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Ratio Juris. Vol. 22 No.

3 September 2009 (35994)

Beyond Inclusive Legal Positivism*


JULES L. COLEMAN

raju_430

359..394

Abstract. In this essay, I characterize the original intervention that became Inclusive
Legal Positivism, defend it against a range of powerful objections, explain its
contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on
three notions that are either mistaken or inessential to law: the separability thesis,
the rule of recognition, and the idea of criteria of legality. The first is false and is
in 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 in
a way that relies on none of these: ILP is the claim that necessarily social facts
determine the determinants of legal content. I show that ILP so conceived leaves
the central debates in law largely untouched. I suggest how the most fundamental
of thesethe question of the normativity of lawat least can be usefully
addressed. The essay closes by suggesting that even though one can distinguish the
social from the normative dimensions of law, a theory of the nature of law is
necessarily an account of the relationship between the two: It is a theory either of
the difference that certain distinctive social facts make in normative space, or it is
an account of the distinctive normative difference that law makes, and the social
and other facts that are necessary to explain that difference. One can distinguish
between but one cannot separate the social from the normative aspects of legality.

1. Introduction
It is natural to characterize contemporary analytic jurisprudence as a
sequence of distinct but overlapping dialogues between competing camps:1
* I cannot begin to express my gratitude to the organizers of the conference on my Inclusive
Legal Positivism and to the many legal philosophers who attended. I am deeply honored by
the attention all have given my work and am privileged to have had such wonderful
interlocutors over the years. Some started as my students; a few as my teachers; and others
as my critics. All are my friends and colleagues; and I am indebted to them all. John Rawls
once confided in me that he did not think that he had much original to say but that he was
untroubled by that fact since he felt that originality in philosophy was much overrated. I
claim no originality for my work. If standing on the shoulders of giants was good enough for
Rawls it sure as heck is good enough for me. In my case, I wobble on the shoulders of the
giants of our field: Herbert Hart, Joseph Raz, and Ronald Dworkin. I especially want to thank
Leslie Pope for her excellent research assistance.
1
Some might call them disputes or debates. All such terms are apt in different ways.
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Positivists are in dialogue with natural lawyers, realists with formalists,


positivists with Dworkinian/interpretivists, and inclusive with exclusive
positivists, and so on. These dialogues have often served to shape the
way in which central concerns in jurisprudence such as the relationship
between law and morality, the nature of adjudication, and constraints on
the criteria of legality are formulated and addressed.
In most cases, a dialogue begins narrowly focused on a reasonably
well-defined point (or two) of contention. In time, the discussion matures
and deepens, new issues emerge, connections with previous disputes are
revealed, and interest in well-trodden, even seemingly moribund concerns
are rekindled as they are recast in a different light and seen in a new
context. Almost seamlessly, a familiar dialogue morphs into a new one.
New players are introduced, fresh ideas emerge, and on occasion even the
most fundamental projects of jurisprudence and the methods of inquiry
into them are reassessed; in this way the field itself is reinvigorated.
It would not be unfair to characterize the original dispute between
positivists and Dworkin as a powerful but nevertheless narrowly focused
intervention in the on-going dispute between positivists and natural
lawyers about the relationship between law and morality.2 In relatively
short order what was once an intervention in one debate turned into a
broader dispute about the methodology of jurisprudence, that is whether
an inquiry into the nature of law is a project in political philosophy, social
science, conceptual analysis, or something else altogether.3 At roughly the
same time the Dworkin/positivist debate shifted focus from reconceptualizing the relationship between law and morality to exploring the most
persuasive way of accommodating the nature and scope of legal disagreement. This new focus prompted an inquiry into whether legal positivisms
alleged commitment to the conventionality of law could explain the
possibility of disagreement about the content of the convention, in other
words, whether positivism could explain disagreement about the criteria of
legality or the grounds of law.4 What was once a dispute about constraints
on the criteria of legality became a debate about the possibility of law in
the face of disagreement about what those criteria are.
Today the debate has shifted once again. The urgent question is whether
the notion of legality presupposes the existence of criteria of legality at all
2

Characterized in this way, it is natural to align Dworkin with the natural law tradition, and
many commentators have never seen him in any other way. In my view such a characterization is too crude.
3
The person most responsible in my view for the methodological turn in jurisprudence and
whose work focused attention most clearly on these issues is Stephen Perry, whose forays into
this field have not received all the attention they deserve. See especially Perry 2001, 311.
4
See, e.g., Coleman 2001b; 2001a; Shapiro 2007; see also Dworkin 1986 (discussing the
semantic sting). Dworkin also discusses these issues in his review of The Practice of Principle,
which displays, I fear, his capacity for sustained insult over his more admirable ability for
sustained argumentation (Dworkin 2002).
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and whether the projects of jurisprudence must focus on determining what


those criteria are. In a way the question is whether the distinction between
the legal and the non-legal is a matter of criteria at all. As a general matter
positivists believe it is and Dworkinians do not.
Hart and those influenced by him consider part of the project of
jurisprudence to be determining the criteria that set law apart from other
modes of regulating human affairs, for example, moral rules, informal
norms, sanctioning and pricing systems. In Harts jurisprudence, the rule
of recognition plays the role of distinguishing the legal from the non-legal.5
More generally, Hartian positivists, but not just Hartian positivists and not
just positivists either, approach jurisprudence from the point of view of
criteria: criteria for distinguishing legal from other norms, legal systems
from one another, and so on. The project begins with identifying what
activities and which institutions count as legal and therefore whose actions
can contribute to law. Then the question becomes which of these activities
contribute to law and how they come together to make law. Law is the
outcome of the process; and the focus of jurisprudence in the main is to
identify the contributors and their contributions to it.
Dworkins earliest interventions responded to similar concerns. Even
though in The Model of Rules (MOR) he objects to the positivists claim that
only rules can constitute the stuff of law as well as the related claim that
a rule of recognition or something very much like it (a Master Rule) is
necessary to distinguish rules that are legal from those which are not, he
does not resist the basic presupposition that the jurisprudential project
consists in identifying which norms can count as law and which activities
as legal (Dworkin 1978, 1446). He does not reject the project the positivists
are engaged in, only their execution of it. His view is that principles and
policies can also be binding sources of law; and their status as law does not
depend on the existence of a Master Rule that marks the border between
what is law and what is not.
Dworkin entered the debate with many of its terms already settled.
When MOR was written, to theorize about the nature of law was to focus
on criteria of legality. Because that was the accepted framework, it cannot
come as a surprise that Dworkin raised his objections to positivism within
that framework. In doing so, he appeared to accept the standard way of
thinking about the projects of jurisprudence.
For all of its importance, the publication of MOR is not a watershed
moment in jurisprudence because it is written within a framework for
approaching jurisprudence that Dworkin later rejected. And it is the
rejection of that framework that may constitute Dworkins most lasting
contribution to jurisprudence.

In playing this role, the rule of recognition also distinguishes one legal system from another.

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I have come to believe that Dworkins main point has always been that
law is not best understood in terms of criteria at all. In the first place even
though he criticized positivisms particular mode of distinguishing the
legal from the non-legal (which he identified perhaps too narrowly with
Harts rule of recognition) he never himself offered alternative criteria. This
may have been because he had no well developed view of what the criteria
of law are; more likely, it is because he never believed that distinguishing
law from non-law or legal systems from one another requires criteria for
distinguishing that which belongs to the legal domain from that which
does not.
The first real hint that Dworkin did not accept the conventional framework comes as early as the essay, Hard Cases (Dworkin 1975) in which law
is identified with the set of coercively enforceable political rights and not
with the actions or institutions that give rise to them. The same resistance
to the conventional framework is displayed in Laws Empire (Dworkin 1986)
where Dworkin (abandoning the view of Hard Cases that law is a subset of
political rights) identifies law with that set of political principles that
provides the best interpretation of a relevant set of past political acts
(of a particular jurisdiction). The shift from law-as-enforceable-political
rights to law-as-political principles is unexplained, but the difference is
less important than what remains unchanged. In neither work is the focus
of jurisprudence on identifying membership conditions.6 To fault him for
his failure to adopt this focus would be to impose a positivistic conception
of jurisprudence on him; and that, if I have interpreted Dworkin correctly,
is precisely what he means to resist.
Scott Shapiro captures this distinction between positivists (and others)
and Dworkinians in terms of an emphasis on inputs and outputs.7 As
he puts it: While legal positivistsindeed most theoristssee jurisprudence as an inquiry into the inputs of law, that is, as identifying and
theorizing about which institutions, acts, and activities are distinctively
legal and why, Dworkinians see jurisprudence as focused on characterizing
law as a normatively significant output, the inputs of which are determined
in some other way (e.g., by social science), if at all.
I think Shapiro is correct. Most legal theoristspositivists included
adopt this conventional framework. In that framework, the law of a
6
In Hard Cases Dworkin does not treat the burden of jurisprudence to be identifying the
criteria for distinguishing which norms give rise to legal rights and in Laws Empire he
abjures the requirement of specifying criteria for distinguishing those past political acts whose
interpretation is required to determine the law from those that do not call for interpretation.
See Dworkin 1986; 1975.
7
Shapiro expressed the difference this way in conversation and it has stimulated me to
reconceptualize how one should distinguish the positivist approach to jurisprudence from
the Dworkinian. I think Shapiro is basically correct, but I think that another way of putting
the difference is in terms of the centrality of criteria to jurisprudence. The two ways of
distinguishing Dworkinians from positivists come together in some of the remarks that follow.

