Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights.For a flavor of the former view, see Baker v. Carr, 369 U.S. 186, 266–330 (1962) (Frankfurter, J., joined by Harlan, J., dissenting). For the modern view, see id. at 208–37 (opinion of the Court) (holding that an equal protection challenge to state legislative apportionment did not present a political question). By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device.See, e.g., Warth v. Seldin, 422 U.S. 490 (1975) (denying standing to low and moderate income plaintiffs claiming that town’s exclusionary zoning practices denied them housing); id. at 519 (“Standing has become a barrier to access to the federal courts, just as ‘the political question’ was in earlier decades.”) (Douglas, J., dissenting). Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that a challenge to the Senate’s use of a committee to hear testimony for judicial impeachment presented a political question); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing to environmentalists suing the Secretary of the Interior to require consultation regarding the environmental impact of overseas projects). in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional justiciability doctrines, scholars have only recently begun to address the range of questions implicated by the Court’s approach to the relation between constitutional rights and challenged legal rules—and they have generally focused on narrow doctrinal questions about the proper treatment of discrete rights such as abortion, free exercise of religion, and freedom of speech. The papers in this issue of Legal Theory and the next view these issues in a broader jurisprudential context.

Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert “her own” rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force?

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.

Legal positivism is generally characterized by its commitment to two theses —one negative, the other positive.See, e.g., Jules Coleman, Negative and Positive Positivism, J. LEGAL STUD. 139 (1982), reprinted in Jules L. Coleman, MARKETS, MORALS AND THE LAW 3 (1988). The negative thesis, usually referred to as the “Separability Thesis,” denies any necessary connection between morality and legality. Legal positivists do not require that a norm possess any desirable, or lack any undesirable, moral attributes in order to count as law.

I. INTRODUCTION

Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, Why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act-types rather than rule-independent act-tokens? Must not its concern for the former be based on its concern for the latter?

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in The Model of Rules I made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree or social source.Ronald Dworkin, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart.

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 1990, in Department of Employment Services v. Smith,494 U.S. 872 (1990). the Supreme Court announced a new standard to govern Free Exercise claims. The Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens concurring)). Prior to Smith, the Court had applied a test drawn from Sherbert v. Verner.374 U.S. 398 (1963). In Sherbert, the Court had indicated that religiously motivated persons were constitutionally exempt from otherwise valid laws unless the imposition of those laws was necessary to secure “a compelling state interest.”Id. at 403 (internal quotation marks omitted). Although the Court rejected almost every Free Exercise claim raised under Sherbert, the Sherbert standard was—in theory if not in practice—remarkably generous to religiously motivated persons, granting them a presumptive right to disobey laws that thwarted their religious commitments.

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).

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience.

If there is a constitutional right to R, and a law L by its terms prohibits R, L cannot be validly applied to some person P’s exercise of R. For at least two reasons, however, most cases involving claims of constitutional right are substantially more difficult than this schematic example. First, lawmakers rarely act so brashly as to proscribe rights in so many words.But see Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (invalidating a ban on all “First Amendment activities” at the main terminal of the Los Angeles International Airport). Second, even facially invalid laws typically include within their sweep much unprotected activity.For example, a law forbidding “prayers or offerings to any god but the Christian God” prohibits, inter alia, involuntary human sacrifice to the Aztec god Huehueteotl, see Johanna Broda et al., THE GREAT TEMPLEOF TENOCHTITLAN 68–70 (1988), which ought to be unprotected even under the broadest reading of the Free Exercise Clause.

Professor Matthew Adler has argued that many constitutional rights are not personal moral rights, but “rights against rules” that are pragmatic and instrumental in nature.See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998); Matthew D. Adler, Personal Rights and Rule-Dependence: Can the Two Coexist?, 6 LEGAL THEORY (present issue). The reason rights are not personal, in Adler’s view, is that they are rule-dependent—the constitutionality of a statute depends not just on how it affects someone, but on what it says—its formulation of a rule. Constitutional litigants are in some cases allowed to challenge the formulation of rules, regardless of whether the error in formulation would make any difference to the way the litigant is treated. Adler argues that because the litigant would receive no different treatment whether the law is formulated correctly or not, the litigant does not suffer from the constitutional error any “personal” legal disability that would set him apart from any other citizen, and is, therefore, not enforcing a personal right. Instead, Adler believes that constitutional rights are better understood as positive-law creations that allow citizens to sue as private attorneys-general.

In an impressive and important article, Rights Against Rules: The Moral Structure of American Constitutional Law, Matthew Adler maintains that constitutional rights are “rights against rules: they protect citizens against the legislative enactment and judicial application of particular rules (rules with wrong act-type predicates); they do not provide guarantees that citizens can perform any particular sorts of actions free of governmental interference.”Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). As Adler writes:

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.

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).

Looked at from the perspective of an American constitutionalist, individual rights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority,See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184–205 (1977). the phrase “individual rights” has a meaning that is now relatively well understood. In a different sense, however, the phrase “individual rights” might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity),See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT’L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938). and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit,See John Chipman Gray, THE NATURE AND SOURCES OF LAW (R. Gray ed., 2d ed. 1921); Oliver Wendell Holmes, THE COMMON LAW (1881); William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 381 (1973); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). The theme is also prominent in the work of the Scandinavian Realists. See, e.g., Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953); A. Villem Lundstedt, LEGAL THINKING REVISED (1956); Karl Olivecrona, LAW AS FACT (2d ed. 1971); Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958); Karl Olivecrona, Legal Language and Reality, in ESSAYS IN HONOR OF ROSCOE POUND 151 (F. Newman ed., 1962); Alf Ross, Tû-tû, 70 HARV. L. REV. 812 (1957). the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled Rights Against Rules: The Moral Structure of American Constitutional Law<Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules.

INTRODUCTION

Economic accounts of tort law tell us why tortfeasors face monetary sanctions for certain sorts of conduct. That is not enough, according to corrective justice theorists Jules Coleman and Ernest Weinrib.See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY ANDTHE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992). Economic theoriesThe most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). do not offer an adequate explanation of why the defendant is required to pay these monetary sanctions to the plaintiff. Perhaps some argument can be made that it is efficient to reward private parties for bringing tort actions. Yet even if this were plausible, it would make the plaintiff-driven nature of tort law a purely contingent matter. The plaintiff-defendant structure of tort law is essential to it, not merely contingent. The economic account is therefore fatally flawed, like an account of the criminal law that fails to mention the role of the state, or an account of Shakespeare’s literary genius that fails to mention his poetry. This is called the “bipolarity” critique of law and economics.