1. In a recent article, Frederick Schauer offers the following comment regarding one characterization of the inclusive/exclusive legal positivism debate, before going on to give a different characterization of the debate and what is at stake in it:

As I have just presented it, this debate is likely to confirm the worst fears of large number of contemporary American law professors, the fear that analytical jurisprudence in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants, many of whom are English and most of whom are dead.

F. Schauer, “Positivism Through Thick and Thin” in B. Bix, ed., Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998) 65 at 69.

2. The same approach goes under other names including “incorporationism,” “negative positivism,” and “soft positivism.” Among its proponents are D. Lyons, “Principles, Positivism and Legal Theory” (1977) 87 Yale L. J. 415; P. Soper, “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute” (1977) 75 Mich. L. Rev. 473; J.L. Coleman, “Negative and Positive Positivism” (1982) 11 J. Legal Stud. 139, reprinted in Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988) 3; W. J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); see also H. L. A. Hart, “Postscript” in P.A. Bulloch & J. Raz, eds., The Concept of Law. 2nd ed. (Oxford: Clarendon Press, 1994) 238 at 250–54.

3. See J. Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 37–77; J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994) at 210–19, 287–92; see also S.J. Shapiro, “The Difference That Rules Make” in B. Bix, supra note 1 at 56–62; S.J. Shapiro, “On Hart’s Way Out” (1998) 4 Legal Theory 469.

4. For example, Frederick Schauer has suggested that legal positivism should turn its back on one of the most central and original parts of H.L.A. Hart’s legal theory: the emphasis on the internal perspective. See F. Schauer, “Critical Notice: R. Shiner, Norm and Nature” (1994) 24 Can. J. Phil. 495 and F. Schauer, “Positivism Through Thick and Thin,” supra note 1.

5. See Brian Bix, “Conceptual Questions and Jurisprudence” (1995) 1 Legal Theory 465; reprinted in modified form in Brian Bix, Jurisprudence: Theory and Context (London: Sweet & Maxwell; Boulder, CO: Westview Press, 1996).

6. On legal positivism generally, see, e.g., G.C. Christie & P.H. Martin, eds., Jurisprudence: Text and Readings on the Philosophy of Law 2nd ed. (St. Paul, MN: West, 1995) at 392–724; B. Bix, Jurisprudence: Theory and Context, supra note 5 at 35–65; J.L. Coleman & B. Leiter, “Legal Positivism” in D. Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996) at 241–60.

7. See Brian Bix, “Natural Law Theory” in D. Patterson, ibid. 223 at 227–28.

8. John Austin offered the classic statement on the separation of law and morality:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. John Austin, The Province of Jurisprudence Determined ed. by W.E. Rumble (Cambridge: Cambridge University Press, 1995) Lecture V at 157. (first published, 1832).

9. Supra note 8.

10. See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). The pagination was changed in the second edition, cited supra note 2; all references will be to the first edition, except when referring to the posthumously published “Postscript,” which appeared only in the second edition.

11. Primary rules apply directly to citizens; secondary rules are rules about rules, and apply to officials. See Hart, ibid. at 89–96. Hart also emphasized a different, if largely overlapping, distinction, between rules which impose duties and those which confer powers. See ibid. at 78–79.

12. See ibid. at 54–57, 79–88. The difference between a true legal system, and a community acting out of fear under the rule of gangsters, is that in a legal system, the officials and at least some of the citizens accept the prescriptions of the rulers (and not merely their threats) as reasons for action. See ibid. at 80–86.

For more detailed discussions of Hart’s “internal aspect” and its central place in discussions about legal theory, see, e.g., S. Perry, “Interpretation and Methodology in Legal Theory” in A. Marmor, ed., Law and Interpretation: Essays in Legal Philosophy. (Oxford: Clarendon Press, 1995) 97; Brian Bix, “H.L.A. Hart and the Hermeneutic Turn in Legal Theory” (1999) 52 SMU L. Rev. 167; Thomas Morawetz, “Law as Experience: Theory and the Internal Aspect of Law” (1999) 52 SMU L. Rev. 27.

13. See Hart, supra note 10 at 92: the Rule of Recognition “will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.”

14. See The Authority of Law, supra note 3 at 37–52; Ethics in the Public Domain, supra note 3 at 187–92, 210–19.

As Jules Coleman has pointed out, Raz rarely refers to a “Rule of Recognition,” but instead refers directly to the criteria of legality. J.L. Coleman, “Incorporationism, Conventionality, and The Practical Difference Thesis” (1998) 4 Legal Theory 381, 385 n.9. Other exclusive legal positivists do refer to a rule of recognition. See, e.g., Shapiro, “The Difference That Rules Make,” supra note 3 at 59–61.1 do not think anything of importance to the present discussion rums on the different characterizations; for convenience of expression and comparison, this article will continue to refer to the Rule of Recognition when discussing both inclusive and exclusive legal positivism.

