1. The first salvo in this debate should probably be given to Lon Fuller in his exchange with Ernst Nagel. Fuller, Lon, Human Purpose and Natural Law, 53 J. Phil. 697–709 (1956).CrossRefGoogle Scholar Hart responds to Fuller's arguments in his justly celebrated article, Positivism and the Separation of Law and Morality, 71 Harv. L. Rev. 593–629 (1958).Google Scholar Fuller's response was Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630–72 (1958).Google Scholar Hart restated his views in The Concept of Law (1961), and Fuller in The Morality of Law (1964). Hart's response to the latter was Book Review The Morality of Law, 78 Harv. L. Rev. 1281–96 (1965).Google Scholar Fuller's rejoinder is in The Morality of Law (2d ed. 1969).

2. Hart, H.L.A., Postscript, in The Concept of Law (2d ed. 1994)Google Scholar

3. Id. at 239.

4. At a recent AALS Planning Committee Meeting organizing a mini-workshop on “Jurisprudence,” one skeptical type suggested we just go by the titles of various professors in picking our participants; if their tide included the word “jurisprudence,” they were in.

5. I chart some of these affinities in Michael Moore, Law as a Functional Kind, in Natural Law Theory (George, Robert ed., 1992Google Scholar). Others I chart in Moore, , Legal Principles Revisited, 82 Iowa L. Rev. 867–891 (1997).Google Scholar

6. Austin, John, The Province of Jurisprudence Determined (1954).Google Scholar

7. Hart, , supra note 2, at 239–40.Google Scholar

8. The first-year graduate students who took my and Waldron's introductory jurisprudence seminar in the Jurisprudence and Social Policy Program at UC-Berkeley introduced me to this reaction to Hart.

9. I describe such “modest” social science in Moore, Michael, The Need for a Theory of Legal Theories, 69 Cornell L. Rev. 988–1013 (1984).Google Scholar

10. Hart, , Positivism, supra note 1, at 600–601.Google Scholar

11. Argued convincingly by Raz, Joseph, The Concept of a Legal System (2d ed. 1980).Google Scholar

12. Hart, , The Concept of Law, supra note 1, at ch. 7.Google Scholar

13. On whether there can be role-specific ethics, see Hurd, Heidi, Justifiably Punishing the Justified, 90 Mich. L. Rev. 2203–2324 (1992)CrossRefGoogle Scholar; Hurd, Moral Combat (forthcoming)

14. Hart, , Concept, supra note 1, at 115–17.Google Scholar

15. Id. at 56–57, 84–85, 115–17.

16. Id. at 115.

17. Moore, Michael, A Natural Law Theory of Interpretation, 58 S. Cal. L. Rev. 277–398 (1985).Google Scholar Ruth Gavison notices this separation in this work in her Comment, in Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart 26, n.5 (Gavison, R. ed., 1987).Google Scholar

18. Hart, , Concept, supra note 1, at 82, 85.Google Scholar

19. Id. at 55–58.

20. Id. at 86.

21. Id. at 87.

22. Id.

23. Dworkin, Ronald, Social Rules and Legal Theory, 81 Yale L. J. 855–890 (1972)CrossRefGoogle Scholar, reprinted as ch. 3 of Taking Rights Seriously (1978).

24. See, e.g., Hart, H.L.A., Morality and Reality, 25 N. Y. Rev. Books, 35–38 (03 9, 1979)Google Scholar

25. Hart, , Concept, supra note 1, at 115.Google Scholar

26. Joseph Raz, carrying on Hart's style of external, general jurisprudence, also avoids this ethical question of internal jurisprudence. See Raz, , Facing Up: A Reply, 62 S Cal. L Rev. 1153–1235, at 1170, n.28 (1989).Google Scholar

27. Hart, , Concept, supra note 1, at 203.Google Scholar In the passage quoted in the text it is unclear whether Hart is referring to officials' acceptance of the rule of recognition or to citizens' acceptance of the primary rules of obligation. I take the former interpretation because of Hart's later statement that, “though the judge is … committed to following the rules his view of the moral merits of doing so … is irrelevant. His view of the merits may be favorable or unfavorable, or simply absent, or, without dereliction of his duty as a judge, he may have formed no view on the moral merits.” Hart, H.L.A., Essays on Bentham 159 (1982).Google Scholar In the Introduction I wrote for the Legal Classics edition of The Concept of Law (1990), I opined that this disclaimer by Hart was “an excess of zeal” on his part because he could do his kind of external jurisprudence without it and yet remain an external legal positivist. Upon publication of the Introduction, Hart received a copy, and wrote to reaffirm his “excessive” zealousness:

I see that you wonder why I don't settle for a less extreme form of positivism which would be content with the assertion that officials must believe in the justness of their system but not that the system must be just if it is to be law. I myself wonder at times why I do not take the easier line; what prevents me is the simple empirical doubt as to whether all officials do believe this (Oliver Wendell Holmes did not!) and if they do not whether a system with all the other features of law cannot exist as a legal system. (Hart, Herbert, personal communication, 02 13, 1990)Google Scholar

28. See generally Soper, Phil, Choosing a Legal Theory on Moral Grounds, inGoogle Scholar Philosophy and Law (Coleman, J. & Paul, E.F. eds., 1987).Google Scholar

29. The kind of arguments Fuller and Hart glancingly consider in their 1958 debate. See Hart, , Positivism, supra note 1Google Scholar; Fuller, , Positivism and Fidelity, supra note 1.Google Scholar

30. Postema, Gerald, Bentham and the Common Law Tradition (1986).Google Scholar

31. Argued for in Simpson, A.W.B., Common Law and Lagal Theory, in Oxford Essays in Jurisprudence (2d series, 1973).Google Scholar

32. Hart notices such empiricist-grounded normative arguments in Concept, supra note 1.

33. Hart, , Postscript, supra note 2, at 240.Google Scholar

34. Dworkin, Ronald, Laws Empire (1986), ch. 4.Google Scholar

35. Hart, , Postscript, supra note 2, at 248–49.Google Scholar

36. Austin, , supra note 6.Google Scholar

37. Dworkin, , supra note 34, at 31–35.Google Scholar

38. Hart, , Postscript, supra note 2, at 246.Google Scholar

39. Hart, , Concept, supra note 1, at v.Google Scholar

40. Id.

41. Ruth Gavison sees this clearly:

Dworkin is constructing a straw man here. Classical legal theories have always been attempts at understanding the phenomenon of law, and not at defining the word “law. …” The linguistic formulations of the question concealed a belief that linguistic usages reflect social reality in some way, and that there was something to be gained from attending to them. But the search has always been the same: an attempt to understand the nature of law. (Gavison, , supra note 17, at 23)Google Scholar

42. Hart, , Concept, supra note 1, at 4.Google Scholar

43. Id. at 5.

44. Id.

45. Id.

46. Hart's later characterization in the article he wrote for Paul Edward's Encyclopedia of Philosophy. See Hart, H.L.A., Problems of the Philosophy of Law, 6Google ScholarEncyclopedia of Philosophy 264–76Google Scholar (Edwards, Paul ed., 1967)Google Scholar, reprinted in Hart, H.L.A., Essays in Jurisprudence and Philosophy 91 (1983).CrossRefGoogle Scholar

47. It is thus true that Hart's answer is given in terms of the conventions (that make up law) even if his method in arriving at that answer is not one relying on semantic conventions (surrounding usage of die word “law”). This conventionality of Hart's answer is enough for Dworkin to press his “semantic sting” objection, directed against Hart's legal positivist theory of law but not against Hart's method of jurisprudence. In fact, as we shall see, Dworkin is actually more subject to the “semantic sting” than is Hart, for both Dworkin's answer and his methods are too conventionalist to justify belief in determinate answers in cases of radical disagreement in either law or in legal theory.

48. Hart, H.L.A., Definition and Theory injurisprudence, 70 L.Q. Rev. 37–60 (1954)Google Scholar, reprinted in Hart, Essays, supra note 46. Hart himself came to see that, like other Oxford ordinary-language philosophers of the time, he had merged force into meaning. See Hart, , Introduction, Essays, supra note 46, at 2–6.Google Scholar Hart also came to see that a purely semantic analysis even of more particular legal concepts used within a legal system did not resolve the controversies that have arisen in the application of such concepts. Id. at 5.

49. Hart, , Postscript, supra note 2, at 247Google Scholar: Dworkin, “seems to me to confuse the meaning of ‘law’ with the meaning of propositions of law.”Google ScholarSee also Gavison, , supra note 17, at 26Google Scholar (“Dworkin is weakening considerably the distinction between law and theory of law;… the law is what is binding on us, and a theory of law is our way of understanding what is binding on us”).