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community is built up from some materials and not from others. The
project of jurisprudence in the first instance is to identify what stuff counts
and why; and in the second instance to explain the distinctive ways in
which law is constructed from or constituted by the relevant materials
rules, judicial decisions, and so on. The other important question of
jurisprudence is to determine what difference law, so conceived, makes or
is capable of making in normative space. Thus, there is a natural
dichotomy between the institutional/social and normative concerns of
jurisprudence. We will return to this issue later, but for our current
purposes, the important point is that for most adopting the conventional
framework, the project cannot get underway without criteria for membership, that is, criteria that acts must satisfy in order to count as contributors
to legal content.
It may well be true that at the beginning Dworkin did not contest this
framework and the approach to jurisprudence it embodies and was instead
content to raise significant doubts about the capacity of legal positivism to
execute the project in a way that would prove illuminating about the
nature of law and its place in our lives. Still, there is little question that at
bottom Dworkin rejects this entire picture and that his greatest legacy will
have been that he provided us with another avenue or approach to
consider. Roughly, in that approach we take law as something that makes
a normative difference and the first task is to characterize that difference.
In the work of Mark Greenberg, law is understood as changing what he
refers to as the moral profile (Greenberg 2007). In some of Dworkins
writings, the law creates a set of rights that are coercively enforceable. In
other parts of his work, law answers the question as to when the collective
use of force is justified.
Once the normative difference that law makes is characterized, the
theorist works backwards to identify the grounds of the difference, that is,
what acts by what processes contribute to the distinct normative difference
the law makes. The sociality and institutionality of law is characterized as
that which is required in order to explain the normative difference that law
makes.8 In order to pursue that project, we do not have to presuppose the
existence of criteria of legality or criteria for the domain of the legal.
Arguably, a dialogue that began life over thirty years ago as an intervention in the long-standing dispute about the relationship between law
8

In conversations with Nicos Stavropoulos we found ourselves agreeing on the following


way of distinguishing positivists from Dworkin. Positivists want to identify the social and
institutional stuff of law and get that right. Then they try to figure out how that stuff can
account for the difference law makes. Dworkin has a view about the difference law makes,
and the institutionality and sociality of law that is apt for law is that which is needed to
explain the difference that law makes. I think that is right. I think this is another way of
putting Shapiros point about inputs and outputs. I also think, as I argue in the paper, the key
is the difference between positivists and Dworkinians on the centrality of criteria.

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and morality is now a dispute about how to understand the project of


jurisprudence itself. The dialogue between legal positivists and Dworkin
has endured for as long as it has because each formulation of the debate
stimulated further reflections and each reflection invited further reformulations of the central issues of jurisprudence.9
And so I come to the body of this paper in which I will reflect on the
contribution of Inclusive Legal Positivism (hereafter, ILP).10 To be honest,
even capitalizing the name of the view with which I have been most
closely associated in jurisprudence11 suggests a kind of significance of the
thesis that I am unwilling to claim for it. I do not mean to trivialize ILP as
an intervention or as a contribution to jurisprudence either. In what follows
I hope to do justice to both of these sentiments by explaining the view as
I understand it, exploring its contributions to jurisprudence and identifying
some of its limitations. I then turn my attention to identifying some of the
larger issues in jurisprudence that are left untouched by the dialogues
between ILP and Exclusive Legal Positivism (hereafter ELP) on the one
hand and that between ILP and Dworkinian interpretivists on the other
perhaps the most significant of which I have already touched upon above.
The remarks that follow fall into two general categories: one focusing on
ILP and the other focusing on the central issues of jurisprudenceor at
9

Many of the dialogues in jurisprudence in which we today participate reached maturity


long before we arrived on the scene. Being able to participate in debates of such duration and
importanceboth theoretical and practicalis an honor, a privilege, and a burden. Our
greatest responsibility is to keep the dialogues alive, vibrant, and meaningful by giving
expression 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, and deep while avoiding the risk of rendering them arid and unconnected to the
experiences of all usall around the worldof living under law, and the experiences as well
of those who live without the protection of law. The second burden is more personal to each
of us and that is to determine in what ways each of us can make a contribution, however
small, to debates and dialogues so mature that the great contributors to them dwarf us. If we
have made a small contribution, helped to focus attention on an abiding concern of
jurisprudence, moved the discussion along, or broadened or deepened it, then we should be
both proud and grateful. We should be proud of our role and grateful for the opportunity this
field and this community of scholars in it has provided us. Nothing makes me prouder than
to have been a faithful intellectual servant to the field of jurisprudence and ambassador for
it. It is not for me to judge whether I have contributed anything of substanceenduring or
fleetingto the field beyond doing my best to keep it alive and meaningful and to instill in
my students a love and respect for it. That is both the least I could have done and the most
I could have hoped to accomplish. The key is to see oneself and ones interventions as part
of a dialogue with others, the aim of which is to call attention to various concerns about law
and its role in our social, political, moral, and economic lives together. The ultimate purpose
of these dialogues is to deepen our understanding of ourselves and our place in the social
world.
10
Inclusive Legal Positivism is, I believe, Wilfrid Waluchows name for this position, not
mine. See, e.g., Waluchow 1994. The position is also sometimes characterized as Soft
Positivism. I much prefer being referred to as inclusive to being referred to as soft,
though there is no denying that some consider those of us who are inclusive to be soft as in
soft headed, not soft hearted.
11
In general I am probably more closely associated with corrective justice in tort law.
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least on some of themthat are left untouched by the distinctive contribution that ILP has made. All of the arguments that follow are necessarily
compressed and somewhat sketchy as I could not hope to do full justice to
either project, let alone to both, in the context of these brief remarks.
Wherever possible I have tried to maintain a conversational tone in the
writing in order to reflect the occasion. I have sought to maintain the sense
of a public lecture in which I have been asked to reflect on the contributions ILP has made to jurisprudence and in doing so respond to those who
have been asked the same question, some of whom are inclined to the view
that ILP represents a great achievement in jurisprudence, others of whom
are convinced it is of no significance at all, and others still whose own
accounting reckons both its virtues and limitations. Without giving away
too much of what is to follow, I fall squarely in the latter group, though I
may be more skeptical of ILPs overall importance than are others. I would
like to believe my skepticism is owed to modesty, but I am inclined to think
it is an unavoidable consequence of scholarly integrity. If so that is good
enough for mein fact, it is better.12
2. Inclusive Legal Positivism: The What and Why of It
ILP began life as an intervention in the Hart-Dworkin debate, in particular
as a response to Dworkins objections in The Model of Rules (Dworkin 1978)
(hereafter, MOR). In MOR Dworkin characterizes Harts positivism (and
positivism more generally) in terms of four basic tenetsall of which will
be familiar to most readers of this journal:
1) Legal norms are rules.
2) Legal rules are distinguished from other rules by their being picked
out as such by a rule of recognition (ROR), which Dworkin calls a
Master Rule.
12
I am honored by the participation of so many distinguished legal philosophers in the
conference on my contributions to jurisprudence, many of whom I know well and others of
whom I had not met before and all of whom I greatly admire. I am especially grateful to the
organizers of the conference and to the journal, Ratio Juris, for publishing the proceedings. I
had given a lot of thought to the form my response to the essays should take. It became
clear to me early on that this was not the occasion to respond individually to each piece,
especially given how diverse the contributions are. I could not have done justice to each and
every essay in the context of a coherent and readable essay, let alone one that sought to make
a contribution of its own. In the end, I decided that the best way to honor the contributions
of others is to do what I could do to keep the dialogues in which we all participate alive and
well. Accordingly, in this essay, I have chosen to reflect on what I take the contributions of
ILP to be and to see if I can take some preliminary steps in moving the debates surrounding
ILP forward. In future essays and in my next book I hope to have occasion to respond more
directly to the particular points that various of the contributors have made both for and
against my views. For now, I thought the best way to keep the wonderful collective spirit of
the conference alive was to try my hand at what we all hope in our work to accomplish, that
is, making some contributions to the field we hope our work honors.

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3) There is no necessary connection between law and morality. I and


others have come to call this the Separability Thesis (ST).
4) The discretion thesis (DT).
Beginning with doubts about DT, the argument of MOR seeks to undermine all four of these tenets. DT relies on the idea that in hard casesthose
in which law runs out or in which there are gaps in the lawjudges must
appeal to non-legal, that is, optional or discretionary, standards.
Many of the standards judges apply in hard cases are moral principles
(or social policies). Dworkin notes that judges do not treat such standards
as optional for them and he takes there be no reason why we should
discredit this phenomenological evidence. The plausible inference to draw
therefore is that at least in hard cases moral principles can be legally
binding on officials. If they are legally binding then they are part of the law
of the relevant jurisdiction. If this argument is sound, several problems
emerge for Harts positivism.
Principles are not rules. If principles are or can be binding law, then it
cannot be true that all laws are rules. In that case, (1), the model of rules
fails. If such norms are law, their status as such depends on their content,
that is, on the fact that they express a demand or dimension of justice or
fairness. Their legality does not depend on their being identified as such by
a rule of recognition. This means that (2), the rule of recognition, fails as
well. Moreover, if moral principles are or can be legal norms, then there
cannot be the kind of separation of law and morality that the separability
thesis envisions. In that case, (3), the separability thesis, fails. If moral
principles can be binding on judges and not optional for them, this
suggests that where positivists see discretion, the better view is that there
is binding law. Thus, (4), the discretion thesis cannot be sustained. In short,
if we accept the phenomenological evidence as decisive, then all four tenets
of legal positivism must be abandoned. This leaves legal positivism
without, so to speak, a leg to stand on.
Legal positivists have pursued three lines of response to these objections.
The first and least interesting resists the pull of the phenomenological
evidence. The idea is that, given the nature of her role, a judge is unlikely
to treat the grounds of her decision as optional rather than as binding. It
follows that the fact that judges write as if the norms to which they appeal
are binding and not optional does not help us decide whether they are.
That will depend on the best theory of what law is and not on the
superficial evidence provided by judicial opinions.
The other two lines of response ultimately separate legal positivism into
what we now think of as ILP and ELP. Common to both is the insightful
and altogether persuasive distinction drawn by Joseph Raz between standards that are binding on judges and those that are binding in virtue of their
being part of the law of the judges jurisdiction (Raz 1970, 296). For example,
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in a conflict of law case, the law of a foreign jurisdiction, F, may apply and
be binding on a judge in jurisdiction, H, but that does not render the law
of 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 agents
authorized to act in F to make and change its law and that no one in H has
the authority to do so. Raz is right that one cannot infer that moral
principles are law from the fact that they are binding on legal officials. On
the other hand, one cannot conclude that moral norms are not legal norms
either. Razs distinction does not settle the matter of whether such principles are part of the law, and it is in responding to this question that
positivists have split with one another.
Many commentators identify the beginning of ILP with my essay,
Negative and Positive Positivism. The gist of the argument in that essay is
that one can accept all of Dworkins presuppositions about the legality of
moral principles and yet resist his conclusion that legal positivism must be
abandoned (Coleman 1982, 139). Before Negative and Positive Positivism,
some legal positivists like David Lyons and Rolf Sartorius responded to
Dworkins objections by noting that positivism has no problem with moral
principles counting as law provided their status as law depends on certain
institutional facts about them and not on their content: That is, not on the fact
that they express requirements of morality.13
This line of response is not persuasive, nor is it adequate to meet
Dworkins challenge, which is designed to show that some moral principles are law in virtue of their content or moral merits. I took myself to
be addressing more directly and persuasively Dworkins more worrisome
objection in Negative and Positive Positivism. Using Harts notion of a rule of
recognition, we might simply say that moral principles can be legally
binding in a jurisdiction if there is a clause in the rule of recognition to that
effect. Such a clause might make institutional features or substantive
features of moral principles decisive. What matters is not the nature of the
norm whose legality is in question, be it moral or otherwise, nor which
properties of the normsinstitutional, social or substantivefigure in
determining its legality, but the content of the rule of recognition.
A rule of recognition exists when the relevant officials apply certain
standards for assessing the legality of conduct and adopt a critical reflective attitudewhat Hart referred to as the internal point of view
towards their doing so. If the relevant officials treat a clause specifying
certain conditions of substantive morality as conditions of legality as part
13
Positivism has no problem with moral principles being law if they are law in virtue of
something other than their moral content. Presumably, the thought is that it would violate
the ST if the legality of a norm depended on its merits because this understanding of legality
would threaten to erase the distinction between what the law is and what it ought to be, a
distinction that is, some have thought, the very heart of legal positivism. Lyons 1977, 415, 426
(reviewing Taking Rights Seriously); Sartorius 1971, 1534.

