart to the view that the only way in which law can provide motivational guidance is by foreclosing deliberations on the merits of a rule. Nor is there anything in Hart's general views about the rule of recognition's having an internal aspect that commits him to defining this important idea in terms of official acceptance of peremptory authority. While there may be other features of Hart's theory that saddle him with such an account of motivational guidance,53 these features are extraneous to the central commitments of inclusive positivism. If this is correct, then an inclusive positivist can respond to Shapiro by rejecting Hart's theory of peremptory reasons as an account of how law motivationally guides behaviour.
Indeed, once we reject Hart's account of peremptory reasons as an account of motivational guidance, we can see how a judge can simultaneously be guided by NRoR and Rmw. Suppose it would be grossly unfair to employees to allow employers to pay less than $4 per hour and grossly unfair to employers to require them to pay more than $9 per hour. Suppose an employee sues an employer under Rmw, alleging that the employer is paying only $5.50 per hour in violation of the minimum-wage requirement. Suppose further the judge requires the employer to pay employees the difference between what they would have received had they been paid $6 per hour and what they actually received—and does so because Rmw constrains her to do so.
Under these suppositions, there seems to be room for Rmw to make a practical difference in the deliberation of the judge. On Shapiro's view, to determine whether a rule makes a practical difference, we must consider what the agent would do if she did not appeal to the rule; if she would do exactly the same thing without appealing to the rule, the rule does not make a practical difference. But notice that there is no reason to think that the judge's decision would have been the same without appeal to Rmw. Rmw requires employers to pay $6per hour but, by hypothesis, it would not be grossly unfair for them to pay $5.50 per hour. Thus, there is no guarantee that a judge who is motivated by NRoR would do the same thing if she did not appeal to Rmw. Indeed, the judge's decision would have been different had Rmw required $7 per hour (which, by hypothesis, is not grossly unfair). Thus, it is possible for the judge to be motivationally guided by NRoR and Rmw.
Here it is worth noting that norms valid under exclusive rules of recognition can make a practical difference because exclusive validity criteria leave judges with what Shapiro calls ‘elbow room’. A judge can be motivationally guided by both the (p. 162) exclusive rule of recognition and a rule valid under it because ‘it is always up to [the judge] to imagine that the norm no longer exists’ (HWO, 498). If the norm no longer exists or is replaced by some other norm, then the judge has a reason for doing something different. According to Shapiro, ‘[i]t is this “elbow room” carved out by dynamic rules of recognition that allows the primary legal rules to make practical differences’ (HWO, 498).
But, as the example above shows, necessity rules leave exactly the same kind of elbow room. In so far as necessity rules require that legislative enactments be consistent with some set of moral principles, they are dynamic because, in most instances, there will be more than just one rule governing a behaviour that is consistent with the relevant moral principles. There are, for example, many ways that a state could regulate the flow of traffic on an interstate highway consistent with the Eighth Amendment to the Constitution. Thus, a judge who is motivated by a necessity rule can simultaneously be motivated by a rule valid under it because the judge can always imagine that the rule no longer exists or is replaced by some other rule. As long as the positivist rejects the view that law provides peremptory reasons, she may accept the Necessity Component as a means of explaining the operation of constitutional provisions like the Eighth Amendment.
7.4 The Sufficiency Component
While Shapiro's argument against the Necessity Component is directed at Hart's account of peremptory reasons, Shapiro's argument against the Sufficiency Component targets other possible accounts of motivational guidance and is hence considerably more powerful. Let SRoR be a sufficiency rule that asserts that ‘judges are bound to apply moral norms in hard cases’ and let Rcom be the moral norm that one person A should compensate another person B when A's behaviour wrongfully results in injuries to B. Rcom is valid in virtue of its moral content under SRoR. Now suppose that the judge must decide whether John should compensate Tom for injuries he sustained when he slipped on ice that formed on John's sidewalk and that Rcom is the only relevant rule. Suppose further that the judge is motivationally guided by SRoR.
