Beyond Inclusive Legal Positivism*JULESL. COLEMANraju_430
359..394Abstract. In this essay, I characterize the original
intervention that became InclusiveLegal Positivism, defendit
against a range of powerful objections,
explainitscontributiontojurisprudence,
anddisplayitslimitationsanditsmodestjurispru-dentialsignicance.
IalsoshowhowinitsoriginalformulationsILP dependsonthree notions
that are either mistaken or inessential to law: the separability
thesis,theruleofrecognition,andtheideaofcriteriaoflegality.Therstisfalseandisin
event inessential to legal positivism. The second is inessential to
legal positivism.The third is likely inessential to law. I then
characterize the central claim of ILP inawaythat reliesonnoneof
these: ILPistheclaimthat necessarilysocial
factsdeterminethedeterminantsoflegalcontent.
IshowthatILPsoconceivedleavesthe central debates in law largely
untouched. I suggest how the most fundamentalof thesethe question
of the normativity of lawat least can be usefullyaddressed. The
essay closes by suggesting that even though one can distinguish
thesocial fromthenormativedimensions of law, atheoryof thenatureof
lawisnecessarily an account of the relationship between the two: It
is a theory either ofthe difference that certain distinctive social
facts make in normative space, or it
isanaccountofthedistinctivenormativedifferencethatlawmakes,
andthesocialandotherfactsthatarenecessarytoexplainthatdifference.
Onecandistinguishbetween but one cannot separate the social from
the normative aspects of legality.1. IntroductionIt is natural
tocharacterizecontemporaryanalyticjurisprudenceas asequence of
distinct but overlapping dialogues between competing camps:1* I
cannot begin to express my gratitude to the organizers of the
conference on my InclusiveLegal Positivism and to the many legal
philosophers who attended. I am deeply honored bythe attentionall
have givenmy work andamprivilegedto have
hadsuchwonderfulinterlocutors over the years. Some started as my
students; a few as my teachers; and othersas my critics. All are my
friends and colleagues; and I am indebted to them all. John
Rawlsonce conded in me that he did not think that he had much
original to say but that he wasuntroubledbythat fact sincehefelt
that originalityinphilosophywasmuchoverrated. Iclaim no originality
for my work. If standing on the shoulders of giants was good enough
forRawlsitsureasheckisgoodenoughforme.Inmycase,Iwobbleontheshouldersofthegiants
of our eld: Herbert Hart, Joseph Raz, and Ronald Dworkin. I
especially want to
thankLesliePopeforherexcellentresearchassistance.1Somemightcallthemdisputesordebates.
Allsuchtermsareaptindifferentways.RatioJuris. Vol. 22No.
3September2009(35994) 2009 The Author. Journal compilation 2009
Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
and350 Main Street, Malden 02148,
USA.Positivistsareindialoguewithnatural lawyers,
realistswithformalists,positivistswithDworkinian/interpretivists,
andinclusivewithexclusivepositivists, andsoon. Thesedialogues
haveoftenservedtoshapethewayinwhichcentral
concernsinjurisprudencesuchastherelationshipbetweenlawandmorality,
thenatureofadjudication,
andconstraintsonthecriteriaoflegalityareformulatedandaddressed.Inmost
cases, a dialogue begins narrowlyfocusedona reasonablywell-dened
point (or two) of contention. In time, the discussion
maturesanddeepens, newissuesemerge,
connectionswithpreviousdisputesarerevealed, and interest in
well-trodden, even seemingly moribund concernsarerekindledas
theyarerecast inadifferent light andseeninanewcontext. Almost
seamlessly, afamiliardialoguemorphsintoanewone.New players are
introduced, fresh ideas emerge, and on occasion even themost
fundamental projectsof jurisprudenceandthemethodsof
inquiryintothemarereassessed;
inthiswaytheelditselfisreinvigorated.It wouldnot be unfair to
characterize the original dispute betweenpositivists and Dworkin as
a powerful but nevertheless narrowly focusedintervention in the
on-going dispute between positivists and naturallawyers about
therelationshipbetweenlawandmorality.2Inrelativelyshort orderwhat
wasonceaninterventioninonedebateturnedintoabroaderdisputeaboutthemethodologyofjurisprudence,
thatiswhetheran inquiry into the nature of law is a project in
political philosophy, socialscience, conceptual analysis, or
something else altogether.3At roughly
thesametimetheDworkin/positivist
debateshiftedfocusfromreconceptu-alizingtherelationshipbetweenlawandmoralitytoexploringthemostpersuasive
way of accommodating the nature and scope of legal disagree-ment.
This new focus prompted an inquiry into whether legal
positivismsalleged commitment to the conventionality of lawcould
explain thepossibilityofdisagreementaboutthecontentoftheconvention,
inotherwords, whether positivism could explain disagreement about
the criteria oflegality or the grounds of law.4What was once a
dispute about
constraintsonthecriteriaoflegalitybecameadebateaboutthepossibilityoflawinthefaceofdisagreementaboutwhatthosecriteriaare.Today
the debate has shifted once again. The urgent question is
whetherthe notion of legality presupposes the existence of criteria
of legality at all2Characterized in this way, it is natural to
align Dworkin with the natural law tradition,
andmanycommentatorshaveneverseenhiminanyotherway.
Inmyviewsuchacharacter-izationistoocrude.3The person most
responsible in my view for the methodological turn in jurisprudence
andwhose work focused attention most clearly on these issues is
Stephen Perry, whose forays
intothiseldhavenotreceivedalltheattentiontheydeserve.
SeeespeciallyPerry2001, 311.4See, e.g., Coleman2001b; 2001a;
Shapiro2007; see alsoDworkin1986(discussingthesemantic sting).
Dworkin also discusses these issues in his review of The Practice
of Principle,whichdisplays, Ifear,
hiscapacityforsustainedinsultoverhismoreadmirableabilityforsustainedargumentation(Dworkin2002).360
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3and whether the projects of jurisprudence must focus on
determining whatthose criteria are. In a way the question is
whether the distinction betweenthe legal and the non-legal is a
matter of criteria at all. As a general
matterpositivistsbelieveitisandDworkiniansdonot.Hart and those
inuenced by himconsider part of the project ofjurisprudence to be
determining the criteria that set law apart from othermodes of
regulatinghumanaffairs, for example, moral rules, informalnorms,
sanctioningandpricingsystems. InHartsjurisprudence, theruleof
recognition plays the role of distinguishing the legal from the
non-legal.5More generally, Hartian positivists, but not just
Hartian positivists and notjust positivistseither,
approachjurisprudencefromthepoint of viewofcriteria:
criteriafordistinguishinglegal fromothernorms, legal
systemsfromoneanother, andsoon. Theproject begins
withidentifyingwhatactivities and which institutions count as legal
and therefore whose actionscan contribute to law. Then the question
becomes which of these
activitiescontributetolawandhowtheycometogethertomakelaw.
Lawistheoutcomeoftheprocess;
andthefocusofjurisprudenceinthemainistoidentifythecontributorsandtheircontributionstoit.Dworkins
earliest interventions respondedtosimilar concerns. Eventhough in
The Model of Rules (MOR) he objects to the positivists claim
thatonly rules can constitute the stuff of law as well as the
related claim
thataruleofrecognitionorsomethingverymuchlikeit(aMasterRule)isnecessarytodistinguishrulesthatarelegalfromthosewhicharenot,
hedoes not resist thebasic presuppositionthat thejurisprudential
projectconsists in identifying which norms can count as law and
which activitiesas legal (Dworkin 1978, 1446). He does not reject
the project the
positivistsareengagedin,onlytheirexecutionofit.Hisviewisthatprinciplesandpolicies
can also be binding sources of law; and their status as law does
notdependontheexistenceofaMasterRulethatmarkstheborderbetweenwhatislawandwhatisnot.Dworkinenteredthe
debate withmanyof its terms alreadysettled.When MOR was written, to
theorize about the nature of law was to focuson criteria of
legality. Because that was the accepted framework, it cannotcome as
a surprise that Dworkin raised his objections to positivism
withinthatframework. Indoingso,
heappearedtoacceptthestandardwayofthinkingabouttheprojectsofjurisprudence.For
all of itsimportance, thepublicationof MORisnot awatershedmoment
injurisprudencebecauseit is writtenwithinaframeworkforapproaching
jurisprudence that Dworkin later rejected. And it is therejectionof
that frameworkthat mayconstituteDworkinsmost
lastingcontributiontojurisprudence.5In playing this role, the rule
of recognition also distinguishes one legal system from another.361
Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3I have come to believe that Dworkins main point has always
been thatlaw is not best understood in terms of criteria at all. In
the rst place eventhoughhe criticizedpositivisms particular mode of
distinguishingthelegal fromthenon-legal
(whichheidentiedperhapstoonarrowlywithHarts rule of recognition) he
never himself offered alternative criteria. Thismay have been
because he had no well developed view of what the criteriaof law
are; more likely, it is because he never believed that
distinguishinglawfromnon-laworlegal
systemsfromoneanotherrequirescriteriafordistinguishingthat
whichbelongstothelegal domainfromthat whichdoesnot.The rst real
hint that Dworkin did not accept the conventional frame-work comes
as early as the essay, Hard Cases (Dworkin 1975) in which
lawisidentiedwiththesetofcoercivelyenforceablepoliticalrightsandnotwith
the actions or institutions that give rise to them. The same
resistanceto the conventional framework is displayed in Laws Empire
(Dworkin 1986)where Dworkin (abandoning the view of Hard Cases that
law is a subset ofpolitical rights) identies lawwiththat set of
political principles thatprovidesthebest interpretationof arelevant
set of past political acts(of aparticular jurisdiction). Theshift
fromlaw-as-enforceable-politicalrights to law-as-political
principles is unexplained, but the difference isless important than
what remains unchanged. In neither work is the
focusofjurisprudenceonidentifyingmembershipconditions.6Tofaulthimforhis
failure to adopt this focus would be to impose a positivistic
conceptionof jurisprudence on him; and that, if I have interpreted
Dworkin correctly,ispreciselywhathemeanstoresist.Scott
Shapirocapturesthisdistinctionbetweenpositivists(andothers)and
Dworkinians in terms of an emphasis on inputs and outputs.7Asheputs
it: Whilelegal positivistsindeedmost theoristsseejurispru-dence as
aninquiryintothe inputs of law, that is, as
identifyingandtheorizingabout whichinstitutions, acts,
andactivities aredistinctivelylegal and why, Dworkinians see
jurisprudence as focused on characterizinglaw as a normatively
signicant output, the inputs of which are
determinedinsomeotherway(e.g., bysocialscience), ifatall.I
thinkShapiroiscorrect. Most legal theoristspositivistsincludedadopt
this conventional framework. In that framework, the lawof
a6InHardCasesDworkindoesnot treat theburdenof
jurisprudencetobeidentifyingthecriteriafordistinguishingwhichnormsgiverisetolegal
rightsandinLawsEmpireheabjures the requirement of specifying
criteria for distinguishing those past political acts
whoseinterpretation is required to determine the law from those
that do not call for interpretation.SeeDworkin1986;
1975.7Shapiroexpressedthedifferencethis wayinconversationandit has
stimulatedmetoreconceptualizehowoneshoulddistinguishthepositivist
approachtojurisprudencefromthe Dworkinian. I think Shapiro is
basically correct, but I think that another way of
puttingthedifferenceis interms of thecentralityof
criteriatojurisprudence. Thetwoways ofdistinguishing Dworkinians
from positivists come together in some of the remarks that
follow.362 Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3communityis built upfromsome materials andnot fromothers.