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of the norm they apply in assessing conduct, then it is plausible that such
a clause is part of the relevant rule of recognition. If so, then moral
principles are law of the relevant jurisdiction; and their status as such
depends on their content only insofar as the rule of recognition makes the
content of such norms a condition of their legality.14
3. Inclusive Legal Positivism: The Jurisprudential Value of It
I believed then and continue to believe that the basic argument of Negative
and Positive Positivism is decisive against Dworkins objections to Hart in
MOR. On the other hand, I do not think that the ultimate value of my
intervention has much to do with the role it played in fending off what
some took to be devastating objections to legal positivism. Quite the
contrary. 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 and
sustaining a series of discussions that helped to focus attention on
several issues of more fundamental importance than the concerns ILP was
itself designed to address. These include especially:
1) The relationship between authority and law.
2) The relationship between coercion and legality.
3) The nature and scope of meaningful disagreement in law, especially
disagreement about the criteria of legality.
4) Whether the domain of legality presupposes criteria for distinguishing the legal from the non-legal?
5) The methodology appropriate to Jurisprudence.
6) The difference between determining what the constituent elements of
law are and what judgments we can make about law and what
impact law makes in normative space.
Some of these concerns are familiar and there is no need to elaborate on
them. The way I have expressed others requires considerably more elaboration and the contribution ILP makes to them is less immediately clear.
I do not suggest that these issues would not have emerged but for the
introduction of ILP; that would be far too strong a claim to make. My view
is the rather different one that the introduction of ILP and subsequent
discussions of its merits have been part of the process of drawing the
attention of jurisprudence scholars to these (more pressing and fundamental) issues. To me, it is in this capacity that ILP has established its real
14
The key to my intervention was not challenging the most contestable premise in Dworkins
argument. In contrast to other positivist-inspired responses to Dworkins objections, mine
allowed that the moral content of the principles could be part of the grounds of their
constituting law.

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legacy. For that reason, but not just for that reason, I want to present my
sense of how ILP helped to shape these current debates and to draw
attention to those issues, which are left untouched by the truth or falsity
of the central claims that ILP makes.
4. Law and Authority
There were two different kinds of objections raised to my claim that
morality could be a condition of legality. One set of objections argued that,
properly understood, legal positivism itself imposes constraints on the
conditions of legality and that those conditions preclude the ILP solution.
Other objections to my view were designed to show that the nature of law
or features of our concept of it preclude the ILP solution.
The most familiar objection of the first sort relies on the claim that for
positivism law is a matter of hard facts. I never understood the distinction between a hard and a soft fact (other than epistemically as expressing
degrees of confidence one could have in putative facts), but I think we can
add some clarity to the discussion by substituting social facts for hard
facts. The claim then is that legal positivism is committed to the law
consisting only of (or in) social facts. The contrast is between social and
normative facts. The objection then is that legal positivism requires that
law be a matter of social facts (and not normative facts or a combination
of social and normative facts). Since ILP allows that moral facts can be
legal facts or criteria of legality, it violates the hard facts or social facts
requirement.15
There are many reasons not to be persuaded by this objection but the real
problem is that there is nothing in legal positivism that implies that legal
facts must be social facts. There is an argument for the claim that legal facts
must be social facts, but it does not proceed from claims about the nature
of positivism but from a claim about the content of the concept of law (Raz
1996; 1985). This is Razs argument from authority for the Sources Thesis:
1) Law necessarily claims to be a legitimate authority.
2) The claim to being a legitimate authority is not incoherent, but it can
be false.
3) Because it is not incoherent it cannot be necessarily false.
4) Therefore, laws claim could be true even if it is always false.
5) Thus law must be the sort of thing that the claim that it is a legitimate
authority could be true of.
6) Were the content or identity of law to depend on moral facts, its claim
to authority would be necessarily false.
15
I imagine that is why some refer to it as soft positivism and why others resist calling it
positivism at all. I cant say I am moved by these concerns or drawn to these characterizations.

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7) Therefore, the identity and content of law cannot depend on moral


facts.
8) Therefore, the identity and content of law must depend on social
facts.
9) Therefore, all legal facts must be social facts.
I may not have put the argument as others would have, but everyone in
jurisprudence is familiar with it in one form or other. This is the argument
from authority the conclusion of which is the Sources thesis: The claim that
the identity and content of law must be determined by social facts.
One important role that the argument from authority plays is that it
completes Razs response to Dworkins initial objections to positivism.
Razs response has two parts:
(a) Moral principles can be legally binding without being part of the law
of the jurisdictions in which they bind.
(b) Moral principles can be legally binding but they cannot be part of the
law of the jurisdictions in which they bind.
All positivists accept (a). Indeed, no jurisprudential theory would serve its
cause well by denying (a). For Raz, the argument from authority entails the
Sources thesis which in turn entails (b). If correct (b) undermines completely the argument of MOR. (b) defines ELP. If correct (b) also undermines ILP.
Most commentators interpret the argument from authority as authorizing a characterization of legal positivism that contrasts with ILP. This is a
mistake. The argument from authority proceeds from a claim about the
concept of law, and if sound, it establishes a claim about the nature of law,
and not a claim about the nature of legal positivism. The argument from
authority is designed neither to defend nor to define positivism, but to
reveal something true and important about law. If anything, it entails that
law must be as legal positivists (independently) say it is. Its conclusion is
not that ILP is an inadequate version of legal positivism. If sound, its
conclusion is that ILP is an inadequate theory of law.
Given its importance, it is no surprise that the argument from authority
has been the focus of a great deal of critical discussion. I have not been
persuaded by the argument from authority, but that can hardly come as a
complete shock since, if sound, it would have put me out of business. My
skepticism has two sources, one pertaining to the arguments validity, the
other to its soundness.
The argument from authority relies on establishing a subsidiary conclusion to the effect that if one has to appeal to moral principles or facts in
order to determine the identity or content of law, then one vitiates laws
claim to authority. If every effort to identify a legal directive requires an
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appeal to moral facts or principles, every legal directives claim to being an