On Shapiro's view, the judge cannot simultaneously be motivationally guided by Rcom‘because the judge will act in exactly the same way whether he or she personally consults the moral principle or not’ (HWO, 496). For a judge who is motivationally guided by SRoR would be motivated to decide the case in accordance with morality—and morality requires that John compensate Tom. Thus, if the judge is motivationally guided by SRoR, Rcom cannot make a practical difference: ‘Guidance by the inclusive rule of recognition by itself is always sufficient to give the judge the right answer’ (HWO, 496).
(p. 163) One might object that the judge would have behaved differently if morality did not require John to compensate Tom; otherwise put, one might object that the judge would have decided the case differently had Rcom not been a rule. But Shapiro responds that it is simply not possible for Rcom not to be a rule under a sufficiency rule that validates all and only moral principles. Exclusive rules of recognition leave elbow room with respect to Rcom because whether Rcom is valid depends entirely on whether it has the appropriate social source—and this is a contingent matter; though Rcom is a moral requirement of corrective justice, a legislature could none the less decline to enact Rcom. Under an exclusive rule of recognition that validates Rcom, then, a judge has the requisite elbow room with respect to Rcom because ‘it is always up to us to imagine that the norm [Rcom] no longer exists’. Thus, exclusive rules of recognition are ‘dynamic’ in the sense that what rules are validated by an exclusive rule is a purely contingent matter.
And this, on Shapiro's view, distinguishes exclusive rules of recognition from inclusive rules of recognition:
In contrast to the exclusive rule of recognition, the inclusive one is static. The set of possible motivated actions is fixed at its inception and never varies. The reason for this is simple: morality is a static system—it has no ‘rule of change.’ Morality differs dramatically from law in this respect. While legal rules routinely change over time, moral rules do not. It is incoherent, for example, to say that promises no longer need be kept. If promises must be honored today, they must be honored tomorrow. (HWO, 498)
What distinguishes sufficiency rules from exclusive rules of recognition, then, is as follows: while it is a contingent matter as to what rules are valid under an exclusive rule of recognition, it is not a contingent matter as to what rules are valid under a sufficiency rule of recognition.
Nevertheless, Shapiro's argument here problematically assumes the falsity of normative ethical relativism. According to normative ethical relativism, cultures manufacture morality in the following sense: what is right or wrong in any given culture is determined entirely by what most people in the culture believe. Thus, for example, abortion is morally wrong in a culture at time t if and only if most people believe at t that abortion is wrong. But if normative ethical relativism is true, it follows, contra Shapiro, that morality is a dynamic system in which moral rules can change and hence leave sufficient elbow room for a judge ‘to imagine that the norm [Rcom] no longer exists’.
In response, Shapiro argues that normative ethical relativism will not rescue the inclusive positivist; for if it were true, ‘inclusive legal positivism would collapse into exclusive legal positivism, as both would demand that legal norms have social sources and are valid in virtue of those sources’ (LMG, 25). This, however, overstates the consequences of normative ethical relativism on legal positivism. Exclusive positivists claim it is a conceptual truth about law that it has an institutional source that serves as a pedigree for law. What is needed to validate a norm, according to exclusive positivism, is (1) some kind of intentional act (2) expressed in an institutional context (p. 164) that conforms to the conventional criteria of validity. Norms that are valid in virtue of what people in the culture generally believe satisfy neither of these conditions. While the truth of normative ethical relativism would require rethinking the distinction between inclusive and exclusive positivism, it is not because the distinction between the two would collapse.54
In any event, Shapiro has a much stronger response to the objection: even if it is possible for Rcom not to be a moral rule, Rcom cannot motivationally guide a judge who is motivationally guided by SRoR. On Shapiro's view, Rcom motivationally guides a judge to do a if and only if the judge might not have done a had she not appealed to Rcom. But if the judge is motivationally guided by SRoR, she will do what morality requires, whether this is determined objectively or intersubjectively, even if she does not appeal to Rcom. Thus, regardless of whether normative ethical relativism is true, the judge cannot be motivationally guided by both SRoR and Rcom.
