1. The terms “jurisprudence” and “legal theory” are applied to a large number of different intellectual enterprises that take law as their subject matter. I discuss in tins essay only philosophical jurisprudence, or the philosophy of law, which takes as its primary task to give a general account of the nature of law and legal reasoning. In this essay I will use “philosophy of law,” “philosophical jurisprudence,” “jurisprudence,” and “legal theory” interchangeably to refer to this particular jurisprudential enterprise.

2. The one notable exception is Michael Moore. See, e.g., his The Interpretive Turn: A Turn for the Worse 41 Stan. L. Rev. 871–957 (1989)Google Scholar, and Law as Functional Kind, in Natural Law Theories, 188–242Google Scholar (George, Robert P. ed., 1992).Google Scholar

3. Perry, Stephen R., Interpretation and Methodology in Legal Theory, in Law and Interpretation 101Google Scholar (Marmor, Andrei ed., 1995).Google Scholar

4. Hart, H.L.A., The Concept of Law (1961Google Scholar; 2d ed. with Postscript, Bulloch, Penelope A. & Raz, Joseph eds., 1994Google Scholar). All subsequent page references to this work in the text will be to the 2d edition [hereinafter Concept].

5. Hart, H.L.A., Legal Theory and the Problem of Sense: Comment, in Issues in Contemporary Gal Philosophy 37Google Scholar (Gavison, Ruth ed., 1987Google Scholar) [hereinafter Comment].

6. It would not compromise the resource neutrality of legal theory if it turned out that it is out of some more general moral interest that theorists were inclined to seek understanding of the law. The methodology can be neutral even if theorists are motivated to adopt the methodology for moral reasons.

7. Hart, H.L.A., Essays on Jurisprudence and Philosophy 13 (1983).Google Scholar Hart makes the same point at Concept 89–90, supra note 4.Google Scholar

8. Raz, Joseph, Ethics in the Public Domain 221 (1994).Google Scholar

9. See Finnis, John, Natural Law and Natural Rights (1980)Google Scholar, ch. I; Green, Leslie, The Political Content of Legal Theory, 17 Phil. Soc. Sci. 1–20 (1987)CrossRefGoogle Scholar; Raz, , supra note 8, at 192–93, 219–21Google Scholar; MacCormick, Neil, Natural Law and the Separation of Law and Morals, in Natural Law Theories 111–14Google Scholar (George, Robert P. ed., 1992Google Scholar); Waluchow, W.J., Inclusive Legal Positivism 19–30 (1994).Google Scholar

10. Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. Sor Hart, H.L.A., Essays on Bentham 157–61 (1982)Google Scholar; Concept supra note 4, at 257.Google Scholar Hart conceded the critics' point for purposes of this argument.

11. Raz, Joseph, Intention in Interpretation, in The Autonomy of Law, 260–62Google Scholar (George, Robert P. ed., 1996).Google Scholar

12. Id. at 260.

13. Id. at 261.

14. Raz, , supra note 8, at 193Google Scholar; see also id. at 220, 221, and Waluchow, , supra note 9, at 21.Google Scholar

15. Raz, , supra note 8, at 220.Google Scholar

16. Waluchow, , supra note 9, at 22.Google Scholar

17. See, e.g., Sartorius, Rolf, Hart's Concept of Law, in More Essays in Legal Philosophy 151–61Google Scholar (Summers, Robert S. ed., 1971Google Scholar); and Postema, Gerald J., Coordination and Convention at the Foundations of Law, 11 J. Legal Stud. 170–71 (1982).CrossRefGoogle Scholar

18. Stephen Perry has some insightful things to say about this problem. See Perry, , supra note 3, at 121–34.Google Scholar

19. Holmes, Oliver Wendell, The Path of Law, in Collected Legal Papers 171 (1920).Google Scholar In Holmes's story, the bad man exemplifies “a business-like understanding” of the law. What makes him “bad” is that he is not one who “finds his reasons for conduct, whether inside the law or outside it, in the vaguer sanctions of conscience” (id.).

20. At Concept, 193–201Google Scholar, supra note 4, Hart argues that law could not be even minimally efficacious unless it offered subjects reasonable security against force, fraud, and the like. From which it follows that natural-law theories are right to hold that law must include certain moral-like rules or standards. His argument, in brief, is that law depends for its effective functioning on the voluntary cooperation of at least a certain portion of the population (at the very least, the law elite), and, in view of natural vulnerabilities of human beings, law cannot count on voluntary cooperation unless subjects are given at least minimal protections against exploitation of these vulnerabilities. Such protections are necessary, because, without them, rational agents would not have reason voluntarily to comply with the law's demands. However, Hart is quick to point out the severe limits of dus concession to natural law, for, by this argument, law need not extend these securities to all persons subject to its demands and burdens, as we might expect morality (minimally) to require. Note that according to Hart's argument, the effective functioning of law depends on people having at least minimal reason voluntarily to comply with the law. This is an explicitly normative argument. Hart stresses this at the opening of the discussion. He observed, “It is important to stress the distinctively rational connexion between natural facts and the content of legal and moral'rules in this approach” (Concept 193, supra note 4Google Scholar). This is one place where Hart clearly attempts to give a practical explanation of the “normativity” of law.