authoritative directive is rendered necessarily false. That in turn would be
incompatible with the seemingly harmless requirement that even if claims
to authority are invariably false, they cannot be necessarily false. And that
would be a problem. The argument for the subsidiary conclusion proceeds
roughly as follows.
A person asks herself, What ought I do? The answer depends on what
the balance of reasons requires. Individuals can often adequately assess the
balance of reasons. When they are not sure they can seek the advice or
guidance of others. They can also substitute an authoritys judgment for
their own. It is rational to take that tack only if one has sufficient grounds
for believing that one will do better in complying with what the balance
of reasons requires by acting on the authoritative directive than one will do
by acting on ones own assessment of what reason demands. It is natural
then to define an authority as legitimate (for particular persons over some
domain of activity) if and only if those to whom the authoritative directives
apply will better comply with the demands of reason by acting on its
directives than by acting on their own assessment of the balance of reasons.
In the typical case the authority and the agent are confronting the same
set of reasons trying to determine what those reasons demand. These are
commonly referred to as the dependent reasons. Since these reasons
determine what one ought to do, it is natural to think of them as moral
reasons. When one accepts an authority, one substitutes the authoritys
judgment of what these reasons require for ones own assessment.
However, if an agent addressed by an authoritative directive must appeal
to the set of dependent reasons in order to determine what the directive is
or what it requires, he thereby undermines its authority. The directive is
not thereby capable of mediating between the agent and the reasons that
apply to him. Determining what the directive is and what it requires turns
out to require him to engage in the very balancing of reason that the
authoritative directive was to do instead. In order for the laws claim to
authority to be coherent, the directives and their content must be accessible
to agents by considerations other than the set of dependent, that is, moral
reasons. That cannot be the case if moral facts (reasons or principles) are
conditions of legality. Thus, the possibility of legitimate legal authority
precludes the possibility that moral principles are legal norms. More
generally, it precludes the possibility of moral facts contributing to legal
content.
Even if sound, the argument proves less than advertised. At most it
shows that the possibility of legitimate legal authority implies that those
governed by authoritative directives cannot appeal to those moral principles on which the authoritative directives rely. It does not preclude
appealing to other moral principles or facts in order to determine which
norms are part of a jurisdictions law. The argument from authority does
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not therefore preclude morality from being a condition of legality nor does
it preclude moral principles from constituting legal norms.
I have also urged the distinction between the determinants of legal
identity or content and the various means of determining legal identity or
content. The argument from authority uses the latter notion in its premises
but draws conclusions about the former. If sound, the argument from
authority implies that one cannot appeal to the dependent reasons in order
to identify or determine the law or what it requires. It does not establish that
dependent reasons (moral facts) cannot be among the determinants of legal
content. The argument from authority does not undermine ILP.
Moreover, it is not clear that the claim to being a legitimate authority is
a feature of our concept of law and thus a necessary truth. It is even less
clear that such a claim is distinctive of law; and there is no reason to
suppose that it is unique to law. More importantly, it is not obvious that
the claim to being a legitimate authority could not be necessarily false. To
be sure, the claim is not incoherent and thus it is not necessarily false in
virtue of it being incoherent. Though coherent, the claim could nevertheless be necessarily false, as it would be, for example, were anarchism true.
The possibility of anarchisms being true implies that the claim to legitimate authority could be necessarily false since the concept of anarchism
involves the rejection of the possibility of legitimate authority.
Finally, the argument from authority rests on a particular conception of
authority, and not on the concept of authority itself. Raz claims that his
service conception of the function of authorities (Raz 1985, 21) elucidates
our ordinary notion of authority, but I am not so sure. For Raz, authority
is a relationship between reasons and persons. Because Raz views authorities as mediating between persons and the reasons that apply to them, it
should come as no surprise that he regards the legitimacy of authority as
determined by the service conception.
I worry that the service conception does not capture the ordinary notion
of authority, which to my mind is a relationship primarily between or
among persons (and institutions and persons) and not a relationship
between reasons and persons. The claim to authority is, I believe, to be
understood in terms of a relationship of standing. One who has authority
stands in a particular relationship, not to reason, but to other persons. To
have authority is to have standing. That standing is constituted by distinctive powers, depending in part on the kind of standing it is. In the case
of political authority, it is standing to issue directives that change what
those over which one has authority have reason to do. This is all very
rough of course since I am not here offering a full account of the nature and
content of the powers that partially constitute the notion of political
authority. I am instead simply entertaining the idea that authority relationships are between persons and involve the notion of standing and,
accordingly, may not be relationships between persons and reasons.
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My aim is not to establish that Raz is wrong about the nature of


authority. Rather, my point is more modest. I mean to show that the
argument from authority rests on a distinctive conception of authority that
may well not be our ordinary one. I am inclined, moreover, to read Raz as
offering a revisionist conception of authority. Once we understand that the
claim to authority is grounded in service or the instrumental efficacy of
directives, we will abandon (or we should abandon) our ordinary conception of authority as involving the idea that authority is a relationship in
which one has a standing over another.16
5. Law and Conventionality
Dworkin has pursued a number of different lines of attack against ILP. In
the end, they all revolve around the conventionality of law. All take for
granted that we should understand legal positivism in terms of a rule of
recognition, and that positivists are committed to understanding the rule of
recognition as a convention. With these assumptions in hand, Dworkin
offers a number of different objections, but the following three are the most
interesting and important:
1) If the rule of recognition is a convention it cannot explain the duty of
officials to comply with it.
2) If the rule of recognition is a convention then it cannot account for the
nature and scope of disagreement about law.
3) The rule of recognition is not a convention.
Is the rule of recognition a convention? In a way the question is ambiguous
between two very different claims: One is that the rule of recognition is
conventional and the other is that it is a convention. At one point both Gerald
Postema and I (separately) suggested that the rule of recognition is a
Lewis-like convention (Coleman, 1982; Postema 1982). I cannot attest to
16
I have pursued this discussion of the concept of legitimate authority to emphasize the point
I have been making from the outset, namely, that the major contribution of ILP is that it has
helped focus attention on central jurisprudential concerns including the relationship between
the nature of law and the nature of authority. I hope the above discussion gives some credence
to that claim. The argument from authority is merely one of a family of arguments designed
to show that ILP rests on a confusion or mistake or that it is inconsistent with other important
features of law. Scott Shapiro has offered several different lines of attack against versions of
ILP. In Harts Way Out, he argues that Harts commitment to what he calls the practical
difference thesis is incompatible with Harts adopting ILP; Shapiro 1999, 454. And in his
contribution to this symposium he argues more generally that ILP is incompatible with the
law as plans. The argument is powerful and valid but relies of course on the controversial
claim that laws are plans. I could not possibly hope to do justice to Shapiros powerful
arguments in this context. My claim is not that ILP is correct, but only that no argument
against it has succeeded. Perhaps Shapiros will, but that will depend on his demonstrating
that laws are plans first. See Shapiro 2002, 387.

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Postemas motivation for doing so, but I can speak to my own concerns
and motivations. I was worried about how positivism could explain the
normativity of law. In The Concept of Law, Hart implied that all legal rules
were social rules and that this fact about them allowed his view to explain
the aptness of obligation when talking about the role of law in normative
space. He was contrasting his view with the command theory whose
impoverished set of resources left it unable to distinguish being obligated
from being obliged.
The first problem with Harts account is that it is not true that all laws
are social rules. In fact for Hart only one legal rule must be a social rule
and that is the rule of recognition. The rule of recognition is supposed to
be binding or obligatory for those governed by it, namely, officials. And so,
I worried, how can social rules ground obligations? What account could
one give of the rule of recognition that was sympathetic to its being a social
rule and at the same time explaining how it could be a source of reasons
for those governed by it? I thought the problem could be solved if the rule
of recognition were a Lewis-convention. Such a convention is a Nash
equilibrium, which means that every person governed by it would have a
reason to comply with its demands in the sense that no person would have
a reason unilaterally to defect, that is, not comply. All would have reason
to comply provided that others complied as well.
However imaginative and well motivated my suggestion was, it was
implausible and less helpful than I had hoped. A convention is a solution
to a distinctive kind of coordination game. These games are defined by the
preference structure of participants. Other orderings of preferences are not
coordination problems and their solutions are not conventions in the
relevant sense. This fact about coordination games proved to be my
arguments undoing.
Hart holds that a rule of recognition is a necessary feature of law; there
is no law without a rule of recognition. Were I correct in thinking that the
rule of recognition is a Lewis-convention, it would follow that law could
exist only if a Lewis-convention exists. That implies that law could exist
only if the preferences of the relevant officials, including judges in particular, were aligned as a formal coordination problem to which Lewisconventions are a solution. That implies that officials having preferences
exhibiting a certain structure is a necessary condition for the existence of
law. And that, I fear, is not a plausible existence condition of law.17 Of
course it is possible that judges have preferences structured in a way that
defines a coordination problem. It is possible, but not likely, that this
happens often. It is even possible, but wildly unlikely, that this happens all
the time. What is not plausible is that their having preferences structured
in this way is a necessary condition of the very possibility of law.
17

This is the gist of Scott Shapiros objection.

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Although the idea that the rule of recognition is a convention has turned
out not to be particularly helpful, once it took hold it was nearly impossible to dislodge either positivists or their critics from it. No one has been
happier saddling positivism with the view that the rule of recognition is a
convention than Dworkin, and I cannot blame him for taking advantage of
the fact some positivists have been slow to run from it while others have
embraced it.
If the rule of recognition is a convention, how are we to explain it as a
source of judicial obligation? Dworkin poses the problem in a way that I
like to think of as a dilemma: If the rule is a convention, then the scope of
the duty it imposes depends on its content, and its content in turn is fixed
by the scope of convergent behavior. Where convergent behavior runs out,
so too does the convention; and where the convention runs out, so too does
the 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 with
too little content and therefore not enough constraint or obligation
under it.
On the other hand, judges can disagree about what the rule requires of
them. Theirs cannot be a disagreement about what they converge on. By
definition it is a disagreement about what they do not converge on and
about what the rule requires. If that is so, then the duties the rule imposes
on them cannot be fixed by the scope of their convergent behavior. This is
the second horn of the dilemma. If the rule of recognition is a dutyimposing rule it cannot be a conventional rule, it must be a normative rule.
Either the rule of recognition is a convention, in which case it specifies
too little by the way of judicial constraint and cannot make sense of
disagreement about its content; or it can explain the full scope of judicial
duty as well as meaningful disagreement but it cannot be a convention. In
his earlier work Dworkin thought that this meant that the rule of recognition must be a normative rule. Later on he simply rejected for related
reasons the very idea of a rule of recognition and introduced the notion of
constructive interpretation that forsakes (as we shall see) the idea of criteria
of legality altogether.18
18
Ultimately, as I have suggested, Dworkin rejects the idea that law involves the notion of
criteria. He develops most of his arguments in the context of offering objections to legal
positivism. He invariably characterizes legal positivism in terms of a rule of recognition, but
more generally in terms of a commitment to the conventionality of law. The commitment to
the conventionality of law is expressed in terms of the criteria of legality. The criteria of
legality or law are determined conventionally or set out in a convention (that is at the
foundation of lawparadigmatically, but not necessarily, in a rule of recognition). I mention
this because the notions of conventionality and criteria of legality are often lumped together
both for the positivists and for Dworkin. His ultimate target, I believe, is the idea of criteria,
but much of his well known attack is on conventionality. On my reading, those attacks on
conventionality are best seen as either indirect ways of attacking the notion of criteria or as
brush clearing necessary to face the notion of criteria straight on. Many of his concerns about
criteria then are approached through objections to conventionality. His arguments therefore

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6. From Doubts about Conventions to Doubts about Criteria