Theproject of jurisprudence in the rst instance is to identify what
stuff countsandwhy;
andinthesecondinstancetoexplainthedistinctivewaysinwhichlawisconstructedfromorconstitutedbytherelevantmaterialsrules,
judicial decisions, and so on. The other important question
ofjurisprudence is to determine what difference law, so conceived,
makes oris capable of making in normative space. Thus, there is a
naturaldichotomy between the institutional/social andnormative
concerns ofjurisprudence. We will return to this issue later, but
for our currentpurposes,
theimportantpointisthatformostadoptingtheconventionalframework, the
project cannot get underway without criteria for member-ship, that
is, criteria that acts must satisfy in order to count as
contributorstolegalcontent.ItmaywellbetruethatatthebeginningDworkindidnotcontestthisframework
and the approach to jurisprudence it embodies and was
insteadcontent to raise signicant doubts about the capacity of
legal positivism toexecute the project ina waythat wouldprove
illuminatingabout thenature of law and its place in our lives.
Still, there is little question that atbottom Dworkin rejects this
entire picture and that his greatest legacy willhave been that he
provided us with another avenue or approach toconsider. Roughly, in
that approach we take law as something that
makesanormativedifferenceandthersttaskistocharacterizethatdifference.IntheworkofMarkGreenberg,
lawisunderstoodaschangingwhathereferstoasthemoral
prole(Greenberg2007). Insomeof
Dworkinswritings,thelawcreatesasetofrightsthatarecoercivelyenforceable.Inother
parts of his work, law answers the question as to when the
collectiveuseofforceisjustied.Once the normative difference that
lawmakes is characterized, thetheorist works backwards to identify
the grounds of the difference, that is,what acts by what processes
contribute to the distinct normative differencethe law makes. The
sociality and institutionality of law is characterized asthat which
is required in order to explain the normative difference that
lawmakes.8In order to pursue that project, we do not have to
presuppose
theexistenceofcriteriaoflegalityorcriteriaforthedomainofthelegal.Arguably,
adialoguethat
beganlifeoverthirtyyearsagoasaninter-ventioninthelong-standingdisputeabouttherelationshipbetweenlaw8InconversationswithNicosStavropouloswefoundourselvesagreeingonthefollowingwayofdistinguishingpositivistsfromDworkin.
Positivistswant toidentifythesocial andinstitutional
stuffoflawandgetthatright.
Thentheytrytogureouthowthatstuffcanaccountforthedifferencelawmakes.
Dworkinhasaviewaboutthedifferencelawmakes,andtheinstitutionalityandsocialityof
lawthat isapt forlawisthat whichisneededtoexplainthedifferencethat
lawmakes. I thinkthat isright. I thinkthisisanotherwayofputting
Shapiros point about inputs and outputs. I also think, as I argue
in the paper, the
keyisthedifferencebetweenpositivistsandDworkiniansonthecentralityofcriteria.363
Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3andmoralityisnowadisputeabout howtounderstandtheproject
ofjurisprudenceitself. Thedialoguebetweenlegal
positivistsandDworkinhasenduredforaslongasithasbecauseeachformulationofthedebatestimulatedfurtherreectionsandeachreectioninvitedfurtherreformu-lationsofthecentralissuesofjurisprudence.9AndsoIcometothebodyofthispaperinwhichIwillreectonthecontributionofInclusiveLegalPositivism(hereafter,
ILP).10Tobehonest,evencapitalizingthe name of the viewwithwhichI
have beenmostclosely associated in jurisprudence11suggests a kind
of signicance of thethesis that I am unwilling to claim for it. I
do not mean to trivialize ILP asan intervention or as a
contribution to jurisprudence either. In what followsI hope to do
justice to both of these sentiments by explaining the view asI
understand it, exploring its contributions to jurisprudence and
identifyingsome of its limitations. I then turn my attention to
identifying some of thelarger issues injurisprudencethat areleft
untouchedbythedialoguesbetweenILPandExclusiveLegal
Positivism(hereafterELP) ontheonehand and that between ILP and
Dworkinian interpretivists on the otherperhaps the most signicant
of which I have already touched upon
above.Theremarksthatfollowfallintotwogeneralcategories:
onefocusingonILPandtheotherfocusingonthecentral issuesof
jurisprudenceorat9Manyof
thedialoguesinjurisprudenceinwhichwetodayparticipatereachedmaturitylong
before we arrived on the scene. Being able to participate in
debates of such duration andimportanceboththeoretical
andpracticalis anhonor, a privilege, anda burden. Ourgreatest
responsibilityis tokeepthe dialogues alive, vibrant, andmeaningful
bygivingexpression to the centrality of law, its awesome powers,
its capacity for evil as well as good,for oppression as well as
liberation. The burden is to make our discussions ever more
precise,clear, anddeepwhileavoidingtheriskof
renderingthemaridandunconnectedtotheexperiences of all usall around
the worldof living under law, and the experiences as wellof those
who live without the protection of law. The second burden is more
personal to
eachofusandthatistodetermineinwhatwayseachofuscanmakeacontribution,
howeversmall, to debates and dialogues so mature that the great
contributors to them dwarf us. If wehave made a small contribution,
helped to focus attention on an abiding concern ofjurisprudence,
moved the discussion along, or broadened or deepened it, then we
should beboth proud and grateful. We should be proud of our role
and grateful for the opportunity thiseld and this community of
scholars in it has provided us. Nothing makes me prouder
thantohavebeenafaithfulintellectualservanttotheeldofjurisprudenceandambassadorforit.ItisnotformetojudgewhetherIhavecontributedanythingofsubstanceenduringoreetingto
the eld beyond doing my best to keep it alive and meaningful and to
instill inmy students a love and respect for it. That is both the
least I could have done and the mostI could have hoped to
accomplish. The key is to see oneself and ones interventions as
partof a dialogue with others, the aim of which is to call
attention to various concerns about lawand its role in our social,
political, moral, and economic lives together. The ultimate
purposeofthesedialoguesistodeepenourunderstandingofourselvesandourplaceinthesocialworld.10InclusiveLegal
Positivismis, I believe, WilfridWaluchowsnamefor thisposition,
notmine. See, e.g., Waluchow1994. The position is also sometimes
characterized as SoftPositivism.I muchprefer
beingreferredtoasinclusivetobeingreferredtoassoft,though there is
no denying that some consider those of us who are inclusive to be
soft as
insoftheaded,notsofthearted.11IngeneralIamprobablymorecloselyassociatedwithcorrectivejusticeintortlaw.364
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No.
3leastonsomeofthemthatareleftuntouchedbythedistinctivecontri-bution
that ILP has made. All of the arguments that follow are
necessarilycompressed and somewhat sketchy as I could not hope to
do full justice toeither project, let alone toboth, inthe context
of these brief remarks.WhereverpossibleI
havetriedtomaintainaconversational toneinthewriting in order to
reect the occasion. I have sought to maintain the
senseofapubliclectureinwhichIhavebeenaskedtoreectonthecontribu-tions
ILP has made to jurisprudence and in doing so respond to those
whohave been asked the same question, some of whom are inclined to
the viewthat ILP represents a great achievement in jurisprudence,
others of whomareconvincedit isof nosignicanceat all,
andothersstill
whoseownaccountingreckonsbothitsvirtuesandlimitations.
Withoutgivingawaytoo much of what is to follow, I fall squarely in
the latter group, though Imay be more skeptical of ILPs overall
importance than are others. I wouldlike to believe my skepticism is
owed to modesty, but I am inclined to
thinkitisanunavoidableconsequenceofscholarlyintegrity.
Ifsothatisgoodenoughformeinfact, itisbetter.122. Inclusive Legal
Positivism: The What and Why of ItILP began life as an intervention
in the Hart-Dworkin debate, in particularas a response to Dworkins
objections in The Model of Rules (Dworkin 1978)(hereafter, MOR).
InMORDworkincharacterizesHartspositivism(andpositivism more
generally) in terms of four basic tenetsall of which
willbefamiliartomostreadersofthisjournal:1) Legalnormsarerules.2)
Legalrulesaredistinguishedfromotherrulesbytheirbeingpickedout
assuchbyaruleof recognition(ROR), whichDworkincallsaMasterRule.12I
amhonoredbytheparticipationof somanydistinguishedlegal philosophers
intheconference on my contributions to jurisprudence, many of whom
I know well and others ofwhom I had not met before and all of whom
I greatly admire. I am especially grateful to theorganizers of the
conference and to the journal, Ratio Juris, for publishing the
proceedings.
Ihadgivenalotofthoughttotheformmyresponsetotheessaysshouldtake.
Itbecamecleartomeearlyonthat thiswasnot
theoccasiontorespondindividuallytoeachpiece,especially given how
diverse the contributions are. I could not have done justice to
each andevery essay in the context of a coherent and readable
essay, let alone one that sought to makea contribution of its own.
In the end, I decided that the best way to honor the
contributionsof others is to do what I could do to keep the
dialogues in which we all participate alive andwell. Accordingly,
inthisessay, IhavechosentoreectonwhatItakethecontributionsofILP to
be and to see if I can take some preliminary steps in moving the
debates surroundingILP forward. In future essays and in my next
book I hope to have occasion to respond moredirectlytotheparticular
pointsthat variousof thecontributorshavemadebothfor andagainst my
views. For now, I thought the best way to keep the wonderful
collective spirit ofthe conference alive was to try my hand at what
we all hope in our work to accomplish, thatis,
makingsomecontributionstotheeldwehopeourworkhonors.365 Beyond
Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 33) Thereisnonecessaryconnectionbetweenlawandmorality. I
andothershavecometocallthistheSeparabilityThesis(ST).4)
Thediscretionthesis(DT).BeginningwithdoubtsaboutDT,
theargumentofMORseekstounder-mine all four of these tenets. DT
relies on the idea that in hard casesthosein which law runs out or
in which there are gaps in the lawjudges mustappealtonon-legal,
thatis, optionalordiscretionary,
standards.Manyofthestandardsjudgesapplyinhardcasesaremoralprinciples(or
social policies). Dworkin notes that judges do not treat such
standardsas optional for themandhetakes
therebenoreasonwhyweshoulddiscredit this phenomenological evidence.
