In H.L.A. Hart’s now famous Postscript to The Concept of Law,H.L.A. Hart, THE CONCEPT OF LAW 185–86 (2nd ed., 1994). Hereinafter referred to as CL. he embraced the Incorporation Thesis, according to which it is possible for a legal system to have a rule of recognition that incorporates moral criteria of validity.Nevertheless, Hart had some reservations about the Incorporation Thesis. Hart, a skeptic about moral objectivism, believed that the Incorporation Thesis presupposes that moral norms have an objective status and hence conditioned his acceptance of the Incorporation Thesis on the truth of moral objectivism. See Kenneth Einar Himma, Incorporationism and the Objectivity of Moral Norms, 5 LEGAL THEORY 415 (1999), for a discussion of Hart’s worries on this count. In such legal systems, a norm must satisfy certain moral conditions as either a necessary or a sufficient condition for it to be legally valid. According to the Incorporation Thesis, then, the criteria of validity need not consist exclusively of standards that define validity in terms of a norm’s source or pedigree.

I. INTRODUCTION

To what extent are the existence and content of law dependent on morality? Legal Positivism is generally understood to answer: Not at all; the existence of law is one thing, its merit or demerit another thing entirely. Positivism’s historical rival, Natural Law Theory, is widely understood to answer: To a very large extent indeed: An unjust law seems to be no law at all. Recent developments in jurisprudence have rendered these understandings highly questionable and potentially misleading. Natural law theorists like John Finnis and Robert George deny that justice was ever thought by contemporary or traditional defenders of natural law theory to be a necessary condition of law,See, e.g., John Finnis, The Truth in Legal Positivism, and Robert P. George, Natural Law and Positive Law, both in THE AUTONOMY OF LAW (R. George ed. 1996). whereas positivists like H.L.A. Hart, Jules Coleman, and this author assert that morality can indeed play a key role in determining the existence and content of valid laws. But not all self-avowed positivists agree with the line pursued by Hart et al. Many follow the lead of positivism’s greatest contemporary critic, Ronald Dworkin, in claiming that this new brand of positivism, variously termed “incorporationism,”See, e.g., Jules Coleman, Authority and Reason, in THE AUTONOMY OF LAW, supra note 1; and Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381–425 (1998). “soft positivism,”H.L.A. Hart, Postscript in THE CONCEPT OF LAW (P. Bullock & J. Raz eds., 1994). or “inclusive legal positivism,”Waluchow, INCLUSIVE LEGAL POSITIVISM (1994), hereinafter referred to as ILP. Inclusive positivism, the legal theory, will be referred to as ILP. is either an untenable version of positivism or no version of positivism at all. Among the central challenges to ILP posed by its positivist critics is an objection first raised by Joseph Raz: that ILP (like Natural Law Theory and Dworkin’s “law as integrity”) is inconsistent with the practical authority that law necessarily claims for itself.

In recent times, especially in the pages of this journal, the debate between the proponents of the two principal species of legal positivism has gained new vigor. Specifically, some champions of Exclusive Legal Positivism have sophisticatedly challenged the Inclusive Legal Positivists’ claim that moral principles can figure among the criteria by which the officials of a legal system ascertain the law. The present essay attempts to parry the most formidable of those recent challenges.My focus will lie chiefly on Scott Shapiro, On Hart’s Way Out, 4 LEGAL THEORY 469 (1998) [hereinafter cited as Shapiro, Way]. For a couple of other recent contributions to the debate, from the camp of Exclusive Legal Positivism, see Scott Shapiro, The Difference that Rules Make, in Brian Bix (ed.), ANALYZING LAW 33, 56–61 (1998); Brian Leiter, Realism, Hard Positivism, and Conceptual Analysis, 4 LEGAL THEORY 533 (1998).

I. ONCE, SAID AN AUTHOR, WHERE I NEED NOT SAY . . .

Two judges, named Stat J. and Constit J., were asked to appear on a panel at a law conference for jurists from around the world. The two judges were from different jurisdictions, though both their jurisdictions had a common-law legal tradition. Constit’s country, like most, had an American-style written constitution, which, among other things, entrenched and made justiciable a catalogue of individual rights. This document was known as the Charter and Bill of Human Rights (CBHR). Stat’s country, by contrast, was one of the few that had yet to accept the prevailing view of the benefits of American-style constitutionalism. Stat’s country had no entrenched and justiciable CBHR-type document against which judges could weigh, and if necessary strike down, the legislature’s statutes.