The reader may recall that Dworkins first worries about the conventionality of the rule of recognition arose in response to my suggestion (the
core claim of ILP) that the rule of recognition could specify morality as
a condition of legality. Dworkin claimed that morality could not be a
condition of legality for two reasons. First, he held that legal positivism is
committed to law consisting in hard (not soft) facts and morality is a soft
fact (though those of us who find its demands quite hard sometimes would
disagree). I have already expressed my views about this very implausible
line of objection. Second, he suggested that there is too much disagreement
about what morality requires for morality to be a condition of legality
within the structure of a rule of recognition that is a convention. In other
words, judges asked to impose moral constraints on legality will exhibit
too much disagreement in their conduct for the rule that imposes the duty
on them to do so to constitute a social rule, that is, a rule constituted by
widespread convergent behavior.
This objection cuts no ice. My response (which is one of the few
responses to an objection about which I remain totally convinced) is that
the rule of recognition requires that officials converge on applying relevant
moral standards to assess legality, not that they agree on what applying
those standards requires in particular cases. Convergence on the criteria is
perfectly compatible with widespread divergence on what falls under it;
the former (convergence on criteria) and not the latter (convergence on
application) is required by the conventionality of the rule of recognition.
This response is entirely convincing, but it merely set the stage for
Dworkins deeper concern, which is that if the criteria are fixed by
agreement among officials, there is no way to make good sense of possible
disagreements among them about what the criteria are. Yet disagreement
about the criteria of legality or the grounds of law is a salient feature of
legal practice and certainly one that any plausible theory of law must
account for. Since conventions are fixed by shared behavior among the
officials, they cannot exist if there is disagreement about what the content
begin by associating criteria of legality with the existence of a convention that fixes what those
criteria are. The criteria of law (in a community) are expressed in a convention, which is to
say that they are fixed by the convergent behavior of the relevant officials. If agreement
among officials fixes the criteria of legality then it is impossible to explain disagreement
among officials as to what those criteria are. Positivism can explain disagreement about which
norms satisfy those criteria, but it cannot countenance meaningful disagreement as to what
those criteria are for the simple reason that the criteria are themselves fixed by agreement.
So what we want to do now is trace how the worry about conventionality and the rule of
recognition ultimately became a much deeper worry about the centrality of criteria themselves. I want to do this by demonstrating the important role ILP played in ultimately moving
the debate beyond its initial boundaries to much more significant issues that are left
untouched by ILP but whose place in the limelight of jurisprudence owes at least something
to the contribution made by ILP.
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of the convention is. Thus, its commitment to conventionalism renders


positivism unable to explain the nature and scope of legal disagreement.
Obviously, this objection rests on how we understand the relationship
among three different ideas: conventionality, criteria, and convergence of
behavior. We cannot assess it, however, until we clarify these notions and
especially their relationship to one another. Lets see if we can provide at
least some of the needed clarifications. I put the following distinctions in
terms of rules of language in part to set the stage for the discussion to
follow of the so-called Semantic Sting.
1) Content claims:
(a) The content of a conventional rule is fixed by the scope of
convergent behavior among those governed by the rule.
(b) The content of a conventional rule is fixed by social facts about
the behavior and attitudes of those governed by the rule.19
2) Knowledge or access claims:
(a) With respect to a term or concept, competent speakers of the
language each have access to the criteria specifying its proper use
in the sense that each speaker knows or has personal access to
those criteria. (Individual Criterialism).
(b) With respect to a term or concept, competent speakers of the
language have access to the criteria specifying its proper use in
the sense that there are experts in the linguistic community who
know the criteria and the best explanation of the linguistic behavior of competent speakers more generally requires attributing to
them the intention when using the term to be referring to those
criteria. (Community-wide CriterialismDivision of Linguistic
Labor Criterialism).20
3) The existence claim:
19
It may be easier to see what I have in mind if we shift focus from law to language. How
might we make out a conventionalist view of language (use)? One view might hold that the
content of the rules governing linguistic usagewhat the language rules permit or prohibit
are fixed by convergent usage. Where there is divergent behavior, there is no rule. Another
view might hold that whatever the rules require, they are the rules that govern because they
are 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 rules
as standards by which the linguistic behavior of language speakers is assessed. The latter is
the more plausible interpretation of the claim that language is conventional. Ordinary
speakers of the language generally converge in their adoption and use of certain rules
governing the use. These standards are implicit in their speech and are made explicit on
occasions when they are required to explain their linguistic behavior or to criticize the
behavior of others. It is ludicrous to think that competent speakers of the language can
express the content of the rules; and there is even less reason to suppose that the content of
those rules is fixed by the extent to which their linguistic behavior converges.
20
The criteria are fixed 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.

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(a) The existence and endurance of a conventional rule depends on
its being practiced (and other possible conditions).21

Dworkin attributes to positivism a conventionalism about the criteria of


legality that consists in the conjunction of (1)a and (2)a.22 To see this, one
need only revisit the notorious semantic sting argument in Laws Empire
(Dworkin 1986, 45). The semantic sting argument begins by attributing to
legal positivism a semantic project such that legal positivism is the view
that the aim of jurisprudence is to provide a theory of the meaning of the
term (or concept) law. A positivist theory of law is a theory of law. This
is not a promising beginning.
Dworkin goes on to argue that legal positivists are not only committed
to providing an account of the meaning of law but that they hold that
the meaning of the term law is fixed by criteria specifying its proper use.
Those criteria are a set of necessary and sufficient conditions and are
shared by competent speakers of the language. The criteria are fixed by
shared usage to which competent speakers have access. The philosophical
project of jurisprudence is to uncover the criteria for the proper application
of law by exploring ordinary usage, reflecting on it, and systematizing it.
The gist of the semantic sting now follows naturally from these two
central attributions. If the criteria of law are fixed by usages that are
shared by competent speakers of the language, then they cannot meaningfully disagree about what those criteria are. Dworkin then notes, quite
correctly, that a salient feature of law (not law mind you) is that
competent lawyers and officials disagree about the criteria for being the
law of a particular community. Disagreement about the criteria of law is a
salient feature of legal practice that legal positivism cannot account for in
virtue of its conventionalism/criterialism. This is just another way of
expressing his attribution of (1)a and (2)a to legal positivism. Both are
necessary to generate the sting; the absence of either renders it harmless.
As Ori Simchen and I demonstrate in Law (Coleman and Simchen 2003)
Dworkins semantic sting argument is invalid and unsound at best, and
probably a non-sequitur as well. In the first place, it draws a conclusion
about the criteria for law from an insight about the criteria of law. It
claims that judges disagree about the criteria for a norm constituting law
in their jurisdictionwhich is trueand infers from that they disagree
about the criteria for the proper application of the concept or term law.
If they agree about the criteria of law then such disagreement would be
impossible.
21
Harts notion of a rule of recognition is a useful illustration: the rule exists when it is
practiced, that is, there is sufficient convergent behavior and a critical reflective attitude
toward that behavior.
22
In contrast, my view is that conventionalism about language (or law) consists in the
conjunction of (1)b and (3).

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This is seriously confused. For it is perfectly compatible with criterialism


about law that lawyers disagree about the criteria of law. It may well be
that part of the criteria of law that all competent speakers of the
language share is that law is a way of regulating human affairs distinguished (among other things) by the fact that lawyers and judges disagree
about what the criteria for a norms being law in their community are.
Disagreement about the criteria of law is part of the application conditions, that
is, the criteria of law that competent speakers of the language share.
Next, lets consider Dworkins attribution of (2)a to the positivist.
Readers familiar with our paper know that we argue that the reference of
law is not fixed by criteria of any sort, but lets ignore that for a moment
and allow Dworkins ascription of some or other form of criterialism to the
positivist. He attributes individualistic criterialism to the positivist, which
he must do in order to render the possibility of meaningful disagreement
a problem for them. In fact, however, individual criterialism is apt only for
certain terms in a natural language (one-criterion terms like sow) and
law is not among these. If the reference of law is fixed by criteria (and
it is not), the notion of criteria that is apt is community-wide criterialism
which relies on Putnams notion of a division of linguistic labor ([2]b
above).
Finally, meaningful disagreement is rendered impossible by attributing
to legal positivists (1)a, but this is wildly implausible. Those who adopt the
view that certain rules are conventional mean to claim the conjunction of
(3) and (1)b. The existence of the rule as a standard depends on the
existence 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)band
not, by way of contrast, moral or other normative facts.23
There is no problem at all in comprehending the possibility of meaningful disagreement about the criteria of legality. The content of the criteria
are determined by facts about behavior and attitude, but not in the crude
way that Dworkin attributes to legal positivists in which the content is
fixed narrowly by the scope of convergent behavior. Just think how odd
that view would be in the context of conventional rules generally, including especially the conventions governing linguistic usage. Finally, to the
extent that convergent behavior figures in the characterization of conventional rules it bears on their existence and endurance, not on their
contentat least not on their content as in (1)a or (2)a.
23
So when someone claims that the rules of language use are conventional, he means to say
that what they are depends on what people do, but, how it is that what they do determines
the content of the rule is itself a matter of great theoretical interest. In other words, how social
facts make social rules is a matter of interest and disagreement. The claim of conventionalism is the claim that such facts are the constituents of such rules and the plausibility of
conventionalism ultimately depends on the plausibility of that claim. For some doubts about
positivist accounts of how facts make law, see Greenberg 2004.

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I dont think that Dworkin has made the headway against legal positivism that he thinks he has. Even were positivists committed to (1) the
impossibility of law without criteria of legality, (2) conventionalism about
the foundations of law, and (3) the view that the criteria of law are
expressed in a convention at the foundation of law,24 Dworkins arguments
would not prevail. Positivism would be quite capable of providing an
explanation of how meaningful disagreement about the criteria of legality
is possibleor so I have just argued.
Dworkins argument against positivism serves a strategic role in his
overall argument that is (fortunately) unnecessary. The strategy of Laws
Empire takes the form of a disjunctive syllogism: Jurisprudential theories
are either interpretive or semantic; the semantic sting shows they cannot be
semantic; therefore, jurisprudential theories must be interpretive. That
argument is invalid, but its invalidity has no bearing on the value or
interest of the interpretivism that Dworkin offers.
Relatedly, and to my mind, more importantly, Dworkins real target is
not semantic theories of law or even conventionalism about law. It is much
bigger and more important. His target is the very idea that thinking about
law commits us to thinking in terms of criteria of any sortwhether
criteria distinguishing the legal from other domains, or criteria for distinguishing the law of this community from the law of other communities. It
is to this feature of his view that I want to turn in the next section.
7. Beyond Criteria of Legality
One cannot have a sustained dialogue without treating some features as
fixed in the course of focusing on others. In order to introduce my claim
in Negative and Positive Positivism (Coleman 1982) that legality could be a
criterion of legality, I had to take as given the other central features of the
Hartian framework. Over time, I was entrapped by them, especially the
rule of recognition and the separability thesis. Initially I was trapped
because I was offering a way out for Hart and so I had to offer my
suggestion within the Hartian framework. I could not shake loose the rule
of recognition because I formulated ILP in such a way that it depended on
the existence of a morality as a condition of legality clause. I was trapped
by the separability thesis because I was challenged to show that ILP was
consistent with the separability thesis.
As it happens, I reject both the rule of recognition and the separability
thesis. In what follows I explain my doubts about both and then formulate
the central claim of ILP without relying on either notion. One consequence
24
Hart is committed to all three of these, but positivists in general are not. Raz in particular
is committed to (1) but to neither (2) nor (3). I am not sure that I would accept either (1), (2),
or (3). To see why see infra.