The plausible inference to drawtherefore is that at least
inhardcases moral principles canbe legallybinding on officials. If
they are legally binding then they are part of the lawof
therelevant jurisdiction. If thisargument issound, several
problemsemergeforHartspositivism.Principlesarenotrules.
Ifprinciplesareorcanbebindinglaw, thenitcannot be true that all
laws are rules. In that case, (1), the model of rulesfails. If such
norms are law, their status as such depends on their
content,thatis,onthefactthattheyexpressademandordimensionofjusticeorfairness.
Their legality does not depend on their being identied as such
byaruleofrecognition. Thismeansthat(2), theruleofrecognition,
failsaswell. Moreover, ifmoral principlesareorcanbelegal norms,
thentherecannot be the kind of separation of law and morality that
the separabilitythesis envisions. Inthat case, (3),
theseparabilitythesis, fails. If moralprinciples can be binding on
judges and not optional for them, thissuggests that where
positivists see discretion, the better view is that thereis binding
law. Thus, (4), the discretion thesis cannot be sustained. In
short,if we accept the phenomenological evidence as decisive, then
all four tenetsof legal positivismmust be abandoned. This leaves
legal positivismwithout, sotospeak, alegtostandon.Legal positivists
have pursued three lines of response to these objections.The rst
andleast interestingresists the pull of the
phenomenologicalevidence. The idea is that, given the nature of her
role, a judge is
unlikelytotreatthegroundsofherdecisionasoptionalratherthanasbinding.Itfollows
that the fact that judges write as if the norms to which they
appealarebindingandnot optional doesnot
helpusdecidewhethertheyare.That will dependonthe best theory of
what lawis andnot
onthesupercialevidenceprovidedbyjudicialopinions.The other two
lines of response ultimately separate legal positivism intowhat we
now think of as ILP and ELP. Common to both is the insightfuland
altogether persuasive distinction drawn by Joseph Raz between
stan-dards that are binding on judges and those that are binding in
virtue of
theirbeingpartofthelawofthejudgesjurisdiction(Raz1970,296).Forexample,366
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3in a conict of law case, the law of a foreign jurisdiction, F,
may apply andbe binding on a judge in jurisdiction, H, but that
does not render the lawof F part of the law of H. In saying that F
is an independent legal system,part of what we have in mind is that
it falls to those legal agentsauthorized to act in F to make and
change its law and that no one in H hasthe authority to do so. Raz
is right that one cannot infer that moralprinciples are law from
the fact that they are binding on legal officials. Onthe other
hand, one cannot conclude that moral norms are not legal
normseither. Razsdistinctiondoesnot
settlethematterofwhethersuchprin-ciplesarepart of thelaw, andit
isinrespondingtothisquestionthatpositivistshavesplitwithoneanother.Many
commentators identify the beginning of ILP with my
essay,NegativeandPositivePositivism.
Thegistoftheargumentinthatessayisthat one can accept all of
Dworkins presuppositions about the legality ofmoral principles and
yet resist his conclusion that legal positivism must
beabandoned(Coleman1982, 139). Before Negative andPositive
Positivism,somelegal positivistslikeDavidLyonsandRolf
SartoriusrespondedtoDworkins objections by noting that positivism
has no problem with moralprinciples countingas lawprovidedtheir
status as lawdepends oncertaininstitutional facts about them and
not on their content: That is, not on the
factthattheyexpressrequirementsofmorality.13This line of response
is not persuasive, nor is it adequate to meetDworkinschallenge,
whichisdesignedtoshowthat somemoral
prin-ciplesarelawinvirtueoftheircontentormoralmerits.
Itookmyselftobe addressing more directly and persuasively Dworkins
more worrisomeobjection in Negative and Positive Positivism. Using
Harts notion of a rule ofrecognition, we might simplysaythat moral
principles canbe legallybinding in a jurisdiction if there is a
clause in the rule of recognition to thateffect. Such a clause
might make institutional features or substantivefeatures of moral
principles decisive. What matters is not the nature of
thenormwhoselegalityisinquestion, beit moral orotherwise,
norwhichproperties of the normsinstitutional, social or
substantivegure indeterminingitslegality,
butthecontentoftheruleofrecognition.Arule of recognitionexists
whenthe relevant officials
applycertainstandardsforassessingthelegalityofconductandadoptacriticalreec-tive
attitudewhat Hart referredtoas the internal point of
viewtowardstheirdoingso. If therelevant officialstreat
aclausespecifyingcertain conditions of substantive morality as
conditions of legality as part13Positivismhasnoproblemwithmoral
principlesbeinglawif theyarelawinvirtueofsomething other than their
moral content. Presumably, the thought is that it would violatethe
ST if the legality of a norm depended on its merits because this
understanding of
legalitywouldthreatentoerasethedistinctionbetweenwhatthelawisandwhatitoughttobe,
adistinction that is, some have thought, the very heart of legal
positivism. Lyons 1977, 415, 426(reviewingTakingRightsSeriously);
Sartorius1971, 1534.367 Beyond Inclusive Legal Positivism2009The
Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris,
Vol. 22, No. 3of the norm they apply in assessing conduct, then it
is plausible that sucha clause is part of the relevant rule of
recognition. If so, thenmoralprinciples arelawof therelevant
jurisdiction; andtheir status as suchdepends on their content only
insofar as the rule of recognition makes
thecontentofsuchnormsaconditionoftheirlegality.143. Inclusive Legal
Positivism: The Jurisprudential Value of ItI believed then and
continue to believe that the basic argument of
NegativeandPositivePositivismisdecisiveagainstDworkinsobjectionstoHartinMOR.
Ontheotherhand, I donot thinkthat theultimatevalueof
myinterventionhasmuchtodowiththeroleitplayedinfendingoffwhatsome
took to be devastating objections to legal positivism. Quite
thecontrary. I view that contribution as being of real, but not of
lasting, value.To my mind the primary value of ILP is the role it
played in creating andsustaining a series of discussions that
helpedto focus attention onseveral issues of more fundamental
importance than the concerns ILP wasitselfdesignedtoaddress.
Theseincludeespecially:1) Therelationshipbetweenauthorityandlaw.2)
Therelationshipbetweencoercionandlegality.3)
Thenatureandscopeofmeaningfuldisagreementinlaw,
especiallydisagreementaboutthecriteriaoflegality.4)
Whetherthedomainoflegalitypresupposescriteriafordistinguish-ingthelegalfromthenon-legal?5)
ThemethodologyappropriatetoJurisprudence.6) The difference between
determining what the constituent elements oflaware andwhat
judgments we canmake about
lawandwhatimpactlawmakesinnormativespace.Someoftheseconcernsarefamiliarandthereisnoneedtoelaborateonthem.
The way I have expressed others requires considerably more
elabo-rationandthecontributionILPmakestothemislessimmediatelyclear.I
donot suggest that theseissueswouldnot haveemergedbut
fortheintroduction of ILP; that would be far too strong a claim to
make. My viewis therather different onethat theintroductionof
ILPandsubsequentdiscussions of its merits havebeenpart of
theprocess of drawingtheattention of jurisprudence scholars to
these (more pressing and fundamen-tal) issues. Tome, it
isinthiscapacitythat ILPhasestablisheditsreal14The key to my
intervention was not challenging the most contestable premise in
Dworkinsargument. Incontrast toother
positivist-inspiredresponsestoDworkinsobjections, mineallowedthat
the moral content of the principles couldbe part of the grounds of
theirconstitutinglaw.368 Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No.
3legacy.Forthatreason,butnotjustforthatreason,Iwanttopresentmysense
of howILPhelpedtoshape these current debates
andtodrawattentiontothoseissues,
whichareleftuntouchedbythetruthorfalsityofthecentralclaimsthatILPmakes.4.
Law and AuthorityThere were two different kinds of objections
raisedto my claimthatmorality could be a condition of legality. One
set of objections argued that,properly understood, legal
positivismitself imposes constraints on theconditions of legality
and that those conditions preclude the ILP solution.Other
objections to my view were designed to show that the nature of
laworfeaturesofourconceptofitprecludetheILPsolution.Themostfamiliarobjectionoftherstsortreliesontheclaimthatforpositivism
law is a matter of hard facts. I never understood the distinc-tion
between a hard and a soft fact (other than epistemically as
expressingdegrees of condence one could have in putative facts),
but I think we canadd some clarity to the discussion by
substituting social facts for hardfacts.Theclaimthenis that legal
positivismis committedtothelawconsisting only of (or in) social
facts. The contrast is between social andnormativefacts.
Theobjectionthenisthat legal
positivismrequiresthatlawbeamatterofsocialfacts(andnotnormativefactsoracombinationof
social andnormativefacts). SinceILPallowsthat moral
factscanbelegalfactsorcriteriaoflegality,
itviolatesthehardfactsorsocialfactsrequirement.15There are many
reasons not to be persuaded by this objection but the
realproblemisthatthereisnothinginlegal
positivismthatimpliesthatlegalfacts must be social facts. There is
an argument for the claim that legal factsmust be social facts, but
it does not proceed from claims about the
natureofpositivismbutfromaclaimaboutthecontentoftheconceptoflaw(Raz1996;
1985). This is Razs argument from authority for the Sources
Thesis:1) Lawnecessarilyclaimstobealegitimateauthority.2) The claim
to being a legitimate authority is not incoherent, but it
canbefalse.3) Becauseitisnotincoherentitcannotbenecessarilyfalse.4)
Therefore, lawsclaimcouldbetrueevenifitisalwaysfalse.5) Thus law
must be the sort of thing that the claim that it is a
legitimateauthoritycouldbetrueof.6) Were the content or identity of
law to depend on moral facts, its
claimtoauthoritywouldbenecessarilyfalse.15I imagine that is why
some refer to it as soft positivism and why others resist calling
itpositivism at all. I cant say I am moved by these concerns or
drawn to these characterizations.369 Beyond Inclusive Legal
Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 37) Therefore,
theidentityandcontentoflawcannotdependonmoralfacts.8) Therefore,
theidentityandcontent of lawmust dependonsocialfacts.9) Therefore,
alllegalfactsmustbesocialfacts.Imaynothaveputtheargumentasotherswouldhave,
buteveryoneinjurisprudence is familiar with it in one form or
other. This is the argumentfrom authority the conclusion of which
is the Sources thesis: The claim
thattheidentityandcontentoflawmustbedeterminedbysocialfacts.Oneimportant
rolethat theargument fromauthorityplays is that itcompletes Razs
response toDworkins initial objections
topositivism.Razsresponsehastwoparts:(a) Moral principles can be
legally binding without being part of the
lawofthejurisdictionsinwhichtheybind.(b) Moral principles can be
legally binding but they cannot be part of
thelawofthejurisdictionsinwhichtheybind.All positivists accept (a).