7.5 Motivational Guidance and Judicial Decision
Shapiro's arguments critically rely on the claim that PDT implies that judges must be motivationally guided by first-order legal norms. As we have seen, Shapiro rejects the possibility of there being an inclusive rule of recognition because a judge who is motivationally guided by such a rule cannot simultaneously be motivationally guided by any first-order norm it validates. Once the judge is motivated by an inclusive rule of recognition, on Shapiro's view, there is no room for a first-order norm to motivationally guide the judge because the rule of recognition determines what the judge will do.
But one can reasonably wonder why any plausible version of PDT would require judges to be motivationally guided by first-order norms. Here it is important to note that, according to Hart, the rule of recognition is addressed only to officials and hence defines the legal duties of officials qua officials. In contrast, first-order legal norms do not generally define legal duties that apply to officials qua officials. Thus, when a judge evaluates a citizen's conduct under a first-order norm, her behaviour satisfies a duty defined by the rule of recognition. It does not satisfy a duty defined by the relevant first-order legal norm; the first-order legal norm, by its own terms, defines the defendant's duty—and that is why that norm is relevant.
Hart's commitments to the internal point of view and the Strong Conventionality Thesis seem to imply, as Shapiro points out, that judges must be motivationally guided by the rule of recognition. A judge who takes the internal point of view (p. 165) towards a rule of recognition that defines her duties necessarily takes the rule as a reason for doing what it demands of her.
However, it is not clear how judges could be motivationally guided by rules that are not addressed to them and hence do not define their legal duties. To be motivationally guided by a rule, on Shapiro's view, is to ‘conform’ to the rule because of its status as a rule. But a judge who evaluates a defendant's conduct under a first-order rule is not conforming to the first-order rule; rather she is conforming to the rule of recognition that requires her to determine whether the defendant's conduct conforms to that first-order rule. In so far as the judge cannot, strictly speaking, conform qua judge to that first-order rule, it is not clear why PDT should be construed as requiring that the judge be motivationally guided by such rules.55
Of course, as Shapiro points out, some first-order norms are addressed to judges (LMG, 30). Consider, again, the principle, made famous in Riggs v. Palmer, that no person should be allowed to profit from her own wrong. By its own terms, the Riggs principle seems to direct judges to take action to prevent a person from profiting from her own wrong and is hence addressed clearly to judges and not to citizens.
But this observation, though correct, cannot vindicate Shapiro's argument against inclusive positivism. What is needed to falsify the Incorporation Thesis is an argument that shows that judges must always be motivationally guided by first-order norms. That some first-order norms are addressed to judges and hence must be capable of motivationally guiding their behaviour does not imply that all first-order norms must be capable of motivationally guiding judicial behaviour. If this is correct, then Shapiro's argument shows, at most, that first-order norms addressed to judges cannot be legally valid in virtue of moral content; such norms are either invalid, valid in virtue of source, or must be construed as being addressed to subjects.56 This implies a conceptual restriction on the content of inclusive rules of recognition, but it does not logically preclude the possibility of moral criteria of validity.
(1) Hart also believes that Austin's theory explains only the existence of first-order rules that require or prohibit certain kinds of behaviour. On Hart's view, Austin overlooks another kind of first-order rule that confers the power to create, modify, and extinguish rights and obligations, like those governing the creation of contracts.