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of abandoning the rule of recognition is that it has allowed me to rethink


the very idea of criteria as central to law. This is a point I mentioned
already in reference to Dworkin and in what follows I hope to say a bit
more about itall of it tentative, I fear, and far from convincing.
I begin by raising a few concerns about the rule of recognition. One way
of reading Hart is to treat the rule of recognition as a conceptual requirement of our capacity to speak meaningfully about law. We cannot make
sense of a domain of activity called law without presupposing some notion
like that of a rule of recognition: a rule that sets the boundaries between
law and other ways of regulating human affairs such as morality, and
pricing mechanisms.
I have a couple of worries about this way of thinking, however. I owe
my doubts to my reflections on Raz and Dworkin. Let me explain.
As I read him, Raz is committed to the concept of criteria of legality.
After all, the argument from authority is all about exploring constraints on
the criteria of legality. Raz also refers to rules of recognition but he is
nowhere committed to anything like Harts notion of a rule that unifies a
legal practice and distinguishes legal systems from one another. So, even
if Raz is committed to criteria of legality and to rules of recognition, he does
not embed the notion of criteria of legality in the concept of a rule of
recognition in Harts sense of the term.
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., the
claim to legitimate authority) and constraints on criteria of legality. He has
little if anything to say about the sources or grounds of the criteria, that is,
how they come to be the criteria in a particular community. The useful
contrast here is with Hart whose rule of recognition is an account of the
foundations or grounds of the criteria of legality. Hart thinks it imperative
to introduce a rule of recognition in order to speak meaningfully about law
because the domain of the legal presupposes criteria of legality and those
criteria must be understood in terms of a rule of recognition.
As I am reading him, Raz agrees with Hart that in order to speak of
legality we need to presuppose that there are criteria of legality, but he
disagrees with Hart in that he sees no philosophical need to explain the
origin or ground of those criteria. Instead, we have to understand whether
other features of the concept of the legal impose constraints on what those
criteria can be. That is the concern of jurisprudence.
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 existence
of criteria of law or of legality is a presupposition of the possibility of law
or of the legal domain we do not need to posit anything like Harts notion
of a rule of recognition. On the other hand, I think Hart is on to something
about the sociality of law that is missing from Razs account. Whatever the
problems with Harts notion of a rule of recognition may be, one of its
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great values is that it identifies law with a kind of coordinated social activity.
I am not sure that Hart is right to have focused narrowly on judges any
more than he is right to have focused on a rule of recognition as a way of
articulating the notion of criteria of legality. I do think he has an insight in
thinking that we do not grasp what law isand our theories of it will fall
shortif we fail to identify the distinctive social aspects of it. The relevant
social aspects of law are those at its foundation, specifically, its organizing
and coordinating social foundation.
It is possible to think that the distinctively philosophical task of jurisprudence is to explore whether there are constraints on criteria of legality,
holding in effect that other issues pertaining to the criteria of legality fall
outside the ken of jurisprudence or philosophical inquiry. It is a matter of,
for example, history or political science to determine how the criteria of
legality come to be what they are in this or that community. It is a matter
of political science, say, to figure out which institutions are the distinctively
legal ones, and so on.
I have no problem with the division of jurisprudential labor between
philosophy and the social sciences. My worry is whether we are asking too
little of philosophy and whether we will fail to identify the essential nature
of law if we ignore the distinctively social aspects of law as a form of social
organization orto use Shapiros way of thinkingas a plan and as a
distinct way of planning.
If Raz can be read as abandoning the centrality of the rule of recognition
as central to understanding law, then Dworkin can be read as encouraging
us to abandon not just Master Rules, but criteria of legality altogether.
Whatever one thinks of the success of his arguments in Hard Cases or Laws
Empire, it is clear that Dworkins claims about law make very good sense
though there is no reference to anything like a rule of recognition, or more
importantly, to criteria of legality (Dworkin, 1986; 1975). In Hard Cases law
is characterized as a subset of political rights, namely, those that are
coercively enforceable; and in Laws Empire law is characterized as those
political principles that provide the best explanation of a set of past
political acts (in particular jurisdictions).
To be sure some positivist-inclined commentators have tried to press the
argumentwithout success in my viewthat Dworkin has to presuppose
the idea of a rule of recognition in order to pick out those political acts that
call for interpretation and to distinguish them from those political acts that
do not. These arguments fail for two reasons. First, even if Dworkin needed
to appeal to a standard for distinguishing the political acts that count from
those that do not, it would hardly follow that the standard he needs would
amount to a rule of recognition in Harts sense. A rule of recognition in that
sense is, after all, a particular kind of standard that carries with it a range
of additional commitments (e.g., conventionality, non-revisability, the internal point of view, and so on). Second, it is not obvious that Dworkin needs
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anything beyond a set of past political acts that are paradigm cases of the
sort of acts that constitute legal activity (e.g., legislative enactments,
judicial decisions) in order to get the interpretive project going.
I am not a Dworkinian of course, and his own jurisprudential account
may fail, but if it does it would not be because it lacks the notion of
criteria of legality. If that is so, I am inclined to think that not even the
notion of criteria of legality is part of the concept of law. It is instead part
of a distinctive way of thinking about law that is widespread and much
endorsed, and not just among positivists. The vast majority of natural
lawyers theorize about law in a similar way: They focus on the project of
identifying which institutions and actions are distinctively legal.
There is a worry about Dworkins account that harkens back to my
concern about Razs. One thing that is missing when we think about law
(as Shapiro aptly puts it) from the perspective of outputswhether these
outputs are principles or enforceable political rights or coercively enforceable norms more generallyis that we miss an essential feature of law
which is that it involves some central organizing, coordinating activities
regardless of what the nature or focus of these activities is.
The great value of Harts account is that he places this organizing social
activity at the foundation of law, even if the details of his approach are not
ultimately compelling. Likewise, it is the great insight of Scott Shapiros
Legality that the law is both the product of a social activity and a distinctive
kind of social activity. My worry, then, about both Raz and the Dworkinians is that they under-theorize the social aspects of law.
8. Beyond the Separability Thesis
In distinguishing legal positivism from other jurisprudential views, most
commentators are inclined to identify positivism with the separability
thesis: the rejection of a necessary connection between law and morality.
Certainly, Hart emphasized the importance of the separability thesis, the
idea that there is a distinction between what law is and its merit or
demerit. I have referred to all such theories as versions of negative
positivism. My objection to negative positivism used to be not that it is
false, but that it is so obviously true as to be of little interest. Things
change, for I now think that the separability thesis is no part of positivism
at all, and that it is in any case very likely false.
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 shall
see in the next section of the essay, we can distinguish between two
versions of the social facts thesis. Roughly, one version holds that only
social facts contribute to legal content. The other holds that only social facts
determine what facts can contribute to legal content. The first view is Razs;
the second is mine. For the purposes of focusing on the separability thesis
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we can ignore these subtle differences. For ease of exposition, lets accept
the Razian formulation of the social facts thesis. In that account, only social
facts can contribute to legal content.
The claim that only social facts contribute to legal content implies
nothing about the morality of legal content. One is a claim about the stuff
of which law is comprised; the other is a claim about whether law exhibits
any necessary moral properties. It may be that only social facts contribute
to legal content, but that in order for a scheme of regulating human affairs
to count as law it must satisfy a set of moral constraints. These are just two
different kinds of concerns: One is what law is comprised of; the other is
what if anything can be said from the moral point of view about law.25
9. Reformulating ILP
I am as committed to ILP today as I have ever been. In this essay I have
defended ILP against the two most powerful lines of objection to it.26 Freed
of the theoretical burdens imposed by Harts reliance on the rule of
recognition, criteria of legality, and the separability thesis, how should we
formulate the central ideas of ILP? My suggestion is that we can formulate
the core idea of ILP as a claim about the constituents of legal content.27 As
I see it, we can distinguish among three claims:
1) Necessarily only social facts are determinants of legal content.28
2) Necessarily moral and social facts are determinants of legal content.
3) Necessarily social facts determine the determinants of legal content.
25
See, e.g., Rosen, unpublished manuscript. There are other reasons for rejecting the Separability thesis that I have noted in my work before, for example, there is no reason why a set
of moral constraints cannot be imposed on what counts as law, where law is understood as
a mode of governing human affairs by reason. I mention such constraints in a number of
places, including my OJLS Hart Lecture: Coleman 2007. These are more narrowly circumscribed objections to the separability thesis than the one I am emphasizing above.
26
On the other hand, I have long resisted making broad (and to my mind unwarranted)
claims on its behalf. I have not offered it as a complete jurisprudential view nor have I
presented it as the best version of positivism or even as the best account of Anglo-American
legal practice. Others have advanced this and similar claims and it may well be that they see
more promise in ILP than I have. Perhaps they are right; and if so, I hope I will be forgiven
for my more modest ambitions especially if they have led me to undersell or undervalue ILP.
27
I am not claiming that these constitute full jurisprudential views of course. After all, I
explain supra why any theory of law would have to explain the distinctive sociality of law.
Here my aim is only to distinguish the kinds of views available by what they take the
constituent elements of legal content to be.
28
When I use the phrase, the content of law is fixed only by social facts or only social facts
can contribute to legal content I am speaking loosely and intentionally so. Of course, I mean
to include natural facts, institutional facts, and semantic facts as well. No theory of law
precludes them. The point is just to preclude normative facts. It is the difference between
theories that include normative facts and those that allow them that I am emphasizing and
I use the convenient phrase only social facts to mark that difference. This is the prevailing
convention I believe, but I nevertheless feel it is necessary to be explicit about it so as not
unintentionally to mislead the reader.