Indeed, no jurisprudential theory would serve itscause well by
denying (a). For Raz, the argument from authority entails
theSourcesthesiswhichinturnentails(b). If correct (b)
underminescom-pletelytheargument of MOR. (b) denesELP. If correct
(b)
alsounder-minesILP.Mostcommentatorsinterprettheargumentfromauthorityasauthoriz-ing
a characterization of legal positivism that contrasts with ILP.
This is amistake. Theargument fromauthorityproceedsfromaclaimabout
theconcept of law, and if sound, it establishes a claim about the
nature of law,andnotaclaimaboutthenatureoflegalpositivism.
Theargumentfromauthorityisdesignedneithertodefendnortodenepositivism,
but toreveal something true and important about law. If anything,
it entails thatlaw must be as legal positivists (independently) say
it is. Its conclusion isnot that ILPis aninadequateversionof legal
positivism. If sound,
itsconclusionisthatILPisaninadequatetheoryoflaw.Given its
importance, it is no surprise that the argument from
authorityhasbeenthefocusofagreatdeal ofcritical discussion.
Ihavenotbeenpersuaded by the argument from authority, but that can
hardly come as acomplete shock since, if sound, it would have put
me out of business. Myskepticism has two sources, one pertaining to
the arguments validity, theothertoitssoundness.The argument from
authority relies on establishing a subsidiary
conclu-siontotheeffectthatifonehastoappealtomoralprinciplesorfactsinordertodeterminetheidentityorcontentoflaw,
thenonevitiateslawsclaimtoauthority. Ifeveryefforttoidentifyalegal
directiverequiresan370 Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3appeal to moral facts or principles, every legal directives
claim to being anauthoritative directive is rendered necessarily
false. That in turn would beincompatible with the seemingly
harmless requirement that even if claimsto authority are invariably
false, they cannot be necessarily false. And thatwould be a
problem. The argument for the subsidiary conclusion
proceedsroughlyasfollows.A person asks herself, What ought I do?
The answer depends on whatthe balance of reasons requires.
Individuals can often adequately assess thebalanceof reasons.
Whentheyarenot suretheycanseektheadviceorguidanceofothers.
Theycanalsosubstituteanauthoritysjudgmentfortheir own. It is
rational to take that tack only if one has sufficient
groundsforbelievingthatonewilldobetterincomplyingwithwhatthebalanceof
reasons requires by acting on the authoritative directive than one
will doby acting on ones own assessment of what reason demands. It
is naturalthen to dene an authority as legitimate (for particular
persons over somedomain of activity) if and only if those to whom
the authoritative directivesapplywill better complywiththedemands
of reasonbyactingonitsdirectives than by acting on their own
assessment of the balance of reasons.In the typical case the
authority and the agent are confronting the
samesetofreasonstryingtodeterminewhatthosereasonsdemand.Thesearecommonlyreferredtoas
the dependentreasons. Since these reasonsdetermine what one ought
to do, it is natural to think of them as moralreasons.
Whenoneaccepts anauthority, onesubstitutes theauthoritysjudgment of
what these reasons require for ones own assessment.However, if an
agent addressed by an authoritative directive must appealto the set
of dependent reasons in order to determine what the directive
isorwhatitrequires, hetherebyunderminesitsauthority.
Thedirectiveisnottherebycapableofmediatingbetweentheagentandthereasonsthatapply
to him. Determining what the directive is and what it requires
turnsout torequirehimtoengageintheverybalancingof reasonthat
theauthoritativedirectivewastodoinstead.
Inorderforthelawsclaimtoauthority to be coherent, the directives
and their content must be accessibleto agents by considerations
other than the set of dependent, that is, moralreasons.
Thatcannotbethecaseifmoralfacts(reasonsorprinciples)areconditions
of legality. Thus, thepossibilityof legitimatelegal
authorityprecludes the possibility that moral principles are legal
norms. Moregenerally, it precludesthepossibilityofmoral
factscontributingtolegalcontent.Evenif sound, theargument proves
less thanadvertised. At most
itshowsthatthepossibilityoflegitimatelegal
authorityimpliesthatthosegovernedbyauthoritativedirectives cannot
appeal tothose moral prin-ciples onwhichthe authoritative
directives rely. It does not precludeappealingtoothermoral
principlesorfactsinordertodeterminewhichnormsarepartofajurisdictionslaw.
Theargumentfromauthoritydoes371 Beyond Inclusive Legal
Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3not therefore preclude morality from being a condition of
legality nor
doesitprecludemoralprinciplesfromconstitutinglegalnorms.I have also
urged the distinction between the determinants of
legalidentityorcontentandthevariousmeansofdetermininglegalidentityorcontent.
The argument from authority uses the latter notion in its
premisesbut draws conclusions about the former. If sound, the
argument fromauthority implies that one cannot appeal to the
dependent reasons in orderto identify or determine the law or what
it requires. It does not establish thatdependent reasons (moral
facts) cannot be among the determinants of legalcontent.
TheargumentfromauthoritydoesnotundermineILP.Moreover, it is not
clear that the claim to being a legitimate authority isa feature of
our concept of law and thus a necessary truth. It is even lessclear
that suchaclaimis distinctiveof law; andthereis
noreasontosupposethatitisuniquetolaw. Moreimportantly,
itisnotobviousthatthe claim to being a legitimate authority could
not be necessarily false. Tobesure,
theclaimisnotincoherentandthusitisnotnecessarilyfalseinvirtueofitbeingincoherent.
Thoughcoherent, theclaimcouldneverthe-less be necessarily false, as
it would be, for example, were anarchism
true.Thepossibilityofanarchismsbeingtrueimpliesthattheclaimtolegiti-mateauthoritycouldbenecessarilyfalsesincetheconceptofanarchisminvolvestherejectionofthepossibilityoflegitimateauthority.Finally,
the argument from authority rests on a particular conception
ofauthority, andnot ontheconcept of authorityitself. Razclaimsthat
hisservice conception of the function of authorities (Raz 1985, 21)
elucidatesour ordinary notion of authority, but I am not so sure.
For Raz, authorityis a relationship between reasons and persons.
Because Raz views
authori-tiesasmediatingbetweenpersonsandthereasonsthatapplytothem,
itshould come as no surprise that he regards the legitimacy of
authority asdeterminedbytheserviceconception.I worry that the
service conception does not capture the ordinary notionof
authority, whichtomymindis arelationshipprimarilybetweenoramong
persons (and institutions and persons) and not a
relationshipbetweenreasonsandpersons. Theclaimtoauthorityis, I
believe, tobeunderstood in terms of a relationship of standing. One
who has authoritystands in a particular relationship, not to
reason, but to other persons. Tohaveauthorityistohavestanding. That
standingisconstitutedbydis-tinctive powers, depending in part on
the kind of standing it is. In the caseof political authority, it
isstandingtoissuedirectivesthat changewhatthoseover
whichonehasauthorityhavereasontodo. Thisisall veryrough of course
since I am not here offering a full account of the nature
andcontent of the powers that partially constitute the notion of
politicalauthority. I aminsteadsimplyentertainingtheideathat
authorityrela-tionships arebetweenpersons andinvolvethenotionof
standingand,accordingly,
maynotberelationshipsbetweenpersonsandreasons.372 Jules L.
Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3My aimis not to establish that Raz is wrong about the nature
ofauthority. Rather, mypoint is more modest. I meantoshowthat
theargument from authority rests on a distinctive conception of
authority thatmay well not be our ordinary one. I am inclined,
moreover, to read Raz asoffering a revisionist conception of
authority. Once we understand that
theclaimtoauthorityisgroundedinserviceortheinstrumental
efficacyofdirectives, we will abandon (or we should abandon) our
ordinary
concep-tionofauthorityasinvolvingtheideathatauthorityisarelationshipinwhichonehasastandingoveranother.165.
Law and ConventionalityDworkin has pursued a number of different
lines of attack against ILP. Intheend, theyall
revolvearoundtheconventionalityof law. All
takeforgrantedthatweshouldunderstandlegalpositivismintermsofaruleofrecognition,
and that positivists are committed to understanding the rule
ofrecognitionas aconvention. Withtheseassumptions inhand,
Dworkinoffers a number of different objections, but the following
three are the mostinterestingandimportant:1) If the rule of
recognition is a convention it cannot explain the duty
ofofficialstocomplywithit.2) If the rule of recognition is a
convention then it cannot account for
thenatureandscopeofdisagreementaboutlaw.3)
Theruleofrecognitionisnotaconvention.Is the rule of recognition a
convention? In a way the question is
ambiguousbetweentwoverydifferentclaims:
Oneisthattheruleofrecognitionisconventional and the other is that
it is a convention. At one point both GeraldPostema andI
(separately) suggestedthat the rule of recognitionis
aLewis-likeconvention(Coleman, 1982; Postema1982). I cannot attest
to16I have pursued this discussion of the concept of legitimate
authority to emphasize the pointI have been making from the outset,
namely, that the major contribution of ILP is that it hashelped
focus attention on central jurisprudential concerns including the
relationship betweenthe nature of law and the nature of authority.
I hope the above discussion gives some credenceto that claim. The
argument from authority is merely one of a family of arguments
designedto show that ILP rests on a confusion or mistake or that it
is inconsistent with other importantfeatures of law. Scott Shapiro
has offered several different lines of attack against versions
ofILP. InHartsWayOut, hearguesthat Hartscommitment towhat
hecallsthepracticaldifferencethesisisincompatiblewithHartsadoptingILP;
Shapiro1999, 454.
AndinhiscontributiontothissymposiumhearguesmoregenerallythatILP
isincompatiblewiththelawasplans.
Theargumentispowerfulandvalidbutreliesofcourseonthecontroversialclaimthat
laws areplans. I couldnot possiblyhopetodojusticetoShapiros
powerfulargumentsinthiscontext. Myclaimisnot that ILPiscorrect, but
onlythat
noargumentagainstithassucceeded.PerhapsShapiroswill,butthatwilldependonhisdemonstratingthatlawsareplansrst.