50. Natural kinds have been a frequently discussed topic in contemporary philosophy. For an introduction, see Moore, Michael, The Semantics of Judging, 54 S.Cal.L. Rev. 151–295 (1981).Google Scholar

51. I do not think that this answer actually works for Hart, but why it does not gets us too far ahead of the story. The bottom line I shall suggest in the Conclusion is this: Hart needed to have a functionalist essence to law, not a structural one, but this did not require him to abandon his descriptive kind of jurisprudence. Such a descriptive jurisprudence, however, will look quite different from Hart's because what it is describing will include some moral facts (about the ends of law) as well as some nonmoral facts (about the efficacy of certain kinds of social institutions in effecting the ends of law).

52. I discuss theories of “direct reference” (also called “Kirpke-Putnam semantics,” after two leading philosophical explications of it) in Moore, , supra note 17Google Scholar; Moore, , supra note 50.Google Scholar

53. E.g. Ryle, Gilbert, The Concept of Mind (1949)Google Scholar; Peters, Richard, The Concept of Motivation (1958).Google Scholar

54. Hart, H.L.A., The Ascription of Responsibility and Rights, 49 Proc. Aristotelean Soc'y 171–94 (1949)CrossRefGoogle Scholar; Hart, , Definition and Theory, supra note 48Google Scholar; Hart, , Positivism, supra note 1.Google Scholar

55. See Moore, , supra note 17, at 291 n.25.Google Scholar

56. Hart, , Concept, supra note 1, at 116.Google Scholar As Peter Hacker noted in his essay Hart's Philosophy of Law, in Law, Morality and Society: Essays in Honour of H.L.A. Hart 1–25 (Hacker, P.M.S. & Raz, J. eds., 1977)Google Scholar, this certainly looks like the kind of explicit definition of “law” that Hart throughout his career eschewed for more particular legal terms.

57. Hart on occasion did marshal other arguments against criterial definitions. In Ascription, supra note 54, Hart based his anti-criterial conclusion on (1) the case-law origins of legal concepts; (2) the lack of any unitary thing named by legal concepts; and (3) the supposedly nondescriptive use of legal concepts because of their ascriptive force. These themes are repeated in Definition and Theory, supra note 48, and in Hart, , Analytic Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer, 105 U. Pa. L. Rev. 953–75 (1957).CrossRefGoogle Scholar

58. On PCA semantics, see Moore, , supra note 50.Google Scholar

59. Hart, , Positivism, supra note 1.Google Scholar Hart later softened but did not eliminate the reliance on ordinary English semantics in the interpretation of statutes, in his Introduction, supra note 48, and in his Problems, supra note 46.

60. Hart, , Positivism, supra note 1.Google Scholar

61. See text at supra nn. 30–46.

62. Dworkin, , Laws Empire, supra note 34, at 13–14.Google Scholar

63. Id. at 14.

64. Id.

65. Id. at 90.

66. See text at supra note 10.

67. Dworkin, , supra note 34, at 4.Google Scholar

68. Id.

69. Id. at 18.

70. Id. at 18–19.

71. Hart, H.L.A., American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 Ga. L. Rev. 969–89 (1977)Google Scholar, reprinted in Hart, , Essays, supra note 46, at 123.Google Scholar

72. This tight connection between judicial obligation and law held for the early Dworkin, . See The Model of RulesGoogle Scholar, as ch. 2 of Taking Rights Seriously (1978), where Dworkin treats the question of whether principles are part of the law as equivalent to the question of whether principles are obligatory (rather than discretionary) with judges.

73. See the illuminating discussion of this possibility in Hurd, , supra note 13.Google Scholar

74. See the discussion and citations in Raz, Joseph, Hart on Moral Rights and Legal Duties, 4 Oxford J. Legal Stud. 123–31 (1984).CrossRefGoogle Scholar

75. Marmor, Andrei, Interpretation and Legal Theory (1992).Google Scholar

76. Dworkin, , supra note 34, at 108–13Google Scholar

77. See id. at 112, where Dworkin concludes that after we have shifted from one foot to the other and have our trousers fully on, law “must be understood as saying what judges should do in principle, unless circumstances are special in the way just noticed.” If “what judges should do in principle” is equated with their role-defined obligations, this is the position I describe in the text.