15. See, e.g., J. L. Coleman, “Authority and Reason” in R. George, ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) 287 at 291; see also Coleman & Leiter, supra note 6 at 251–52. The same point can be made in a slightly different way: “Incorporationism allows that morality can be a condition of legality: that the legality of norms can sometimes depend on their substantive (moral) merits, not just their pedigree or social source.” Coleman, supra note 14 at 382.

There is a second type of distinction regarding the status of claims. Stephen Perry has pointed out that we need to distinguish claims made about (legal) theory from claims made about law. and he uses this distinction to differentiate “methodological positivists” (who argue that theories of law should be descriptive and morally neutral) from “substantive positivists” (who make claims denying certain kinds of connections between law and morality). S.R. Perry, ‘The Varieties of Legal Positivism” (1996) 9 Can. J. L. & Juris. 361 at 361–62. Professor Perry concluded, at the end of a provocative and complicated argument, that methodological legal positivism is untenable. Ibid. at 369–74. Though Perry’s analysis could have important implications for the debates within and about legal positivism, its consideration must await another occasion.

16. Waluchow, supra note 2 at 2 (footnote omitted). Coleman offers a similar definition: inclusive positivism “allows that substantive moral principles can count as part of a community’s binding law in virtue of their status as moral principles provided that the relevant rule of recognition includes a provision to that effect.” “Authority and Reason”, supra note 15 at 287–88; see also Coleman & Leiter, supra note 6 at 250–59; J.L. Coleman, “Second Thoughts and Other First Impressions” in B. Bix, supra note 1 at 258–78; Coleman, supra note 14 at 403–09.

17. See, e.g., “Authority and Reason,” supra note 15 at 295.

18. See Ronald Dworkin, Taking Rights Seriously. rev. ed. (London: Duckworth, 1977) at 14–80.

19. Coleman & Leiter, supra note 6 at 250.

20. “Authority and Reason,” supra note 15 at 296. As noted by Coleman, the inclusive/exclusive debate leads to interesting alliances: “Dworkin and Raz are in fundamental agreement about the character, if not the truth, of legal positivism. In contrast, Raz and I agree about the truth of legal positivism, but not its character.” Coleman, ibid. at 290 (footnote and paragraphing omitted).

21. On the difference between “critical” and “conventional” morality, see H.L.A. Hart, Law, Liberty, and Morality (Oxford: Oxford University Press, 1963) at 17–24 (though Hart uses the terms “positive morality” for what I label “conventional morality”); Bix, Jurisprudence: Theory and Context, supra note 5 at 136–37.

22. Professors Coleman and Leiter leave open, as “controversial,” whether legal positivism requires that any incorporation of moral standards be consistent with a neutral, pedigree form of a Rule of Recognition: i.e., whether legal positivism requires that the moral standards only obtain legal status if they are identified by a morally neutral method (e.g., their appearance in the preamble of statutes) rather than by a method that (merely) requires moral evaluation (i.e., that the moral principles be true), supra note 6 at 252.

23. Cf. Perry, supra note 15 at 375–78.

24. See Waluchow, supra note 2 at 76.

25. See ibid. at 232–72; see, e.g., Heydon’s Case (1584), 3 Co. Rep. at 7a, 7b; 76 E.R. 637.

26. Either (in the terms to be discussed later, see text accompanying notes 45–46) for the validation or the identification of the law.

27. Or whether it is an adequate (descriptive) theory of law; one can characterize the debate in different ways.

28. Supra note 18 at 22–28.

29. Supra note 10 at 9–11.

30. Supra note 18 at 35.

31. See ibid. at 39–45.

32. See J. Raz, “Legal Principles and the Limits of Law” in M. Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984); Raz, Ethics in the Public Domain, supra note 3 at 179–93.

33. Ronald Dworkin, “A Reply by Ronald Dworkin” in M. Cohen, ibid. at 260–63.

34. See The Authority of Law, supra note 3 at 97–98; see also Waluchow, supra note 2 at 76–77.

35. See Ethics in the Public Domain, supra note 3 at 187–92, 199–204.

36. See, e.g., ibid. at 180–82 (criticizing the “linguistic approach” to legal theory).

37. Cf. Perry, supra note 15 at 379 n.35 (“Law is a forum for human behavior, and within that forum we can expect different legal actors to say and do inconsistent things. One of the reasons that we require a normatively-driven conceptual framework is precisely to tame the unruly data with which law presents us.”).