SeeShapiro2002, 387.373 Beyond Inclusive Legal Positivism2009The
Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris,
Vol. 22, No. 3Postemasmotivationfordoingso,
butIcanspeaktomyownconcernsandmotivations. I wasworriedabout
howpositivismcouldexplainthenormativity of law. In The Concept of
Law, Hart implied that all legal ruleswere social rules and that
this fact about them allowed his view to explainthe aptness of
obligation when talking about the role of law in normativespace. He
was contrasting his viewwiththe commandtheory whoseimpoverished set
of resources left it unable to distinguish being
obligatedfrombeingobliged.The rst problem with Harts account is
that it is not true that all lawsaresocialrules.
InfactforHartonlyonelegalrulemustbeasocialruleand that is the rule
of recognition. The rule of recognition is supposed tobe binding or
obligatory for those governed by it, namely, officials. And
so,Iworried, howcansocial
rulesgroundobligations?Whataccountcouldone give of the rule of
recognition that was sympathetic to its being a socialrule and at
the same time explaining how it could be a source of reasonsfor
those governed by it? I thought the problem could be solved if the
ruleof recognitionwere a Lewis-convention. Sucha conventionis a
Nashequilibrium, which means that every person governed by it would
have areason to comply with its demands in the sense that no person
would havea reason unilaterally to defect, that is, not comply. All
would have reasontocomplyprovidedthatotherscompliedaswell.However
imaginativeandwell motivatedmysuggestionwas, it wasimplausible and
less helpful than I had hoped. A convention is a solutionto a
distinctive kind of coordination game. These games are dened by
thepreference structure of participants. Other orderings of
preferences are notcoordination problems and their solutions are
not conventions in therelevant sense. This fact about coordination
games proved to be myargumentsundoing.Hart holds that a rule of
recognition is a necessary feature of law; thereis no law without a
rule of recognition. Were I correct in thinking that
theruleofrecognitionisaLewis-convention,
itwouldfollowthatlawcouldexistonlyifaLewis-conventionexists.
Thatimpliesthatlawcouldexistonlyif thepreferencesof therelevant
officials, includingjudgesinpar-ticular, werealignedasaformal
coordinationproblemtowhichLewis-conventionsareasolution. That
impliesthat
officialshavingpreferencesexhibitingacertainstructureisanecessaryconditionfortheexistenceoflaw.
Andthat, I fear, isnot aplausibleexistenceconditionof
law.17Ofcourse it is possible that judges have preferences
structured in a way thatdenes a coordinationproblem. It is
possible, but not likely, that thishappens often. It is even
possible, but wildly unlikely, that this happens allthe time. What
is not plausible is that their having preferences
structuredinthiswayisanecessaryconditionoftheverypossibilityoflaw.17ThisisthegistofScottShapirosobjection.374
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3Although the idea that the rule of recognition is a convention
has turnedoutnottobeparticularlyhelpful,
onceittookholditwasnearlyimpos-sible to dislodge either positivists
or their critics from it. No one has beenhappier saddling
positivism with the view that the rule of recognition is
aconvention than Dworkin, and I cannot blame him for taking
advantage ofthe fact some positivists have been slow to run from it
while others haveembracedit.If the rule of recognition is a
convention, how are we to explain it as
asourceofjudicialobligation?DworkinposestheprobleminawaythatIlike
to think of as a dilemma: If the rule is a convention, then the
scope ofthe duty it imposes depends on its content, and its content
in turn is xedby the scope of convergent behavior. Where convergent
behavior runs out,so too does the convention; and where the
convention runs out, so too doesthe duty of officials to act as it
demands. One horn of the dilemma, then,is this: If we treat the
rule of recognition as a convention, we end up withtoo little
content and therefore not enough constraint or obligationunderit.On
the other hand, judges can disagree about what the rule requires
ofthem. Theirscannotbeadisagreementaboutwhattheyconvergeon.
Bydenitionit isadisagreement about what theydonot
convergeonandabout what the rule requires. If that is so, then the
duties the rule imposeson them cannot be xed by the scope of their
convergent behavior. This isthe secondhornof the dilemma. If the
rule of recognitionis a duty-imposing rule it cannot be a
conventional rule, it must be a normative
rule.Eithertheruleofrecognitionisaconvention,inwhichcaseitspeciestoo
little bythe wayof judicial constraint andcannot make sense
ofdisagreementaboutitscontent;oritcanexplainthefullscopeofjudicialduty
as well as meaningful disagreement but it cannot be a convention.
InhisearlierworkDworkinthoughtthatthismeantthattheruleofrecog-nitionmust
beanormativerule. Lateronhesimplyrejectedforrelatedreasons the very
idea of a rule of recognition and introduced the notion
ofconstructive interpretation that forsakes (as we shall see) the
idea of criteriaoflegalityaltogether.1818Ultimately,
asIhavesuggested,
Dworkinrejectstheideathatlawinvolvesthenotionofcriteria. Hedevelops
most of his arguments inthecontext of offeringobjections
tolegalpositivism. He invariably characterizes legal positivism in
terms of a rule of recognition, butmore generally in terms of a
commitment to the conventionality of law. The commitment
totheconventionalityof lawisexpressedintermsof thecriteriaof
legality. Thecriteriaoflegalityor laware determinedconventionallyor
set out inaconvention(that is at thefoundation of
lawparadigmatically, but not necessarily, in a rule of
recognition). I mentionthis because the notions of conventionality
and criteria of legality are often lumped togetherboth for the
positivists and for Dworkin. His ultimate target, I believe, is the
idea of criteria,butmuchofhiswell knownattackisonconventionality.
Onmyreading, thoseattacksonconventionality are best seen as either
indirect ways of attacking the notion of criteria or asbrush
clearing necessary to face the notion of criteria straight on. Many
of his concerns
aboutcriteriathenareapproachedthroughobjectionstoconventionality.
Hisargumentstherefore375 Beyond Inclusive Legal Positivism2009The
Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris,
Vol. 22, No. 36. From Doubts about Conventions to Doubts about
CriteriaThereadermayrecallthatDworkinsrstworriesabouttheconvention-alityof
theruleof recognitionaroseinresponsetomysuggestion(thecoreclaimof
ILP) that theruleof recognitioncouldspecifymoralityasa conditionof
legality. Dworkinclaimedthat moralitycouldnot be acondition of
legality for two reasons. First, he held that legal positivism
iscommitted to law consisting in hard (not soft) facts and morality
is a softfact (though those of us who nd its demands quite hard
sometimes woulddisagree). I have already expressed my views about
this very implausibleline of objection. Second, he suggested that
there is too much disagreementabout what moralityrequires for
moralitytobeaconditionof legalitywithin the structure of a rule of
recognition that is a convention. In otherwords,
judgesaskedtoimposemoral constraintsonlegalitywill exhibittoo much
disagreement in their conduct for the rule that imposes the
dutyonthemtodosotoconstituteasocialrule, thatis,
aruleconstitutedbywidespreadconvergentbehavior.This objection cuts
no ice. My response (which is one of the
fewresponsestoanobjectionaboutwhichIremaintotallyconvinced)isthatthe
rule of recognition requires that officials converge on applying
relevantmoral standardstoassesslegality,
notthattheyagreeonwhatapplyingthose standards requires in
particular cases. Convergence on the criteria
isperfectlycompatiblewithwidespreaddivergenceonwhatfallsunderit;theformer
(convergenceoncriteria) andnot thelatter
(convergenceonapplication)isrequiredbytheconventionalityoftheruleofrecognition.This
response is entirelyconvincing, but it merelyset the stage
forDworkins deeper concern, which is that if the criteria are xed
byagreement among officials, there is no way to make good sense of
possibledisagreementsamongthemaboutwhatthecriteriaare.
Yetdisagreementaboutthecriteriaoflegalityorthegroundsoflawisasalientfeatureoflegal
practiceandcertainlyonethat anyplausibletheoryof lawmustaccount
for. Sinceconventions arexedbysharedbehavior amongtheofficials,
they cannot exist if there is disagreement about what the
contentbegin by associating criteria of legality with the existence
of a convention that xes what
thosecriteriaare.Thecriteriaoflaw(inacommunity)areexpressedinaconvention,whichistosaythat
theyarexedbytheconvergent behavior of therelevant officials. If
agreementamongofficials xes thecriteriaof legalitythenit is
impossibletoexplaindisagreementamong officials as to what those
criteria are. Positivism can explain disagreement about
whichnormssatisfythosecriteria,
butitcannotcountenancemeaningfuldisagreementastowhatthosecriteriaareforthesimplereasonthatthecriteriaarethemselvesxedbyagreement.Sowhatwewanttodonowistracehowtheworryaboutconventionalityandtheruleofrecognitionultimatelybecameamuchdeeperworryabout
thecentralityof criteriathem-selves. I want to do this by
demonstrating the important role ILP played in ultimately movingthe
debate beyond its initial boundaries to much more signicant issues
that are leftuntouched by ILP but whose place in the limelight of
jurisprudence owes at least somethingtothecontributionmadebyILP.376
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3of theconventionis. Thus, its commitment
toconventionalismrenderspositivismunabletoexplainthenatureandscopeoflegaldisagreement.Obviously,
thisobjectionrestsonhowweunderstandtherelationshipamongthreedifferentideas:
conventionality, criteria, andconvergenceofbehavior. We cannot
assess it, however, until we clarify these notions andespecially
their relationship to one another. Lets see if we can provide
atleastsomeoftheneededclarications.Iputthefollowingdistinctionsintermsof
rulesof languageinpart toset
thestageforthediscussiontofollowoftheso-calledSemanticSting.1)
Contentclaims:(a) The content of a conventional rule is xed by the
scope ofconvergentbehavioramongthosegovernedbytherule.(b)
Thecontentofaconventional ruleisxedbysocial
factsaboutthebehaviorandattitudesofthosegovernedbytherule.192)
Knowledgeoraccessclaims:(a) Withrespect toatermor concept,
competent speakers of thelanguage each have access to the criteria
specifying its proper useinthesensethat
eachspeakerknowsorhaspersonal accesstothosecriteria.
(IndividualCriterialism).(b) Withrespect toatermor concept,
competent speakers of
thelanguagehaveaccesstothecriteriaspecifyingitsproperuseinthe sense
that there are experts in the linguistic community whoknow the
criteria and the best explanation of the linguistic
behav-iorofcompetentspeakersmoregenerallyrequiresattributingtothemtheintentionwhenusingthetermtobereferringtothosecriteria.