78. As Lon Fuller exclaimed, “It is incredible to think that obligation can arise from some such morally inert fact.” What Fuller was railling against is a view of jurisprudence that regards its task as purely descriptive and then (unlike Hart and Raz) turns to the question of the obligatoriness of law and without more ado blithely assumes that law, of course, obligates obedience, at least prima facie.

79. For the argument against the classical theory of holding, see Moore, Michael, Precedent, Induction, and Ethical Generalization, inGoogle Scholar Precedent in Law (L. Goldstein, ed., 1987).Google Scholar For the argument against plain-meaning interpretation of statutes, see Moore, , supra note 17Google Scholar; Moore, , supra note 50.Google Scholar

80. Gerald Postema argues that such values can make judging a kind of coordination game, in that each judge has these reasons to seek to coordinate his kind of judging with that of other judges. Postema, , Co-ordination and Convention at the Foundation of Law, 11 J. Legal Stud. 165–203 (1982).CrossRefGoogle Scholar

81. Moore, , Legal Principles, supra note 5.Google Scholar

82. Dworkin, , supra note 72Google Scholar, and Hard Cases, 88 Harv. L. Rev. 1057–1109 (1975)Google Scholar, reprinted in Taking Rights Seriously, supra note 72.

83. Dworkin, , supra note 34.Google Scholar

84. For this argument in greater detail, see Moore, , Interpreting InterpretationGoogle Scholar, in Law and Interpretation 27–28Google Scholar (Marmor, A. ed., 1995)Google Scholar; Moore, , The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 Stan. L. Rev. 871–957, at 948–949 (1989).CrossRefGoogle Scholar Herbert Hart was present when I presented a draft of the latter paper at All Souls College, Oxford, with Dworkin commenting; I gather I won Hart's assent (if not Dworkin's) on this point See Postscript, supra note 2, at 241 n.15.Google Scholar

85. Moore, , supra note 17Google Scholar; Moore, , supra note 50Google Scholar; Moore, , Interpretive Turn, supra note 84Google Scholar; Moore, , Do We Have an Unwritten Constitution?, 63 S. Cal. L. Rev. 107–39 (1989).Google Scholar I apply such a realist semantics to moral discourse in Moore, , Moral RealityGoogle Scholar, Wis. L. Rev. 1061–1156 (1982)Google Scholar; Moore, , Moral Reality Revisited, 90 Mich. L. Rev. 2424–2533 (1992).CrossRefGoogle Scholar

86. Hart's old term for the provisional nature of semantic criteria. Hart, , Ascription, supra note 54.Google Scholar

87. We do need intimations that there is a kind, and we may use paradigms in a weak sense to make this discovery. The paradigm from which we learned of flatness, for example, may have been Earth's surface. As this example shows, such paradigms may turn out not to be instances of the kind once we develop a proper theory of the kind's nature. Such learning paradigms thus do not fix the meaning in the style of PCA semantics. See Moore, supra note 50.

88. Moore, , supra note 17.Google Scholar

89. See particularly Dworkin, , Is There Really No Right Answer?Google Scholar, in Dworkin, , A Matter of Principle (1985).Google Scholar

90. Dworkin, , supra note 34.Google Scholar

91. Putnam, Hilary, The Meaning of “Meaning,” in Putnam, Mind Language and Reality (1975).Google Scholar

92. Dworkin, , supra note 34, at 47.Google Scholar

93. An indexical intention is Putnam's term for the intention to refer to some kind of tiling, no matter what the nature of the kind may turn out to be. See Putnam, supra note 91. A referential intention is Keith Donellan's name for such rigid designation of a particular or a kind. Donellan, , Reference and Definite Descriptions, 75 Phil. Rev. 281–94 (1966).CrossRefGoogle Scholar

94. In the famous “unborn widow” case, Jee v. Audley, the court took the phrase to be used attributively by the testator, which meant that the widow was not necessarily John's present wife Mary or any other life in being at the time the will took effect.