38. See, e.g., ibid. at 380–81.

39. Waluchow, supra note 2 at 6.

40. This is not to say that the inclusive position does not have characterization problems of its own. The processes of common law reasoning (including the ability of later court decisions to narrow and distinguish, re-characterize or overrule earlier decisions), customary law, and the problem of legal mistake all create difficulties for any descriptive/explanatory theory of law, including inclusive legal positivist theories. On the problems with explaining common law reasoning see Perry, supra note 15 at 375–77; see also S. R. Perry, “Judicial Obligation, Precedent and the Common Law” (1987) 7 Oxford J. Legal Stud. 215; S. R. Perry, “Second-Order Reasons, Uncertainty and Legal Theory” (1989) 61 S. Cal. L. Rev. 913; Frederick Schauer, “Is the Common Law Law?” (1989) 77 Cal. L. Rev. 455; on legal mistake, see, e.g., Perry, supra note 15 at 379 (showing how the problem of legal mistake can undermine one of Waluchow’s arguments against exclusive legal positivism in the area of constitutional rights); B. Bix, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993) at 84–88. In Waluchow’s inclusive theory of law, for example, he deals with some of these problems by distinguishing a law’s being valid from a court’s obligation to apply it. See Waluchow, supra note 2 at 31–79; cf. Perry, supra note 15 at 377 and n.32 (discussing some complications and possible problems with this analysis).

Inclusive legal positivism also appears to have some trouble explaining the way that pedigree-based rules dominate legal consciousness, given that judges may be authorized to consider the totality of social or moral norms in determining what the law requires. F. Schauer, “Rules and the Rule of Law” (1991) 14 Harv. J. L. & Publ. Policy 645 at 666–67 n.41. (Schauer elsewhere writes more sympathetically about inclusive positivism. F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford: Clarendon Press, 1991) at 197–99.) For a response to Schauer focusing on the inclusive/exclusive debate, see J. L. Coleman, “Rules and Social Facts” (1991) 14 Harv. J. L. & Publ. Policy 703.

41. Compare a response H.L.A. Hart offered to Ronald Dworkin’s work:

[T]here is a standing need for a form of legal theory or jurisprudence that is descriptive and general in scope, the perspective of which is not that of a judge deciding ‘what the law is’, that is, what the law requires in particular cases … but is that of an external observer of a form of social institution with a normative aspect, which in its recurrence in different societies and periods exhibits many common features of form, structure and content. Among other things which such a descriptive theory should provide is an analytical account and explanation of those very legal practices which govern a community’s use of force against its citizens of which [Dworkin’s] legal theory … offers a controversial justification.

H.L.A. Hart, “Comment” in R. Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) at 36–37.

42. See, e.g., A. A. Leff, “Economic Analysis of Law: Some Realism About Nominalism” (1974) 60 Virginia L. Rev. 451 at 469–77.

43. See Hart, supra note 10 at 18–76 (criticizing Austin’s command theory).

44. An interesting variation on the boundary-blurring argument is made in R. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992), where Professor Shiner argued that the more sophisticated forms of legal positivism verge on natural law theory, and the more sophisticated forms of natural law theory verge on legal positivism.

45. Coleman, “Authority and Reason,” supra note 15 at 291–92.

46. The argument goes roughly as follows: by their nature, all legal systems purport to be authorities (i.e., to offer citizens preemptive, exclusionary reasons for action). For legal rules even to be eligible for authoritative status, they must give decisive guidance regarding how the citizens should act. If the legal rules require further evaluation (e.g., by telling citizens to act according to controversial moral standards—for example, “do what is fair”) before action, then the legal system will not be acting as an authority. See Ethics and the Public Domain, supra note 3 at 195–204. To put the same point a different way, Raz has a “service conception of authority,” that authorities mediate between people and the reasons which apply to them. However, “[t]he mediating role of authority cannot be carried out if its subjects do not guide their actions by its instructions instead of by the reasons on which they are supposed to depend.” Ibid. at 198–99.