(2) H. L. A. Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon Press, 1994), 92. Hereinafter referred to as CL. Hart makes the distinction in terms of primary and secondary rules but he seems to use the term ‘secondary rules’ in two different ways. First, he uses ‘secondary rules’ to denote ‘power-conferring rules’ that enable individuals to alter existing legal relations; in contrast, ‘primary rules’ are rules that require or prohibit certain behaviours on the part of citizens. On this usage, the rules of contract are secondary rules. Elsewhere he uses ‘secondary rules’ to denote rules about rules. On this usage, the rules of contract are not secondary rules. I find the latter usage more apt and will use the terms ‘first-order’ and ‘meta-’ to capture it.
(3) Raz construes the term ‘authority’ as having moral content. An authority is, on this usage, morally legitimate. See Section 6, below, for a discussion of Raz's views. As I use the term here, ‘authority’ should not be construed as connoting moral legitimacy.
(4) Hart rejects this version of the thesis since he allows for the possibility of moral criteria of validity. Thus, as Coleman points out, ‘the two aspects of the Social Fact Thesis—that law must be identifiable by social facts and that the rule that sets out the criteria of legality is a social rule—are independent of one another’. Jules L. Coleman, ‘Second Thoughts and Other First Impressions’, in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 257–322, 264. Hereinafter referred to as ST.
(5) Hart concedes ‘it is … possible to imagine a society without a legislature, courts, or officials of any kind’ (CL, 91). The problem, however, is that such a system contains exactly the defects that the institution of law is intended to correct. As Hart would put it, such a simple system of rules is too ‘static’ as there is no formal mechanism for changing rules (CL, 92). Likewise, this simple system is ‘inefficient’ because there is no formal mechanism by which social pressure is brought to bear on non-compliance (CL, 93). Thus, Hart would characterize such a system as a primitive or rudimentary system of law.
(6) Jules Coleman, ‘Incorporationism, Conventionality, and the Practical Difference Thesis’, Legal Theory, 4/4 (Dec.1998), 381–426, 383. Hereinafter referred to as ICP.
(7) Austin, then, does not accept the Weak Conventionality Thesis; for a mere convergence of behaviour (i.e. a habit of obedience) is enough, on his view, to support a legal system.
(8) Leslie Green is a notable exception. See e.g. Leslie Green, ‘Positivism and Conventionalism’, Canadian Journal of Law and Jurisprudence, 12/1 (Jan.1999), 35–52.
(9) Andrei Marmor, ‘Legal Conventionalism’, Legal Theory, 4/4 (Dec. 1998), 509–32, 521. Hereinafter referred to as LC.
(10) Jules L. Coleman, The Practice of Principle: In Defence of A Pragmatist Approach to Legal Theory, The Clarendon Lectures in Law (Oxford: Oxford University Press, 2000), 94. Hereinafter referred to as POP.
(11) Coleman describes the structure of such a preference set as follows: ‘Although each person's first preference is that all apply his favored set [of validity criteria], each prefers (second) that all apply the same set—regardless of which one it is—over the (third-ranked) alternative of applying her own first-choice set while others apply their own (which is to say, the alternative of having no legal system at all)’ (POP, 92).
(12) See Scott J. Shapiro, ‘Law, Plans and Practical Reason’, Legal Theory, 8/4 (Dec. 2000), 387. The concept of an SCA owes to Michael E. Bratman. See Bratman, ‘Shared Co-operative Activity’, Philosophical Review, 101/2 (Apr.1992).
(13) Coleman concedes there are conceptually possible legal systems in which the rule of recognition is a constitutive convention but finds this theoretically unhelpful. On his view, the notion of a constitutive convention leaves unexplained why officials would jointly commit to such a rule. In contrast, the notion of a coordinating convention can help to explain such a commitment: in so far as commitment to a shared set of validity criteria is necessary to solve an important coordination problem, officials have a reason to make such a commitment.
(14) eph Raz, The Concept of a Legal System, 2nd edn. (Oxford: Clarendon Press, 1980), 200.