95. Putnam's example, supra note 91.

96. Here some of those who have followed me in applying realistic semantics to propositions of law have disagreed. See Brink, David, Legal Theory, Legal Interpretation, and Judicial Review, 17 Phil. Pub. Aff. 105–48 (1988)Google Scholar; Brink, , Semantics and Legal Interpretation (Further Thoughts), 2 Canadian J. L. Jurisprudence 181–91 (1989)CrossRefGoogle Scholar; Stavropoulos, Nicos, Objectivity in Law (1996).Google Scholar Brink and Stavropoulos appear to believe that we are justified in using realist semantics for any discourse whose practitioners speak and argue as iftlieir concepts were theoretical terms. I think on the contrary that such a discourse necessarily degenerates into Dworkin's deep conventionalism, discussed below. For without the ontological commitments to kinds with natures, what is there to have a theory about except those deeply shared conventions Dworkin calls concepts? This is where Stavropoulos ends up, finding that the substantive theory that seeks to give the meaning of some legal concept is only “constrained by paradigmatic applications and abstract characterizations of the relevant practice of application.” Id. at 160.

97. Stavropoulos, , supra note 96, at 160Google Scholar, makes a loyal effort to show that Dworkin's theory “is perfectly compatible with K-P semantics.” Yet this stretches what Dworkin has said (particularly about interpretation) too far to be credible. Compare Kress, Ken, The Interpretive Turn, 97 Ethics 834–60 (1987)CrossRefGoogle Scholar, who sees more clearly the incompatibility between Dworkin's interpretive methodology and any version of realist semantics.

98. I document Dworkin's conventionalism in this regard in Moore, , Metaphysics, Epistemology, and Legal Theory, 60 S. Cal. L. Rev. 453–506 (1987).Google Scholar

99. Dworkin, , supra note 34, at 73.Google Scholar

100. Id. at 74.

101. Id.

102. Moore, , supra note 17, at 298–300Google Scholar; Moore, , supra note 98, at 471–73.Google Scholar

103. Dworkin, , supra note 34, at 75.Google Scholar

104. Id.

105. Id. ch. 3.

106. Hart, , supra note 2, at 241.Google Scholar

107. Not being English, I put it this way in my Introduction to The Concept of Law that Hart approved:

Hart's most general response … is that Dworkin wilfully ignores the question Hart set himself, and wishes Hart had asked a different one. … Criticisms that he failed to accommodate Amencan judicial practice are not, Hart thinks, criticisms of the book he wrote, only the wish that he had written a different book.

108. Moore, , Interpretive Turn, supra note 84, at 948–49, 953–56Google Scholar; Moore, , supra note 98, at 497–501.Google Scholar

109. Hart, , supra note 2, at 243Google Scholar

110. This was at All Souls College, Oxford, in July 1987, The paper was The Interpretive Turn, supra note 84.

111. Hart, , supra note 2, at 243Google Scholar

112. Winch, Peter, The Idea of a Social Science (1958).Google Scholar I discuss other varieties of dualistic hermeneutics in The Interpretive Turn, supra note 84, at 917–34.Google Scholar

113. See citations to Dworkin, in Moore, , supra note 98, at 499Google Scholar; Moore, , The Interpretive Turn, supra note 84, at 953.Google Scholar

114. Hart, , supra note 2, at 242–43.Google Scholar

115. Stavropoulos, , supra note 96, at 179–86.Google Scholar I note in passing that Stavropoulos in these pages attributes to me a view (about discourse autonomy) that he knows I do not hold, and then uses the view I do hold to answer it!

116. This movable feast view of a practice's boundaries can indeed be accommodated within the Dworkin/Stavropoulos kind of interpretivism. As Dworkin himself puts this, “since even the preinterpretive stage requires interpretation, these boundaries around the practice are not precise or secure.” Law's Empire, supra note 34, at 425Google Scholar n.22. What cannot be accommodated is the possibility of radical mistake, not at the boundaries, but root and branch. Thus, it is unclear how an interpretive practice (such as the internal jurisprudence of some legal culture is supposed to be) could move its boundaries sufficiently so as to recharacterize all of external jurisprudence as if it were interpretive of some culture's practice of law. Dworkin's attempt to do this to Hart's jurisprudence is hardly a reassuring example of such a possibility.

117. See text at supra nn. 26–27.Google Scholar

118. Dworkin, , supra note 34, at 93.Google Scholar

119. I give what I understand to be the general form of this kind of jurisprudence without deciding on the merits whether it can be successful, in Moore, , Law as a Functional Kind, supra note 5.Google Scholar

120. Hart, , Book Review, supra note 1, at 1296.Google Scholar