47. See ibid.

48. See “Authority and Reason,” supra note 15 at 292–94.

Coleman and Leiter offer another argument against the claim that the incorporation of moral standards into the Rule of Recognition undermines the ability of legal rules to act authoritatively. Raz argues that for a legal rule to be authoritative, a citizen should not have to look at the justifications behind the legal rule to determine its validity. See Ethics in the Public Domain, supra note 3 at 199–204. Against this argument, Coleman and Leiter point out that the moral questions that must be considered in determining the legal (constitutional) validity of rules would often be different than the justifications behind the rules. For example, a murder statute might be subject to a constitutional inquiry regarding the “equality” of its effects, while questions of equality were not prominent among the underlying justifications for enacting that statute. Coleman and Leiter, supra note 6 at 255–57; see also Waluchow, supra note 2 at 123–40 (offering a detailed critique of Raz’s authority argument); but see B. Leiter, “Realism, Hard Positivism, and Conceptual Analysis” (1998) 4 Legal Theory 533 at 540–44 (suggesting that inclusive legal positivism’s responses to Raz’s authority argument may be insufficient).

49. “Authority and Reason,” supra note 15 at 292–93.

50. Hart, supra note 10 at 112–14.

51. “Authority and Reason,” supra note 15 at 293.

Imagine a very simple legal system in which the standard of legality is: Whatever Dworkin says is law. That norm states the legality conditions and sets out the criterion of validation. In such a system, however, it may be that the most reliable rule of identifying the law is: Listen to Raz ….

Ibid.

52. Coleman & Leiter, supra note 6 at 252. For example, judges could agree that statutes which were contrary to equality would be void, without agreeing what the requirements of equality were or whether a particular statute violated that norm.

53. Ibid. at 257; see “Postscript” supra note 2 at 251–52.

54. Coleman & Leiter, supra note 6 at 257–58.

55. Ibid. at 258.

56. Ibid, at 243.

57. The Coleman & Leiter text just quoted continues: “The latter can include a convention among the relevant officials to make the moral value of a norm a condition of its legal validity.” Ibid. (citations omitted). The exclusive legal positivist would, of course, disagree with that further claim.

58. Perry, supra note 15 at 369–74.

59. Jules Coleman offers an interesting response to this challenge. He writes:

The descriptive project of jurisprudence is to identify the essential or necessary features of our concept of law. No serious analytic legal philosopher … believes that the prevailing concept of law is in any sense necessary: that no other concept is logically or otherwise possible. Nor do we believe that our concept of law can never be subject to revision. Quite the contrary. Technology may someday require us to revise our concept in any number of ways. Still, there is a difference between the claim that a particular concept is necessary and the claim that there are necessary features of an admittedly contingent concept.

Coleman, supra note 14 at 393 n.59. One would want to see this response elaborated. One question about the move from “necessary/essential feature of law” to “necessary/essential feature of our concept of law” is: what work is being done in the latter notion by “necessary” or “essential”? Are they merely emphasis terms, such that one could just as easily say, without them, that certain matters were “features (or aspects) of our concept of law”?

60. The closest example I can find to a claim of necessary truth for law is Raz’s argument for exclusive legal positivism based on authority. See Ethics in the Public Domain, supra note 3 at 199 (“I will assume that necessarily law, every legal system which is in force anywhere, has defacto authority.”). However, that argument more assumes than sets out to elaborate and prove the “necessity” argument. The quoted statement also makes a claim for the current practice of all existing legal systems, but no potential counter-examples are considered; as noted above, the treatment of purported counter-examples would allow us to see how a necessity argument could be made in a non-circular fashion (in this case, that a system which did not claim authority was therefore not “law”).

61. As contrasted with discussants simply talking past one another.

62. See Coleman, supra note 14 at 409–12.

63. It should be noted that a prominent natural law theorist, John Finnis, has himself pointed out that one can believe in traditional natural law theory and (apparently) affirm all die major tenets of legal positivism. John Finnis, “The Truth in Legal Positivism” in R. George, supra note 15 at 203–05.

64. See Waluchow, supra note 2 at 13–30; for a critical response to that argument, see Perry, supra note 15 at 369–74.

65. See Ethics in the Public Domain, supra note 3 at 186–87.

66. Cf. “Comment,” supra note 41 at 37–38.

67. Waluchow, supra note 2 at 186–87.

68. Ibid. at 187. One can also play the game the other way around. A Dworkinian could accept most or all of legal positivism (inclusive or exclusive) for a particular legal system, saying that legal positivism provided “the best interpretation” of that system (but not necessarily the best interpretation of other legal systems). For Waluchow’s analysis, the focus on a Rule of Recognition is foundational, and Dworkin’s interpretive machinery can be placed on top of it; in the analysis I just offered, it works the other way: the interpretive machinery is foundational, and the Rule of Recognition is placed on top.

69. For what it is worth, I do not.

70. Jules Coleman is not within that group. His most recent article on the subject, ‘Incorporationism, Conventionality and the Practical Difference Thesis,” supra note 14, goes to great lengths to describe and determine the battle lines between inclusive legal positivism, exclusive legal positivism, and Dworkin’s approach to law.