(15) ably, Raz does not share Marmor's scepticism about the possibility of a social convention that gives rise to an obligation. Consider, for example, Raz's views about what he calls the attitude of respect for law: ‘[T]he practical respect which some people have for the law is itself a reason to obey the law. The fact that this respect has no ordinary external foundation is acknowledged by the submission that there is no obligation to respect the law even of a good legal system. Respecting the law in such societies is merely permissible. Yet those who respect the law have a reason to obey, indeed are under an obligation to obey. Their attitude of respect is their reason—the source of their obligation. The claim is not merely that they recognize such an obligation, not merely that they think they are bound by an obligation. It is that they really are under an obligation.’ Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 253. In so far as a social convention is supported by the appropriate attitude of respect, that convention could, on Raz's view, give rise to an obligation.
(16) It can, however, provide a more limited explanation of the normativity of the rule of recognition. For it is clear that the behaviour of one person A can give another person B a reason to act. To the extent that B has a preference that her behaviour conforms to the behaviour of A, A's doing can clearly give rise to a reason in B to also do. Further, to the extent that A is committed to regarding B's behaviour as a standard against which to criticize deviations, B's doing can provide a weightier reason for A to do than it would if A's commitment to doing what B does was merely a preference that A's and B's behaviour converge. Thus, taking the internal point of view towards the behaviour of others can provide a reason to do as the others do.
(17) But note that Coleman has argued Hart never intended his analysis of the internal point of view to explain how social rules give rise to obligations. See ICP, 400.
(18) Solving this problem might ultimately require rejecting Hart's view that a legal system cannot be purely coercive—a move that strikes me as the correct one. It is one thing to claim that legal obligation is not essentially coercive; it is another to say that legal obligation cannot be purely coercive. Hart seems to have overstated the shortcomings in Austin's theory of law. For a discussion of this point, see Kenneth Einar Himma, ‘Law's Claim of Legitimate Authority’, in Jules Coleman (ed.), The Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, forthcoming); and Matthew H. Kramer, ‘Requirements, Reasons, and Raz: Legal Positivism and Legal Duties’, Ethics, 109/1 (Jan. 1999).
(19) Klaus Füßer, ‘Farewell to “Legal Positivism”: The Separation Thesis Unravelling’, in Robert P. George, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), 119–62.
(20) Notice that, thus construed, the Separability Thesis is a straightforward logical consequence of the Weak Conventionality Thesis.
(21) Note that the relevant logical relation differs in each of the components. While the relevant relation in the Necessity Component is the consistency relation, the relevant notion in the Sufficiency Component is the conformity relation. The Sufficiency Component could not use the consistency relation because it would validate inconsistent norms; there are many propositions P such that P and ~P are each consistent with morality. A law that requires drivers to drive on the right side of the road is no less consistent with moral principles than a law that requires drivers to drive on the left side. Likewise, the Necessity Component could not use the conformity relation because it would result in too few norms—at least in modern legal systems. Many laws are intended as solutions to coordination problems and hence do not reproduce the content of some moral norm.
(22) Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1963). Hereinafter referred to as ML.
(23) H. L. A. Hart, ‘Book Review of The Morality of Law’, Harvard Law Review, 78 (1965), 1281, reprinted in H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 361.
(24) Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977). Hereinafter referred to as TRS.
(25) The following discussion owes an obvious debt to Coleman's discussion of the issue in ICP.
(26) David Lyons, ‘Principles, Positivism, and Legal Theory’, Yale Law Journal, 87 (1977), 415, 423–4. See also Jules Coleman, ‘Negative and Positive Positivism’, Journal of Legal Studies, 11 (1982), 139, reprinted in Marshall Cohen, Ronald Dworkin and Contemporary Jurisprudence (Totowa, NJ: Rowman & Allanheld, 1983). Hereinafter referred to as NAPP. Coleman was not the first to articulate the Sufficiency Component as a solution to the Original Problem but is, more than anyone else, responsible for its subsequent development and importance in legal philosophy.
(27) Philip Soper, ‘Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute’, Michigan Law Review, 75 (Jan.1977), 473.