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There are other possible views but these are of special interest to us.
(3) is the core claim of ILP; (1) is the core claim of exclusive legal positivism; and (2) represents the central claim of all natural law positions.
Both Dworkinian interpretivists and classical natural law theorists are
committed to one or another version of (2). For Razians (1) is entailed
by the argument from authority. For Dworkinians (2) is entailed by
interpretivism.29
Obviously (1) and (2) differ substantially from one another. On the other
hand, their leading proponents, Raz and Dworkin, respectively have
more in common methodologically than one might think. Both share the
view that one uncovers the nature of law by exploring its connection to
fundamental issues in political philosophy. Raz takes the relevant problem
of political philosophy to be specifying the conditions of legitimate authority. From there he proceeds to argue for (1).
For Dworkin the central problem in political morality is answering the
question: What justifies the use of collective force (coercion)? Law is an
answer to this question. The fact that law is understood as supplying
(successfully or not) the justification for the use of collective force entails
interpretivism, which, in turn, yields (2).
Whereas for Raz the claim to authority requires that legal directives
function as a wall between agents and the reasons that would justify
their actions, for Dworkin the claim to justified coercion requires that
legal directives be a window through which the background reasons that
apply can be seen.30 For Raz, the claim to authority is vitiated if the wall
comes down. For Dworkin, justified coercion requires that the directives
serve merely to point us to the principles that provide the best interpretation of them. If the sunlight of the relevant moral principles is
blocked from shining through, the claim to justified coercion goes
undefended.
Unlike (1) and (2), (3) is not entailed by any claims about the nature of
law or of our concept of it nor does it derive from any more basic
commitmenttheoretical, practical or normative. As regards (3) I take my
task to have been (1) to explain what is essentially positivistic about this
claim; (2) to defend this view against the charge that it is (a) incoherent, (b)
incompatible with legal positivism, (c) incompatible with conceptual truths
about law or (d) incompatible with essential properties of law; and (3) to
29
Interpretivism is the view that past political acts are social facts, and that law is the set
of principles that provides the best explanation of those facts.
30
Finally, one can reach the conclusions Raz and Dworkin reach about the constituent
elements of legal content without adopting the general methodological approach that Raz and
Dworkin adopt. Scott Shapiro and Andrei Marmor are both committed to (1) for very different
reasons, but neither nests their substantive jurisprudence in normative jurisprudence. By the
same token, Mark Greenberg, Nicos Stavropoulos, and Stephen Perry all adopt substantive
jurisprudential views similar to Dworkins, but none of them draw their substantive claims
by beginning with the Dworkinian interpretive methodology.

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display its intuitive appeal. I leave it to others to determine whether I have


succeeded and whether this is enough to recommend it, not as a jurisprudence, but as an account of the constituents of legal content.
10. The Sociality and Normativity of Law
It is a commonplace that law is a normative social practice. Most commentators come to the conclusion that in one or another form legal
positivism does a good job of capturing laws social nature, but a poor job
of capturing its distinctive normativity. In contrast, natural law is presumed to provide an especially plausible account of the normativity of law
and a less than persuasive account of its social or institutional dimensions.
We need to move beyond these comic-book characterizations which are,
if anything, too generous to both legal positivism and to natural law
theory. I am skeptical that positivists have provided persuasive accounts of
the social dimensions of legality.31 There is, something essentially coordinative and coordinating at the center of law, and positivists need to say
something helpful about it. My efforts to do so have not been persuasive;
nor have Harts. Others have not seen the point of trying. To his credit,
Shapiro takes on this burden. Time will tell how well he does.
If positivism has not quite measured up to its press clippings on the
social side of law, natural law theory deserves a similar report card on the
normative side of the ledger. Nevertheless, the normativity of law is
thought to present a special problem for legal positivism. This is mysterious to me, but it must have something to do with legal positivisms
association of law with social facts. What else would explain why so many
commentators are convinced that the problem does not arise for natural
lawyers or why they believe it is less pressing for them?32
Lets begin by distinguishing among three different kinds of concerns the
worry about the normativity of law might present:
1) Concerns about duty of fidelity to law.
2) Concerns about the justification of coercion.
3) Concerns about the capacity of law to give reasons.
Lets take these up in order. In claiming that law is a normative practice,
one might have in mind the duty of fidelity those governed by law have
to it. The duty of fidelity to law can be understood as the requirement to
respect and support its institutions, which would include but not be
31
To be sure positivists all hold some variant of the social facts thesis but no one could
seriously entertain the view that the claim that legal facts are social facts is an account of the
social dimensions of law. There is more to sociality than social facts!
32
My 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.

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restricted to acting in compliance with those of its institutional directives


that apply. Lon Fuller emphasizes the duty of fidelity to law and he takes
this duty to create a special problem for positivists who inadequately
moralize law and legality.
It is an open question whether law necessarily demands fidelity. Suppose
it does and that fidelity requires that those governed by law sustain and
support its institutions and (generally) comply with its directives. It
follows that a theory of law must have resources adequate to ground the
duty of fidelity so conceived. Does the duty of fidelity to law raise a special
problem for positivists in virtue of their claim that the content of law is
fixed by social facts? I cannot see why it would.
The Sources thesis is a claim about the stuff of legal content and not
about the value or merits of law (the thing that is composed of that stuff).
Presumably law can serve a number of valuable social endsincluding
coordinating human activity efficientlyand it may do this better than any
other alternative form of social planning or control. If it does so in a way that
allows individuals to promote their projects and plans autonomously and
without undue interference, it may well be deserving of support and
adherence, certainly insofar as others who are similarly situated adhere to its
demands and in doing so contribute to its ability to serve its coordinating
functions. It would be odd indeed if law could serve desirable social ends
only if its content were fixed by moral as well as social facts. What matters
to the duty of fidelity to law is not the metaphysics of legal content, but the
role 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 legal
positivists to explain the duty of fidelity to law. Why would the fact that
law passes a moral test imply a duty of fidelity to law? Many possible
institutions may never do anything wrong (as judged from the moral point
of view) or require of us that we act contrary to moralitys demands; but
then again these very same institutions may seek to accomplish very little
and succeed only in their modest and not particularly helpful ambitions.
They may time and again miss opportunities to make our lives easier, more
fulfilling, more satisfying, and better integrated with the lives of others
with whom we are in regular contact. Such an institution passes a moral
test narrowly understood, but it seems implausible to suppose that we
have responsibilities to endorse, support or sustain itin fact to do
anything at all to contribute to it.
If there is something about law as such that grounds a duty of fidelity
to it, it surely has something to do with how law addresses those whose
conduct it governsthe respect it shows for the agency and autonomy of
those it seeks to bind by its directives and its success in regulating affairs
among the governed and the fairness with which it does so.
Perhaps in claiming that law is a normative social practice one is
drawing attention to the claim that the relevant legal actors are justified in
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coercively enforcing its authoritative directives. If so, there is an immediate


problem since it is not a necessary feature of law that its directives are
legitimate or that those authorized by law to enforce coercively its directives are justified in doing so; more generally, it is not clear that the concept
of law carries with it the justification of coercion. In fact, it is clear that no
such implication attaches to the concept of law. Accordingly, this way of
capturing the claim that law is a normative social practice seems without
promise from the outset.
Some commentators are anxious to attribute to Dworkin a claim about
law and coercion that is very much in the neighborhood of this unpromising interpretation of laws normativity. They read him as claiming that
the function of law is to justify the coercive authority of the state. Dworkin
makes no such claim, however, and it is a mistake to saddle him with this
equally unpromising point of departure.33
Dworkin does however make two interesting and plausible claims about
the relationship between law and coercion that one might confuse with
these implausible ones. The first of these is his view that law answers the
question of what justifies the collective use of force. If necessarily law
answers this question, then law must be the sort of thing that could be an
answer to this question. To say that law is the sort of thing that must be
capable of answering the question of what justifies the collective use of
force, is not to say that the answer law gives is the right one or even that
it is a plausible one. Thus, the fact (if it is one) that law necessarily answers
the question of what justifies the collective use of force, imposes no
constraints on legal theory that are problematic for positivismor for any
other theory for that matter.
On the other hand, were it part of the concept of law that it provides the
right answer to this question, then there may well be constraints on the
kind of thing that law is that could prove problematic for the positivist.
However, that is not the claim Dworkin is making; he does not make it for
the very good reason that it is not part of our concept of law that it be the
correct or even a plausible answer to the question of when collective force
is justified.
We turn now to the second claim Dworkin makes about law and
coercion, but to appreciate its source and force we have to do some stage
setting first. Recall that one of his main objections to legal positivism is that
its commitment to criterialism renders it incapable of accounting for
meaningful disagreement about the criteria of legality. This objection is
part of what motivates interpretivism. To show that criterialism is incapable of explaining the possibility of meaningful disagreement falls short

33
In fact, Dworkin, like Hart, Raz, and myself (and probably countless others) rejects the view
that law has a function (in the philosophically interesting sense of function).