71. See, e.g., Waluchow, supra note 2 at 2–3.

72. Scott Shapiro and Andrei Marmor also likely qualify. See Shapiro “The Difference That Rules Make,” supra note 3 at 56–62; “On Hart’s Way Out,” supra note 3; A. Marmor, “An Essay on the Objectivity of Law” in B. Bix, supra note 1 at 14.

73. See, e.g., Waluchow, supra note 2 at 2; “Authority and Reason,” supra note 15 at 287–88.

74. See Bix, supra note 7 at 230–37 (describing Ronald Dworkin and Lon Fuller as proponents of a “modern” natural law theory, to be contrasted with the traditional natural law theory of Thomas Aquinas and John Finnis).

75. See R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 255–56.

76. Supra note 18 at 39–45, 58–68.

77. See N. Kretzmann, “Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court of Conscience” (1988) 33 Am. J. Juris. 99; Jurisprudence: Theory and Context, supra note 5 at 70–73.

78. If disobedience to an immoral law might threaten the greater danger of undermining a generally just legal system, there may be a moral obligation to “public compliance,” but this still falls short of a moral obligation to obey. See Thomas Aquinas, Summa Theologiae. in R.J. Henle, ed. & trans., The Treatise of Law (Notre Dame: Notre Dame University Press, 1993) Question 96, article 4, corpus, at 327; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 359–62.

79. See Aquinas, ibid. at Question 91 (distinguishing “Eternal Law,” “Divine Law,” “Natural Law,” and “Human Law”).

80. Supra note 63 at 204; Finnis, supra note 78 at 279–80.

81. Cf. Waluchow, supra note 2 at 108–09 (arguing that some natural laws would exist as part of countries’ legal systems even if they were not expressly recognized by courts or legislatures).

82. Cf. Shaw v. DPP [1962] A.C. 220 (upholding an indictment for “conspiracy to corrupt public morals,” despite the absence of any clear precedents, thus affirming the possibility of “discovering” new common law crimes); but see Knuller v. DPP [1973] A.C. 435 (denying that English courts still have the power to create new criminal offenses).

83. A similar point is made by Philip Soper in the context of a different analysis: the problem for implementing a natural law theory is that at some point the theory must be interpreted and applied by human officials (judges or otherwise), and it will be their perhaps-erroneous declarations which will constitute the law (at least until “corrected” by other, equally fallible officials). The difference between that and legal positivism is hard to discern. P. Soper, “Some Natural Confusions About Natural Law” (1992) 90 Mich. L. Rev. 2393 at 2413.

84. For an unfortunate example of this attitude, see R. A. Posner, Law and Legal Theory in the UK and the US (Oxford: Clarendon Press, 1996) at 1–10.

85. At least to some, and no one else is forced to partake.

86. Waluchow, supra note 2 at 64–73. Waluchow is careful to note that the possible political benefits of a particular theory cannot be seen as dispositive—or even relevant—to the value of that theory as a description or explanation of the social practice. Ibid. at 72.

87. See A. J. Sebok, Legal Positivism in American Jurisprudence (Cambridge: Cambridge University Press, 1998). Chapter 7 of this book, “New Legal Positivism and the Incorporation of Morality,” includes a good overview of the inclusive-exclusive debate. For Professor Sebok, the earlier legal positivism of the Legal Process school had been turned by some scholars into a dry originalist approach to constitutional law. The inclusive form of legal positivism illustrated how the “reasoned elaboration of principles” in judging was consistent with applying certain moral principles in the course of constitutional adjudication. See ibid. at 312–17.

88. See F. Schauer, “Fuller’s Internal Point of View” (1994) 13 L. & Phil. 285 at 289–94.

Whether or not this is the best way to characterize the Hart-Fuller debate in toto, one can certainly find aspects of that approach, e.g., in Hart’s argument with Gustav Radbruch about the past and future effects of legal positivism (Radbruch having argued that the legal positivist beliefs of German judges and lawyers had left them less able to resist Nazi laws). See H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593 at 615–21; see also S. L. Paulson, “Lon L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses” (1994) 13 L. & Phil. 313.

89. See also F. Schauer, “Instrumental Commensurability” (1998) 146 U. Perm. L. Rev. 1215 (offering a neo-pragmatist argument for determining conclusions of commensurability and incommensurability); cf. Brian Leiter, “Incommensurability: Truth or Consequences?” ibid. 1723 at 1723–26 (commenting on Schauer).

90. See “Critical Notice,” supra note 4; “Positivism Through Thick and Thin,” supra note 1.