(Community-wide CriterialismDivision of
LinguisticLaborCriterialism).203) Theexistenceclaim:19It may be
easier to see what I have in mind if we shift focus from law to
language. Howmight we make out a conventionalist view of language
(use)? One view might hold that thecontent of the rules governing
linguistic usagewhat the language rules permit or
prohibitarexedbyconvergentusage. Wherethereisdivergentbehavior,
thereisnorule. Anotherview might hold that whatever the rules
require, they are the rules that govern because theyare practiced
and supported by those to whom they are addressed (speakers of the
language)in the right kind of way. Presumably, that means there is
a sufficient convergence on the rulesas standards by which the
linguistic behavior of language speakers is assessed. The latter
isthe more plausible interpretation of the claimthat language is
conventional. Ordinaryspeakers of the language generallyconverge
intheir adoptionanduse of certainrulesgoverningtheuse.
Thesestandardsareimplicit intheir speechandaremadeexplicit
onoccasions whentheyare requiredtoexplaintheir linguistic behavior
or tocriticize thebehavior of others. It is ludicrous tothinkthat
competent speakers of thelanguagecanexpress the content of the
rules; and there is even less reason to suppose that the content
ofthoserulesisxedbytheextenttowhichtheirlinguisticbehaviorconverges.20The
criteria are xed by shared behavior. Where there is no convergence,
there are no criteria;where there is no convergence, there is no
duty; where convergence runs out so too does duty;and so on. This
is the notion that Dworkin invariably exploits against the
positivist.377 Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3(a)
Theexistenceandenduranceofaconventionalruledependsonitsbeingpracticed(andotherpossibleconditions).21Dworkinattributestopositivismaconventionalismabout
thecriteriaoflegalitythatconsistsintheconjunctionof(1)aand(2)a.22Toseethis,oneneed
only revisit the notorious semantic sting argument in Laws
Empire(Dworkin 1986, 45). The semantic sting argument begins by
attributing
tolegalpositivismasemanticprojectsuchthatlegalpositivismistheviewthat
the aim of jurisprudence is to provide a theory of the meaning of
theterm (or concept) law. A positivist theory of law is a theory of
law. Thisisnotapromisingbeginning.Dworkin goes on to argue that
legal positivists are not only
committedtoprovidinganaccountofthemeaningoflawbutthattheyholdthatthe
meaning of the term law is xed by criteria specifying its proper
use.Those criteria are a set of necessaryandsufficient conditions
andaresharedbycompetent speakersof thelanguage.
Thecriteriaarexedbyshared usage to which competent speakers have
access. The philosophicalproject of jurisprudence is to uncover the
criteria for the proper applicationof law by exploring ordinary
usage, reecting on it, and systematizing it.Thegist of
thesemanticstingnowfollows naturallyfromthesetwocentral
attributions. If thecriteriaof lawarexedbyusagesthat
aresharedbycompetent speakersof thelanguage, thentheycannot
mean-ingfully disagree about what those criteria are. Dworkin then
notes, quitecorrectly, that a salient feature of law(not law mind
you) is thatcompetent lawyersandofficialsdisagreeabout
thecriteriaforbeingthelaw of a particular community. Disagreement
about the criteria of law is asalient feature of legal practice
that legal positivism cannot account for invirtue of its
conventionalism/criterialism. This is just another way
ofexpressinghis attributionof (1)aand(2)atolegal positivism.
Botharenecessarytogeneratethesting;
theabsenceofeitherrendersitharmless.As Ori Simchen and I
demonstrate in Law (Coleman and Simchen
2003)Dworkinssemanticstingargument isinvalidandunsoundat best,
andprobablyanon-sequituraswell. Intherstplace,
itdrawsaconclusionabout thecriteriaforlawfromaninsight about
thecriteriaof law.
Itclaimsthatjudgesdisagreeaboutthecriteriaforanormconstitutinglawintheir
jurisdictionwhichis trueandinfers fromthat theydisagreeabout the
criteria for the proper application of the concept or term law.If
they agree about the criteria of law then such disagreement would
beimpossible.21Hartsnotionof aruleof recognitionisauseful
illustration: theruleexistswhenit ispracticed, that is, there is
sufficient convergent behavior andacritical reective
attitudetowardthatbehavior.22Incontrast, myviewis that
conventionalismabout language (or law) consists
intheconjunctionof(1)band(3).378 Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3This is seriously confused. For it is perfectly compatible
with criterialismabout law that lawyers disagree about the criteria
of law. It may well bethat part of the criteria of law that all
competent speakers of thelanguageshareisthat lawisawayof
regulatinghumanaffairsdistin-guished (among other things) by the
fact that lawyers and judges disagreeabout what
thecriteriaforanormsbeinglawintheircommunityare.Disagreementaboutthecriteriaoflawispartoftheapplicationconditions,
thatis,
thecriteriaoflawthatcompetentspeakersofthelanguageshare.Next, lets
consider Dworkins attribution of (2)a to the positivist.Readers
familiar with our paper know that we argue that the reference oflaw
is not xed by criteria of any sort, but lets ignore that for a
momentand allow Dworkins ascription of some or other form of
criterialism to thepositivist. He attributes individualistic
criterialism to the positivist, whichhe must do in order to render
the possibility of meaningful disagreementa problem for them. In
fact, however, individual criterialism is apt only
forcertaintermsinanatural language(one-criteriontermslikesow)
andlaw is not among these. If the reference of law is xed by
criteria (andit is not), the notion of criteria that is apt is
community-wide criterialismwhichrelies onPutnams notionof a
divisionof linguistic labor ([2]babove).Finally, meaningful
disagreementisrenderedimpossiblebyattributingto legal positivists
(1)a, but this is wildly implausible. Those who adopt
theviewthatcertainrulesareconventionalmeantoclaimtheconjunctionof(3)
and(1)b. The existence of the rule as a standarddepends
ontheexistence of a practice with regard to it(3)and not, by way of
contrast,its truth. The content of the rule is determined by social
facts(1)bandnot, bywayofcontrast,
moralorothernormativefacts.23Thereisnoproblemat all
incomprehendingthepossibilityof mean-ingful disagreement about the
criteria of legality. The content of the criteriaare determined by
facts about behavior and attitude, but not in the crudewaythat
Dworkinattributestolegal positivistsinwhichthecontent
isxednarrowlybythescopeofconvergentbehavior. Justthinkhowoddthat
view would be in the context of conventional rules generally,
includ-ingespeciallytheconventionsgoverninglinguisticusage.
Finally,
totheextentthatconvergentbehaviorguresinthecharacterizationofconven-tional
rules it bears on their existence and endurance, not on
theircontentatleastnotontheircontentasin(1)aor(2)a.23So when
someone claims that the rules of language use are conventional, he
means to saythat what they are depends on what people do, but, how
it is that what they do determinesthe content of the rule is itself
a matter of great theoretical interest. In other words, how
socialfactsmakesocialrulesisamatterofinterestanddisagreement.Theclaimofconvention-alismistheclaimthat
suchfactsaretheconstituentsof
suchrulesandtheplausibilityofconventionalism ultimately depends on
the plausibility of that claim. For some doubts
aboutpositivistaccountsofhowfactsmakelaw, seeGreenberg2004.379
Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3I dont thinkthat Dworkinhasmadetheheadwayagainst legal
posi-tivismthat hethinkshehas. Evenwerepositivistscommittedto(1)
theimpossibility of law without criteria of legality, (2)
conventionalism aboutthe foundations of law, and(3) the viewthat
the criteria of lawareexpressed in a convention at the foundation
of law,24Dworkins argumentswouldnot prevail. Positivismwouldbe
quite capable of providinganexplanation of how meaningful
disagreement about the criteria of
legalityispossibleorsoIhavejustargued.Dworkins argument against
positivismserves a strategic role inhisoverall argument that
is(fortunately) unnecessary. Thestrategyof
LawsEmpiretakestheformofadisjunctivesyllogism: Jurisprudential
theoriesare either interpretive or semantic; the semantic sting
shows they cannot besemantic; therefore, jurisprudential theories
must be interpretive. Thatargument is invalid, but its
invalidityhas nobearingonthe value
orinterestoftheinterpretivismthatDworkinoffers.Relatedly,
andtomymind, moreimportantly, Dworkinsreal targetisnot semantic
theories of law or even conventionalism about law. It is muchbigger
and more important. His target is the very idea that thinking
aboutlawcommits us tothinkinginterms of criteria of
anysortwhethercriteria distinguishing the legal from other domains,
or criteria for distin-guishing the law of this community from the
law of other communities.
ItistothisfeatureofhisviewthatIwanttoturninthenextsection.7. Beyond
Criteria of
LegalityOnecannothaveasustaineddialoguewithouttreatingsomefeaturesasxedinthecourseoffocusingonothers.
InordertointroducemyclaiminNegativeandPositivePositivism(Coleman1982)thatlegalitycouldbeacriterion
of legality, I had to take as given the other central features of
theHartianframework. Overtime, I wasentrappedbythem,
especiallytherule of recognitionandthe separability thesis.
Initially I was trappedbecause I was offeringa wayout for Hart
andsoI hadtooffer mysuggestion within the Hartian framework. I
could not shake loose the ruleof recognition because I formulated
ILP in such a way that it depended onthe existence of a morality as
a condition of legality clause. I was
trappedbytheseparabilitythesisbecauseIwaschallengedtoshowthatILP
wasconsistentwiththeseparabilitythesis.Asithappens,
Irejectboththeruleofrecognitionandtheseparabilitythesis. In what
follows I explain my doubts about both and then formulatethe
central claim of ILP without relying on either notion. One
consequence24Hart is committed to all three of these, but
positivists in general are not. Raz in particularis committed to
(1) but to neither (2) nor (3). I am not sure that I would accept
either (1), (2),or(3). Toseewhyseeinfra.380 Jules L. Coleman2009The
Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris,
Vol. 22, No. 3of abandoning the rule of recognition is that it has
allowed me to rethinktheveryideaof criteriaas central tolaw. This
is apoint I
mentionedalreadyinreferencetoDworkinandinwhatfollowsIhopetosayabitmoreaboutitallofittentative,
Ifear, andfarfromconvincing.I begin by raising a few concerns about
the rule of recognition. One wayof reading Hart is to treat the
rule of recognition as a conceptual
require-mentofourcapacitytospeakmeaningfullyaboutlaw.