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of establishing that interpretivism can. If there is no locus of agreement,


might not interpretive theories merely be talking past one another as well?
The intuitive idea is that some point of agreement is required to explain
the possibility of meaningful disagreement, even for interpretive theories.
Dworkin acknowledges as much in claiming that meaningful disagreement
among interpretive theories requires what he calls a plateau of agreement. The plateau that Dworkin posits is that every interpretive theory of
law takes law to justify the collective use of force (coercion), and so the
value each assigns to law in order to interpret past political acts would in
principle suffice to justify coercive acts warranted by those past political
decisions. For Dworkin the posited plateau is that each theory is committed to understanding law as justifying the use of collective force.
As Dworkin sees it, positing this particular plateau of agreement constrains what law can be and poses requirements that legal theories must
answer to. I agree. However, it is important that neither the general idea
of a plateau of agreement nor the particular one that Dworkin posits are
part of our concept of law. Rather they are elements of an interpretivism
about law that are necessary so that interpretivism might have the
resources to explain the possibility of meaningful disagreement. As such,
the plateau of agreement poses no problem for positivism; treating it
otherwise begs the question in favor of interpretivism.
We come now to the question of whether law can be a source of reasons.
We cannot make progress, however, until we disentangle from one another
a variety of different claims about law and reason. David Enoch points out
that we can distinguish among at least the following:
(c) Is the claim about law that it does create reasons for acting or is the
claim instead that it is capable of creating reasons for acting?
(d) Is the claim about law that it must create reasons for acting or is it
that it must be capable of creating reasons for acting?
(e) Is the claim about law that it creates or purports to create reasons in
a distinctive way or in familiar ways, e.g., by triggering other
reasons that already apply and are in the background?
(f) Is the claim about law that matters the fact that law claims to create
reasons or is what matters that law actually creates reasons or that
it is capable of doing so?
(g) Is the claim that matters about lawwhatever it isa necessary or
contingent feature of it?
If we dont narrow the possibilities, there is no chance that we will make
headway. We have already explored Razs view that law necessarily claims
to be a legitimate authority which (given a plausible interpretation of the
concept of authority) entails that law necessarily claims to create genuine
reasons for acting. Raz argues that this claim imposes constraints on the
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nature of law and thus on theories of its nature. If so, the constraints are
no problem for positivism. Quite the contrary: If Raz is right, the constraints create problems for non-positivist positions.34 The law claiming to
provide reasonswhether that claim is a necessary or a contingent feature
of lawcannot be a problem for positivism.
The problem cannot be with laws claiming to create reasons. One would
think that if there is a problem lurking in the neighborhood it has to do
with laws ability to give reasons or its actually doing so. But what could
that problem be since, as David Enoch points out, virtually anything can
create reasons for acting by changing the non-normative situation in a way
that triggers reasons that already apply to an agent (Enoch 2009)? Clearly
law creates reasons for acting at least from time to time and in just this
way.35
Perhaps the issue has nothing to do with laws ability to create reasons
for acting but with the manner in which it does so or with the nature of
the reasons it creates. Lets see if we can pose the problem precisely. The
kinds of reasons law is thought to create have the following features: (a)
they are new reasons in that those who have them did not have those
particular reasons prior to the issuance of the relevant legal directive, but
they do have them after the legal directive; (b) they are reasons in virtue
of the issuance of the legal directive; (c) they are reasons independent of
the content of the directive; (d) the directive creates the reason not
primarily or at all in virtue of its manipulating the non-normative environment and in doing so triggering a reason that already applies; (e) thus,
in a sense that needs to be explained, the issuance of the directive is the
ground of the reason.
Law claims that it creates reasons that have these features. But, I take it,
the concern is whether law is in fact capable of doing so.
We want to distinguish between two different kinds of concerns to which
this problem draws our attention. The first is the content-independence of
the reason the law is thought to create. If the fact that the law directs one
to X is a reason to X, then it would be the case that if the law directed one
not to X one would have reason not to X. So the reason to act is
independent of the content of the legal directive.
Just a bit of reflection shows us that content-independent reasons for
acting are not mysterious at all. We create such reasons for one another and
ourselves by making requests, asking for favors, issuing commands and
making promises and vows. Many of our most important relationships,
like friendship and love, are sources of content-independent reasons for
acting as well.
34
No constraints on the nature of law or on theories of it follow if it is merely a contingent
fact about law that it claims to create reasons for acting or that it is capable of doing so.
35
It is trivial that law creates legal reasons (whatever that amounts to). The thought is that
law creates reasons that are not domain-specific.

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The second worry must have something to do specifically with law


as a source of content-independent reasons and not with contentindependence itself. We are familiar with how requests, promises, friendship and family give rise to content-independent reasons, but we do not
see how law gives rise to such reasons. I am not so sure this is true,
however. It is very much a puzzle to philosophers how my promising to
X can create a reason for me to X and a power in you to demand my
doing X. Similarly, it is a puzzle how your requesting of me that I Y for
you can be a reason for me to Y. And it is surely a matter of great
philosophical interest how it is that your commanding (if you have the
authority to issue commands) me to Z can be a reason for me to Z. The
distinctive feature of law is that its authoritative directives involve the
very same notions of commanding and directing and so on. So if
there is something puzzling about law it may well be the same thing
that puzzles us philosophically about the ways in which commands and
authoritative directives are reasons.36 I am not claiming to have shown
that there is no problem of explaining the capacity of law to create
reasons robustly as Enoch calls it. I claim merely to show that this is
not a problem unique to law and that to the extent it is a problem for
law, it poses no threat to legal positivism that is not also a threat to
natural law theories.
11. Conclusion
While at one time it may have advanced reflection on important issues in
jurisprudence to distinguish between legal positivism and natural law
theory, it no longer does. The separability thesis is supposed to unite legal
positivists and distinguish them from natural lawyers. But does neither
Joseph Raz nor I accept the separability thesis as central to legal positivism
and for the very plausible reason that it may well be false. Nor is it possible
to distinguish legal positivists from natural lawyers in terms of the
methodology of jurisprudence they adopt. Dworkin adopts a normative
jurisprudence urging that the problems of jurisprudence are nested in
fundamental problems of political morality. Raz, arguably the leading legal
positivist of our time, does the same. And he is not alone among positivists. Positivists from Tom Campbell to Gerald Postema to Jeremy Waldron
all advance in one form or another the view that substantive positivism can
and must be defended on normative grounds. It is less clear where on the
substantive questions of jurisprudence Liam Murphy stands, but there is
36
Enoch (2009, 6) refers to this problem regarding the conditions under which authoritative
directives and commands can be reasons in virtue of their being directives and commands as
the problem of robust reason-giving. He has some interesting things to say about the
conditions that must be satisfied in order for this to be the case.

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no question but that he thinks that there is no alternative to resolving these


matters other than by appeal to normative considerations.
On the other hand, natural lawyers as diverse as Nicos Stavropoulos,
Mark Greenberg, Michael Moore, and David Brink do not defend their
substantive jurisprudential views by nesting them in concerns of political
philosophy. Instead they ground quite different versions of substantive
natural law theory in considerations drawn primarily from the philosophy
of language and metaphysics. Hart notoriously grounds his legal positivism in a combination of sociological and ordinary language considerations.
My substantive views in jurisprudence draw support from considerations
in the philosophy of language and the philosophy of the social sciences;
and Scott Shapiro draws in equal measures from metaphysics and the
theory of social organization. The list goes on.
The old distinctions have worn out their welcome. Emphasizing them at
this point is distracting at best, and often more misleading than illuminating. The question then is whether there are any useful distinctions to be
drawn among jurisprudential theories and whether attending to them will
help us to further our understanding of the nature of law and to appreciate
its role in the social and normative space.
I am inclined to think that worrying too much about categorization
invites a fetishism about placing people in boxes that accomplishes little
and leads to too many of the wrong kinds of discussions: The leading
debates center around the nature of the theories of law that are available,
and who holds which one, at the expense of discussion about law itself and
its place in our lives.
Still, there are two distinctions that help to distinguish among jurisprudential views, each of which may bear theoretical fruit. The first is the
distinction I have emphasized between theories of law that focus on
identifying criteriae.g., criteria for distinguishing legal institutions and
activities from non-legal ones, criteria for distinguishing the domain of law
from other ways of regulating human affairs, criteria for distinguishing
legal systems from one another, and criteria for specifying the property of
legalityand those other theories that reject the idea that our ability to talk
meaningfully about law presupposes the existence of criteria for marking
out the legal domain, rejecting the view that it is important to distinguish
in advance what political acts and institutions are legal and whose actions
can contribute to legal content.
The second distinction overlaps with, but is not the same as, the first. It
is the distinction that Shapiro has emphasized between theories of law that
take the project of jurisprudence to consist in specifying the inputs to legal
content and those that begin by characterizing the nature of legal content
in terms of the normative difference it makes. Those who begin with
specifying the nature of legal content typically also focus on criteria, but
they need not. It is not necessary that a theory of the determinants of legal
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content be put in terms of criteria. Whether one adopts the criterial project
or not, those who begin by thinking that the first task of jurisprudence is
to identify the stuff of legal content are then pressed to give an account of
what difference legality makes in normative space. What obtains normatively in virtue of certain facts obtaining legally?
In contrast, those who begin by characterizing the distinct normative
difference that law makeswhether as Greenberg does as an impact in
what he calls the moral profile, or as Dworkin has in terms of a set
of coercively enforceable claims or a distinctive set of political rights
and obligationsthe urgent issue is to identify the grounds of those
normative differences and the processes by which those differences
arise.
I have no view about which is the better view or approach to jurisprudence. There is in both, however, an important lesson for jurisprudence.
Earlier in this essay, I repeated the old saw about natural law theory and
legal positivism: Natural law theory provides a good theory of the normativity of law, and legal positivism a good theory of the sociality or
institutionality of law, but neither does a good job of both. The suggestion
is that it makes sense to be a positivist if you think falling short on the
normative side of the ledger is outweighed by the insights into the sociality
of law that positivism provides. And that one can be a natural lawyer and
just hold ones nose about its inability to explain well the social dimensions
of law.
I took some pains in the paper to suggest that the truth of the matter is
that neither view has done as well with respect to its presumed strong
points as the conventional wisdom would have it. One of the great virtues
of both of the distinctive approaches to jurisprudence I outline above is
that they remind us that there is no dividing the social from the normative
aspects of jurisprudence. A jurisprudence is in the one view an account of
the normative difference that certain facts (social or otherwise) make; and
in the other it is an account of the social facts and processes that are
necessary to explain the normative difference that law makes. A satisfactory jurisprudence is not one that does well on one dimension and well
enough on the other. A satisfactory jurisprudence is one that answers to
both types of concerns, for the very good reason that these concerns are
distinguishable but inseparable. That is the real significance of the familiar
thought that law is a normative social practice.
Yale University
Yale Law School
127 Wall Street
New Haven, CT 06520
USA
E-mail: jules.coleman@yale.edu
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