(28) Some inclusive positivists, such as Waluchow and Kramer, endorse only the Necessity Component of the Incorporation Thesis.
(29) Hart, ‘Book Review of The Morality of Law’, 361.
(31) But it is important to note that the Source Thesis does not commit the exclusive positivist to claiming it is never possible for law to incorporate morality. The Source Thesis and the Incorporation Thesis are claims about what can be included in a rule of recognition. The Source Thesis, by its own terms, claims only that the criteria of validity consists entirely of source-based standards relating to the procedural conditions under which law can be promulgated. Thus, while the Source Thesis precludes incorporation of moral content into the rule of recognition, there is nothing in the Source Thesis, by itself, that commits the exclusive positivist to denying that the law can incorporate moral principles as first-order rules.
And some exclusive positivists explicitly allow for the possibility that moral principles can be incorporated into the law as long as they have an authoritative source—and do not function as criteria of validity. As Scott Shapiro, describes the view, ‘[t]he promise-keeping rule, for example, may only become law when some authoritative body duly enacts or practices it; if the promise-keeping rule lacks a direct social pedigree, it may never count as a legal norm’. Scott J. Shapiro, ‘The Difference that Rules Make’, in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 57.
(32) For this reason, exclusive positivism cannot be falsified by the obvious fact that written constitutions often contain clauses that are expressed using moral language.
(33) Many theorists, like Waluchow, accept the Necessity Component because of its descriptive accuracy; the Necessity Component more tightly coheres than other positivist theories with the empirical fact that constitutional provisions frequently include moral language that constrains legislative lawmaking. For these theorists, the Incorporation Thesis enjoys a special epistemic status: in so far as a claim C about legal practice conflicts with the Incorporation Thesis, that constitutes a prima facie reason for rejecting C. Coleman rejects this view: ‘[T]he dispute between exclusive and inclusive legal positivists cannot be resolved on descriptive grounds, for the simple reason that the dispute is not a descriptive one’ (POP, 109). The issue for Coleman is whether there exists a coherent conceptual framework that includes the Incorporation Thesis.
(34) Strictly speaking, Dworkin's criticism here applies to any attempt to explain the legal validity of moral principles in terms of a rule of recognition, including exclusivist attempts to explain the binding authority of such principles in terms of formal promulgation. See Joseph Raz, ‘Legal Principles and the Limits of Law’, Yale Law Journal, 81 (1972), 823. Nevertheless, I include a short discussion of this criticism here because of its historical importance and because the claim that moral principles can be legally valid in virtue of source (as opposed to content) is mildly incorporationist.
(35) Exclusive positivists, of course, deny this possibility, but for reasons that have nothing to do with the intuitions that (1) ‘the existence of a law is one thing, its merit another’ and (2) the notions of law and morality are conceptually distinct, which motivate the Separability Thesis. As we will see in the next section, Raz subscribes to the Source Thesis because he believes the Incorporation Thesis is inconsistent with the nature of authority. Dworkin and Raz each reject inclusive positivism but for different reasons.
(36) Joseph Raz, ‘Authority, Law, and Morality’, The Monist, 68/3 (1985), in Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994). References are to the reprint. Hereinafter identified as ALM.
(37) Brian Leiter, ‘Realism, Positivism, and Conceptual Analysis’, Legal Theory, 4/4 (Dec. 1998), 541.
(38) Leiter, ‘Realism, Positivism, and Conceptual Analysis’, 542.
(39) Wilfrid Waluchow, ‘Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism’, Legal Theory, 6/1 (Mar. 2000), 45–82, at 58.
(40) Joseph Raz, Practical Reasons and Norms (Princeton: Princeton University Press, 1990), 46.
(41) Heidi M. Hurd, ‘Challenging Authority’, Yale Law Journal, 100 (1991), 1611. Hereinafter referred to as CA.