Wecannotmakesense of a domain of activity called law without
presupposing some notionlikethatofaruleofrecognition:
arulethatsetstheboundariesbetweenlawandother ways of
regulatinghumanaffairs suchas morality,
andpricingmechanisms.Ihaveacoupleofworriesaboutthiswayofthinking,
however. IowemydoubtstomyreectionsonRazandDworkin. Letmeexplain.AsI
readhim, Raziscommittedtotheconcept of criteriaof legality.After
all, the argument from authority is all about exploring constraints
onthecriteriaof legality. Razalsorefers torules of recognitionbut
heisnowhere committed to anything like Harts notion of a rule that
unies alegalpracticeanddistinguisheslegalsystemsfromoneanother. So,
evenif Raz is committed to criteria of legality and to rules of
recognition, he doesnot embedthenotionof criteriaof
legalityintheconcept of
aruleofrecognitioninHartssenseoftheterm.Actually Raz says very
little about some aspects of the criteria of legality.His focus is
on the connection between conceptual features of law (i.e.,
theclaim to legitimate authority) and constraints on criteria of
legality. He haslittle if anything to say about the sources or
grounds of the criteria, that
is,howtheycometobethecriteriainaparticularcommunity.
TheusefulcontrasthereiswithHartwhoseruleofrecognitionisanaccountofthefoundations
or grounds of the criteria of legality. Hart thinks it imperativeto
introduce a rule of recognition in order to speak meaningfully
about lawbecause the domain of the legal presupposes criteria of
legality and
thosecriteriamustbeunderstoodintermsofaruleofrecognition.AsI
amreadinghim, RazagreeswithHart that
inordertospeakoflegalityweneedtopresupposethat therearecriteriaof
legality, but hedisagreeswithHartinthatheseesnophilosophical
needtoexplaintheorigin or ground of those criteria. Instead, we
have to understand whetherother features of the concept of the
legal impose constraints on what thosecriteriacanbe.
Thatistheconcernofjurisprudence.I think that Raz and Hart are both
onto important, but different, things.There is no question that Raz
is right in thinking that even if the existenceof criteria of law
or of legality is a presupposition of the possibility of lawor of
the legal domain we do not need to posit anything like Harts
notionof a rule of recognition. On the other hand, I think Hart is
on to somethingabout the sociality of law that is missing from Razs
account. Whatever theproblemswithHartsnotionof aruleof
recognitionmaybe, oneof its381 Beyond Inclusive Legal
Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3great values is that it identies law with a kind of
coordinated social
activity.IamnotsurethatHartisrighttohavefocusednarrowlyonjudgesanymore
than he is right to have focused on a rule of recognition as a way
ofarticulating the notion of criteria of legality. I do think he
has an insight inthinking that we do not grasp what law isand our
theories of it will fallshortif we fail to identify the distinctive
social aspects of it. The relevantsocial aspects of law are those
at its foundation, specically, its
organizingandcoordinatingsocialfoundation.It ispossibletothinkthat
thedistinctivelyphilosophical taskofjuris-prudence is to explore
whether there are constraints on criteria of
legality,holdingineffectthatotherissuespertainingtothecriteriaoflegalityfalloutside
the ken of jurisprudence or philosophical inquiry. It is a matter
of,forexample, historyorpolitical
sciencetodeterminehowthecriteriaoflegality come to be what they are
in this or that community. It is a matterof political science, say,
to gure out which institutions are the distinctivelylegalones,
andsoon.I havenoproblemwiththedivisionof jurisprudential
laborbetweenphilosophy and the social sciences. My worry is whether
we are asking toolittle of philosophy and whether we will fail to
identify the essential natureof law if we ignore the distinctively
social aspects of law as a form of
socialorganizationortouseShapiros wayof thinkingas aplanandas
adistinctwayofplanning.If Raz can be read as abandoning the
centrality of the rule of recognitionas central to understanding
law, then Dworkin can be read as encouragingus toabandonnot just
Master Rules, but criteriaof legalityaltogether.Whatever one thinks
of the success of his arguments in Hard Cases or LawsEmpire, it is
clear that Dworkins claims about law make very good sensethough
there is no reference to anything like a rule of recognition, or
moreimportantly, to criteria of legality (Dworkin, 1986; 1975). In
Hard Cases lawis characterizedas a subset of political rights,
namely, those that arecoercivelyenforceable;
andinLawsEmpirelawischaracterizedasthosepolitical principles that
provide the best explanation of a set of
pastpoliticalacts(inparticularjurisdictions).To be sure some
positivist-inclined commentators have tried to press
theargumentwithout success in my viewthat Dworkin has to
presupposethe idea of a rule of recognition in order to pick out
those political acts thatcall for interpretation and to distinguish
them from those political acts thatdo not. These arguments fail for
two reasons. First, even if Dworkin neededto appeal to a standard
for distinguishing the political acts that count fromthose that do
not, it would hardly follow that the standard he needs wouldamount
to a rule of recognition in Harts sense. A rule of recognition in
thatsense is, after all, a particular kind of standard that carries
with it a rangeof additional commitments (e.g., conventionality,
non-revisability, the inter-nal point of view, and so on). Second,
it is not obvious that Dworkin needs382 Jules L. Coleman2009The
Author. Journalcompilation2009BlackwellPublishingLtd. RatioJuris,
Vol. 22, No. 3anything beyond a set of past political acts that are
paradigm cases of thesort of acts that constitute legal activity
(e.g., legislative
enactments,judicialdecisions)inordertogettheinterpretiveprojectgoing.IamnotaDworkinianofcourse,
andhisownjurisprudentialaccountmayfail, but if it does it wouldnot
bebecauseit lacks thenotionofcriteria of legality. If that is so, I
am inclined to think that not even thenotion of criteria of
legality is part of the concept of law. It is instead
partofadistinctivewayofthinkingaboutlawthatiswidespreadandmuchendorsed,
andnot just amongpositivists. The vast majorityof naturallawyers
theorize about law in a similar way: They focus on the project
ofidentifyingwhichinstitutionsandactionsaredistinctivelylegal.There
is aworryabout Dworkins account that harkens
backtomyconcernaboutRazs.Onethingthatismissingwhenwethinkaboutlaw(as
Shapiro aptly puts it) from the perspective of outputswhether
theseoutputs are principles or enforceable political rights or
coercively enforce-ablenormsmoregenerallyisthat wemissanessential
featureof lawwhichisthat it involvessomecentral organizing,
coordinatingactivitiesregardlessofwhatthenatureorfocusoftheseactivitiesis.The
great value of Harts account is that he places this organizing
socialactivity at the foundation of law, even if the details of his
approach are notultimatelycompelling. Likewise, it isthegreat
insight of Scott ShapirosLegality that the law is both the product
of a social activity and a distinctivekind of social activity. My
worry, then, about both Raz and the
Dworkin-iansisthattheyunder-theorizethesocialaspectsoflaw.8. Beyond
the Separability ThesisIndistinguishinglegal
positivismfromotherjurisprudential views, mostcommentators
areinclinedtoidentifypositivismwiththeseparabilitythesis: the
rejection of a necessary connection between law and
morality.Certainly,
Hartemphasizedtheimportanceoftheseparabilitythesis, theideathat
thereisadistinctionbetweenwhat lawisanditsmerit ordemerit. I have
referredtoall suchtheories as versions of
negativepositivism.Myobjectiontonegativepositivismusedtobenotthatitisfalse,
but that it is soobviouslytrueas tobeof littleinterest.
Thingschange, for I now think that the separability thesis is no
part of positivismatall, andthatitisinanycaseverylikelyfalse.If the
separability thesis is not the core of legal positivism, then what
is?In my view, the core of legal positivism is the social facts
thesis. As we shallsee inthe next sectionof the essay, we
candistinguishbetweentwoversionsof thesocial factsthesis. Roughly,
oneversionholdsthat onlysocial facts contribute to legal content.
The other holds that only social factsdetermine what facts can
contribute to legal content. The rst view is Razs;the second is
mine. For the purposes of focusing on the separability thesis383
Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3we can ignore these subtle differences. For ease of
exposition, lets acceptthe Razian formulation of the social facts
thesis. In that account, only
socialfactscancontributetolegalcontent.The claimthat only social
facts contribute to legal content impliesnothing about the morality
of legal content. One is a claim about the stuffof which law is
comprised; the other is a claim about whether law exhibitsany
necessary moral properties. It may be that only social facts
contributeto legal content, but that in order for a scheme of
regulating human affairsto count as law it must satisfy a set of
moral constraints. These are just twodifferent kinds of concerns:
One is what law is comprised of; the other
iswhatifanythingcanbesaidfromthemoralpointofviewaboutlaw.259.
Reformulating ILPIamascommittedtoILP
todayasIhaveeverbeen.InthisessayIhavedefended ILP against the two
most powerful lines of objection to it.26Freedof the theoretical
burdens imposed by Harts reliance on the rule ofrecognition,
criteria of legality, and the separability thesis, how should
weformulate the central ideas of ILP? My suggestion is that we can
formulatethe core idea of ILP as a claim about the constituents of
legal content.27AsIseeit, wecandistinguishamongthreeclaims:1)
Necessarilyonlysocialfactsaredeterminantsoflegalcontent.282)
Necessarilymoralandsocialfactsaredeterminantsoflegalcontent.3)
Necessarilysocialfactsdeterminethedeterminantsoflegalcontent.25See,
e.g., Rosen, unpublishedmanuscript.
ThereareotherreasonsforrejectingtheSepa-rability thesis that I have
noted in my work before, for example, there is no reason why a
setof moral constraints cannot be imposed on what counts as law,
where law is understood asamodeof governinghumanaffairsbyreason. I
mentionsuchconstraintsinanumberofplaces, includingmyOJLSHart
Lecture: Coleman2007.
Thesearemorenarrowlycircum-scribedobjectionstotheseparabilitythesisthantheoneIamemphasizingabove.26Ontheotherhand,
I havelongresistedmakingbroad(andtomymindunwarranted)claims onits
behalf. I havenot offeredit as acompletejurisprudential viewnor
haveIpresented it as the best version of positivism or even as the
best account of Anglo-Americanlegal practice. Others have advanced
this and similar claims and it may well be that they seemore
promise in ILP than I have. Perhaps they are right; and if so, I
hope I will be forgivenfor my more modest ambitions especially if
they have led me to undersell or undervalue ILP.27I amnot
claimingthat theseconstitutefull jurisprudential viewsof course.