21. Perry, , supra note 3, at 111–12.Google Scholar

22. Thinking of points of view as personal leads naturally to a certain conception of objectivity. Thought of in this way, objectivity is not just another point of view; it is, rather, the absence of any perspective, the “view from nowhere” explored by Thomas Nagel in The View from Nowhere (1986).

23. Questions like “What is the nature of X?” can be found in both domains. Thus, “What is the nature of justice” and “What is virtue?” look like theoretical questions, but in fact fall in the practical domain. Thus, nothing follows from the form of the central question of jurisprudence—What is the nature of law?—about the kind of inquiry appropriate to it.

24. “Impersonally,” but not “from the view from nowhere.” As I noted above, the temptation to think in terms of the view from nowhere to achieve objectivity comes from starting from personal points of view, rather than logical ones.

25. See, e.g., Ruth Garrett Millikan, Language, Thought and Other Biological Categories (1984) and, more recently, Millikan, Ruth Garrett, Truth-Rules, Hoverflies, and the Kripke-Wittgenstein Paradox, in Ruth Millikan, White Queen Psychology and Other EssayS 211–39 (1993).Google Scholar

26. I take Joseph Raz's account of reasons as my point of departure in this subsection. I rely on his Practical Reason and Norms 15–35 (2d ed. 1990)Google Scholar, and Introduction to his Practical Reasoning 1–17 (1978).Google Scholar

27. I make no assumptions about the ontology of reasons. The distinction between “facts” and “states of mind” is made within the practical domain, indicating only the direction that the search for reasons should take.

28. I say “not merely causal” to allow the possibility that reasons are causes of a special sort. I take no stand on that issue here.

29. Two clarifications are in order. First, the judgment need not be conclusive or “all things considered.” Second, “action-guiding” is a success term in one respect: It guides action in virtue of the fact that it figures in a sound, practical inference. Bad reasons may explain an agent's action, but strictly speaking they are not action-guiding. In another respect, however, “action-guiding” is not a success term, for agents may fail to act for the reason, or fail to give it proper weight in their deliberations and so fail to be guided by it.

30. Operative and auxiliary reasons also differ in another important respect, although I am unsure how best to characterize it. Typically, reasons have their practical force for (other) reasons. Reasons for reasons are not reasons why some statement of fact is true, but rather reasons why the facts Provide agents reasons to act in a certain way, why the facts are action-guiding. Operative and auxiliary reasons differ in the reasons for their practical force. Auxiliary reasons are reasons in virtue of their relationship to other premises in the practical inference in which they figure. They are, in that respect, dependent on the other premises, in particular on the operative reasons, for their practical force. In contrast, what makes certain facts operative reasons is that which gives the practical inference as a whole its practical force.

31. At this point I go beyond Raz's useful discussion of practical reasons.

32. I use “norm” here very broadly to include rules, principles, standards, directives, and possibly even values and requests.

33. Note the same facts might produce a response, and so explain the action, but if they merely produce the response they would not be action-guiding. Response reasons are action-guiding, and they guide by prompting the associated response-action.

34. Norms understood broadly as I understand them here share this feature with desires. I leave open the question of whether we should regard desires as compliance reasons.

35. See, e.g., Hurd, Heidi, Moral Combat (forthcoming), chs. 3–6.Google Scholar

36. See Hart, H.L.A., supra note 10, at 254Google Scholar, and Raz, Joseph, The Morality of Freedom 35–37 (1986).Google Scholar

37. Austin, John, The Province of Jurisprudence Determined 184 (1955) (1832).Google Scholar

38. See Postema, Gerald J., Bentham and the Common Law Tradition (1986, 1989), esp. ch. 9.Google Scholar

39. Frederick Schauer, for example, says “definition of law is a matter of choice rather than discovery, and … moral factors loom large in making that choice.” Schauer, Frederick, positivism as Pariah, in The Autonomy of Law 34Google Scholar (George, Robert P. ed., 1996Google Scholar). For a criticism of this way of thinking about legal theory, see Soper, Philip, Choosing a Legal Theory on Moral Grounds, 4 Soc. Phil. & Poly 31–18 (1986).CrossRefGoogle Scholar

40. Hart, , supra note 4, at 90Google Scholar; Hart, , supra note 7, at 13.Google Scholar

41. See references to Ruth Millikan's work in supra note 25.

42. So, strictly speaking, Hart's argument is not a non sequitur, it merely rests on a particular, and strong, understanding of the first premise.

43. MacCormick, , supra note 9, at 114.Google Scholar Hart made the same point when he observed that, if we ignore the internal point of view, “We cannot properly understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society.” Hart, , supra note 4, at 88.Google Scholar

44. Of course, over time one might also learn what they believe about it, but one learns that through learning the practice.

45. Finnis, , supra note 9, at 16.Google Scholar I do not suppose he would endorse my use of his thought.

46. Raz, , Morality of Freedom, supra note 36, at 63.Google Scholar

47. Id. at 63–64.