(42) H. L. A. Hart, ‘Commands and Authoritative Legal Reasons’, in Hart, Essays in Bentham (Oxford: Clarendon Press, 1982), 253.
(43) More specifically, it precludes the agent from deciding what to do (and hence from acting) on her judgment of the balance of reasons.
(44) Joseph Raz, ‘Authority and Justification’, Philosophy & Public Affairs, 14/1 (winter 1985), 18; emphasis added.
(45) Joseph Raz, ‘Hart on Moral Rights and Legal Duties’, Oxford Journal of Legal Studies, 4/1 (spring 1984), 131 (emphasis added).
(46) For a contrary view, see William A. Edmundson, ‘Legitimate Authority without Political Obligation’, Law and Philosophy, 17/1 (Jan. 1998), 43–60. On Edmundson's view, to say that an authority A is legitimate over a person P is to say that P has a moral obligation to refrain from interfering with A'sefforts to ‘administer’ her directives.
(47) See Kenneth Einar Himma, ‘Law's Claim of Legitimate Authority’, in Jules Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001) for a discussion of the Authority Thesis.
(48) Philip Soper, ‘Law's Normative Claims’, in Robert P. George, The Autonomy of Law (Oxford: Clarendon Press, 1996), 215–47. Hereinafter referred to as LNC.
(49) Kramer, ‘Requirements, Reasons, and Raz’, 394.
(50) Scott J. Shapiro, ‘On Hart's Way Out’, Legal Theory, 4/4 (Dec. 1998), 469–508, at 490. Hereinafter referred to as HWO.
(51) But notice that the sentence ‘the conceptual function of law is to guide behavior’ is ambiguous between the function of law as an institution (or the function of a legal system) and the function of law considered as an individual norm. The former does not imply a commitment to PDT. See Kenneth Einar Himma, ‘H. L. A. Hart and the Practical Difference Thesis’, Legal Theory, 6/1 (Mar. 2000), 1–43.
(52) See nn. 48–50, above.
(53) Shapiro believes that Hart cannot rethink his theory of peremptory reasons without having to rethink other aspects of his theory. See Scott Shapiro, ‘Law, Morality and the Guidance of Conduct’, Legal Theory, 6/2 (June 2000), 62–3. Hereinafter referred to as LMG. References are to the manuscript.
(54) To see this, note that one could argue that the Razian conception of authority is still inconsistent with the Incorporation Thesis. For under an inclusive rule of recognition, identifying the law would require a person to deliberate on its ‘merits’—though its merits would be defined in terms of an empirical property, namely what people in the culture believe. And this remains inconsistent with the conceptual point of authority, which is to settle issues about what right reason requires.
(55) See Himma, ‘H. L. A. Hart and the Practical Difference Thesis’, 34–9, for a detailed discussion of this line of criticism. Shapiro believes that Hart holds the view that first-order norms motivationally guide behaviour. Thus, for example, Shapiro points out that Hart claims that ‘it is surely evident that for the most part decisions, like the chess-player's moves, are reached either by genuine effort to conform to rules consciously taken as guiding standards of decisions or, if intuitively reached, are justified by rules which the judge was antecedently disposed to observe and whose relevance to the case in hand would generally be acknowledged’ (CL, 141; cited at LMG, 27).
I doubt that Hart's views on the various forms of guidance were sufficiently developed to make these isolated remarks reliable evidence one way or another. Indeed, part of what makes Shapiro's work on the topic so important is that he has formulated distinctions not previously made in the literature. I suspect there is much in Shapiro's work that would have impressed even Hart as pure innovation. In any event, I do not want to make any claims here about what Hart did or did not believe. Rather, I am arguing only that the core of Hart's theory permits him to deny that judges must be, in Shapiro's sense, guided by first-order norms and that he should deny this strong claim.
(56) Thus construed, the Riggs principle would state that it is wrong for a person to profit from her own culpable conduct.