After all,
Iexplainsuprawhyanytheoryoflawwouldhavetoexplainthedistinctivesocialityoflaw.Heremyaimis
onlytodistinguishthekinds of views availablebywhat
theytaketheconstituentelementsoflegalcontenttobe.28When I use the
phrase, the content of law is xed only by social facts or only
social factscan contribute to legal content I am speaking loosely
and intentionally so. Of course, I meantoincludenatural facts,
institutional facts, andsemantic facts as well. Notheoryof
lawprecludesthem. Thepoint isjust toprecludenormativefacts. It
isthedifferencebetweentheoriesthatincludenormativefactsandthosethatallowthemthatIamemphasizingandI
use the convenient phrase only social facts to mark that
difference. This is the prevailingconventionIbelieve,
butIneverthelessfeel
itisnecessarytobeexplicitaboutitsoasnotunintentionallytomisleadthereader.384
Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3There are other possible views but these are of special
interest tous.(3)isthecoreclaimofILP;
(1)isthecoreclaimofexclusivelegal posi-tivism; and(2)
representsthecentral claimof all natural
lawpositions.BothDworkinianinterpretivists andclassical natural
lawtheorists arecommittedtooneor another versionof (2). For Razians
(1) is entailedby the argument fromauthority. For Dworkinians (2)
is entailed byinterpretivism.29Obviously (1) and (2) differ
substantially from one another. On the otherhand, their leading
proponents, Raz and Dworkin, respectively
havemoreincommonmethodologicallythanonemightthink.
Bothsharetheviewthatoneuncoversthenatureoflawbyexploringitsconnectiontofundamental
issues in political philosophy. Raz takes the relevant problemof
political philosophy to be specifying the conditions of legitimate
author-ity.
Fromthereheproceedstoarguefor(1).ForDworkinthecentralprobleminpoliticalmoralityisansweringthequestion:
What justiestheuseof collectiveforce(coercion)?Lawisananswer tothis
question. The fact that lawis understoodas
supplying(successfullyornot)thejusticationfortheuseofcollectiveforceentailsinterpretivism,
which, inturn, yields(2).Whereas for Raztheclaimtoauthorityrequires
that legal directivesfunctionas a wall betweenagents andthe reasons
that wouldjustifytheir actions, for Dworkinthe
claimtojustiedcoercionrequires
thatlegaldirectivesbeawindowthroughwhichthebackgroundreasonsthatapplycanbeseen.30ForRaz,theclaimtoauthorityisvitiatedifthewallcomesdown.
ForDworkin, justiedcoercionrequiresthat thedirectivesserve
merelytopoint us tothe principles that provide the best
inter-pretation of them. If the sunlight of the relevant moral
principles isblocked fromshining through, the claimto justied
coercion goesundefended.Unlike (1) and (2), (3) is not entailed by
any claims about the nature oflawor of our concept of it nor does
it derive fromany more basiccommitmenttheoretical, practical or
normative. As regards (3) I take
mytasktohavebeen(1)toexplainwhatisessentiallypositivisticaboutthisclaim;
(2) to defend this view against the charge that it is (a)
incoherent, (b)incompatible with legal positivism, (c) incompatible
with conceptual truthsabout law or (d) incompatible with essential
properties of law; and (3)
to29Interpretivismistheviewthatpastpolitical actsaresocial facts,
andthatlawisthesetofprinciplesthatprovidesthebestexplanationofthosefacts.30Finally,
one canreachthe conclusions Raz andDworkinreachabout the
constituentelements of legal content without adopting the general
methodological approach that Raz andDworkin adopt. Scott Shapiro
and Andrei Marmor are both committed to (1) for very
differentreasons, but neither nests their substantive jurisprudence
in normative jurisprudence. By thesametoken, MarkGreenberg,
NicosStavropoulos, andStephenPerryall
adoptsubstantivejurisprudentialviewssimilartoDworkins,
butnoneofthemdrawtheirsubstantiveclaimsbybeginningwiththeDworkinianinterpretivemethodology.385
Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3display its intuitive appeal. I leave it to others to
determine whether I havesucceeded and whether this is enough to
recommend it, not as a jurispru-dence,
butasanaccountoftheconstituentsoflegalcontent.10. The Sociality and
Normativity of LawIt isacommonplacethat lawisanormativesocial
practice. Most com-mentators come to the conclusion that in one or
another formlegalpositivism does a good job of capturing laws
social nature, but a poor jobof capturingits distinctive
normativity. Incontrast, natural lawis pre-sumed to provide an
especially plausible account of the normativity of lawand a less
than persuasive account of its social or institutional
dimensions.We need to move beyond these comic-book
characterizations which are,if anything, toogenerous tobothlegal
positivismandtonatural lawtheory. I am skeptical that positivists
have provided persuasive accounts
ofthesocialdimensionsoflegality.31Thereis,
somethingessentiallycoordi-nativeandcoordinatingatthecenteroflaw,
andpositivistsneedtosaysomething helpful about it. My efforts to do
so have not been persuasive;norhaveHarts. Othershavenot
seenthepoint oftrying. Tohiscredit,Shapirotakesonthisburden.
Timewilltellhowwellhedoes.If positivismhasnot
quitemeasureduptoitspressclippingsonthesocial side of law, natural
law theory deserves a similar report card on thenormative side of
the ledger. Nevertheless, the normativity of
lawisthoughttopresentaspecial problemforlegal positivism.
Thisismyste-rious tome, but it must havesomethingtodowithlegal
positivismsassociation of law with social facts. What else would
explain why so manycommentatorsareconvincedthat theproblemdoesnot
arisefornaturallawyersorwhytheybelieveitislesspressingforthem?32Lets
begin by distinguishing among three different kinds of concerns
theworryaboutthenormativityoflawmightpresent:1)
Concernsaboutdutyofdelitytolaw.2)
Concernsaboutthejusticationofcoercion.3)
Concernsaboutthecapacityoflawtogivereasons.Letstaketheseupinorder.Inclaimingthatlawisanormativepractice,onemighthaveinmindthedutyofdelitythosegovernedbylawhaveto
it. The duty of delity to law can be understood as the requirement
torespect andsupport its institutions, which wouldinclude but not
be31Tobesurepositivistsall holdsomevariant of thesocial
factsthesisbut noonecouldseriously entertain the view that the
claim that legal facts are social facts is an account of
thesocialdimensionsoflaw.
Thereismoretosocialitythansocialfacts!32My view is that whatever
the problem of explaining the distinctive normativity of law is,it
is as much a problem for natural lawyers as it is for inclusive and
exclusive legal positivists.386 Jules L. Coleman2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No.
3restrictedtoactingincompliancewiththoseofitsinstitutionaldirectivesthat
apply. Lon Fuller emphasizes the duty of delity to law and he
takesthis dutytocreate a special problemfor positivists
whoinadequatelymoralizelawandlegality.It is an open question
whether law necessarily demands delity.
Supposeitdoesandthatdelityrequiresthatthosegovernedbylawsustainandsupport
its institutions and (generally) comply with its directives.
Itfollows that a theory of law must have resources adequate to
ground theduty of delity so conceived. Does the duty of delity to
law raise a
specialproblemforpositivistsinvirtueoftheirclaimthatthecontentoflawisxedbysocialfacts?Icannotseewhyitwould.TheSourcesthesisisaclaimabout
thestuff of legal content andnotabout the value or merits of law
(the thing that is composed of that
stuff).Presumablylawcanserveanumber of valuablesocial
endsincludingcoordinating human activity efficientlyand it may do
this better than anyother alternative form of social planning or
control. If it does so in a way thatallows individuals to promote
their projects and plans autonomously andwithout undue
interference, it may well be deserving of support andadherence,
certainly insofar as others who are similarly situated adhere to
itsdemands and in doing so contribute to its ability to serve its
coordinatingfunctions. It would be odd indeed if law could serve
desirable social endsonly if its content were xed by moral as well
as social facts. What mattersto the duty of delity to law is not
the metaphysics of legal content, but therole law plays in our
lives and its relative success in playing that role.Nor do I see
that natural lawyers are in any better position than are
legalpositiviststoexplainthedutyofdelitytolaw.Whywouldthefactthatlawpassesamoral
test implyadutyof delitytolaw?Manypossibleinstitutions may never do
anything wrong (as judged from the moral pointof view) or require
of us that we act contrary to moralitys demands; butthen again
these very same institutions may seek to accomplish very
littleandsucceedonlyintheirmodestandnotparticularlyhelpfulambitions.They
may time and again miss opportunities to make our lives easier,
morefullling, moresatisfying, andbetterintegratedwiththelivesof
otherswithwhomweareinregularcontact.
Suchaninstitutionpassesamoraltest narrowlyunderstood, but it seems
implausibletosupposethat wehave responsibilities to endorse,
support or sustain itin fact to
doanythingatalltocontributetoit.Ifthereissomethingaboutlawassuchthatgroundsadutyofdelitytoit,
itsurelyhassomethingtodowithhowlawaddressesthosewhoseconduct it
governsthe respect it shows for the agency and autonomy ofthose it
seeks to bind by its directives and its success in regulating
affairsamongthegovernedandthefairnesswithwhichitdoesso.Perhaps in
claiming that lawis a normative social practice one isdrawing
attention to the claim that the relevant legal actors are justied
in387 Beyond Inclusive Legal Positivism2009The Author.
Journalcompilation2009BlackwellPublishingLtd. RatioJuris, Vol. 22,
No. 3coercively enforcing its authoritative directives. If so,
there is an immediateproblemsinceit isnot anecessaryfeatureof
lawthat
itsdirectivesarelegitimateorthatthoseauthorizedbylawtoenforcecoercivelyitsdirec-tives
are justied in doing so; more generally, it is not clear that the
conceptof law carries with it the justication of coercion. In fact,
it is clear that nosuchimplicationattachestotheconceptoflaw.
Accordingly, thiswayofcapturing the claim that law is a normative
social practice seems
withoutpromisefromtheoutset.SomecommentatorsareanxioustoattributetoDworkinaclaimaboutlawandcoercionthatisverymuchintheneighborhoodofthisunprom-isinginterpretationoflawsnormativity.
Theyreadhimasclaimingthatthe function of law is to justify the
coercive authority of the state. Dworkinmakes no such claim,
however, and it is a mistake to saddle him with
thisequallyunpromisingpointofdeparture.33Dworkin does however make
two interesting and plausible claims
abouttherelationshipbetweenlawandcoercionthat onemight
confusewiththese implausible ones. The rst of these is his view
that law answers thequestionof what justies thecollectiveuseof
force. If necessarilylawanswers this question, then law must be the
sort of thing that could be ananswertothisquestion.
Tosaythatlawisthesortofthingthatmustbecapableof
answeringthequestionof what justiesthecollectiveuseofforce, is not
to say that the answer law gives is the right one or even thatit is
a plausible one. Thus, the fact (if it is one) that law necessarily
answersthe question of what justies the collective use of force,
imposes noconstraints on legal theory that are problematic for
positivismor for anyothertheoryforthatmatter.On the other hand,
were it part of the concept of law that it provides
therightanswertothisquestion, thentheremaywell
beconstraintsonthekindofthingthatlawisthatcouldproveproblematicforthepositivist.However,
that is not the claim Dworkin is making; he does not make it forthe
very good r