¹ The problem is not that of explaining why it is that we have reasons to comply with laws. This last (in my opinion, mistaken) conception of the problem is found in e.g. Dworkin, Ronald, ‘The Model of Rules II’, Taking Rights Seriously (Cambridge, 1977)Google Scholar; Dworkin, Law's Empire (Cambridge, 1986); Raz, Joseph, Practical Reason and Norms, 2nd edn. (Princeton, 1990), § 2.1Google Scholar; Postema, Gerald J., ‘Coordination and Convention at the Foundations of Law’, Journal of Legal Studies 11 (1982)Google Scholar; Coleman, Jules and Leiter, Brian, ‘Legal Positivism’, A Companion to Philosophy of Law and Legal Theory, ed. Patterson, Dennis (Oxford, 1996)Google Scholar; Coleman, Jules, The Practice of Principle (Oxford, 2001)Google Scholar, lectures 6–7; Shapiro, Scott J., ‘Law, Plans, and Practical Reason’, Legal Theory 8 (2002)CrossRefGoogle Scholar. Some of Raz's discussion of the problem encourages conflation of the two conceptions of the problem. See Raz, Practical Reason, § 5.1; Raz, ‘Kelsen's Doctrine of the Basic Norm’ and ‘Legal Validity’, The Authority of Law (Oxford, 1979), pp. 134, 150.

² See Hart, ‘Commands and Authoritative Reasons’, Essays on Bentham (Oxford, 1982), p. 256.

³ Waldron, Jeremy, ‘Law’, The Oxford Handbook of Contemporary Philosophy, ed. Jackson, Frank and Smith, Michael (Oxford, 2005), p. 184Google Scholar.

⁴ Hart, The Concept of Law, 2nd edn., ed. Penelope A. Bulloch and Joseph Raz (Oxford, 1994), pp. 57, 140, 255.

⁵ Hart, Concept, pp. 94–9.

⁶ Hart, Concept, p. 255.

⁷ See Dworkin, ‘Model’.

⁸ See Dworkin, ‘Model’; Dworkin, Law's Empire; Raz, Practical Reason; Postema, ‘Coordination and Convention’; Coleman, ‘Negative and Positive Positivism’, Journal of Legal Studies 11 (1982).

⁹ Hart, Concept, p. 256.

¹⁰ The only real exception I am aware of is a long endnote on pp. 292–3 (new pagination) of The Concept of Law.

¹¹ Hart, Concept, pp. 114–16, 203. Although some of the reasons that Hart discusses as those based on which people may accept laws seem to be motivating reasons, his point still stands even if we restrict his claim to cover only justifying reasons.

¹² In reaching the conclusion that the postscript indicates a change of mind on Hart's part about the nature of rules of recognition, I received a boost of confidence from Dickson, Julie, ‘Is the Rule of Recognition Really a Conventional Rule?’, Oxford Journal of Legal Studies 27 (2007)CrossRefGoogle Scholar.

¹³ Waldron, ‘Law’, p. 184.

¹⁴ Conventionalism, as I understand it here, is a view about the nature of people's normative commitments to laws. It is not a view about what ultimately justifies such commitments, as it is in many legal philosophers’ usage. See e.g. Dworkin, Law's Empire, ch. 4.

¹⁵ See e.g. Dworkin, ‘Model’; Law's Empire, chs. 1 and 4; ‘Hart's Posthumous Reply’ (unpublished manuscript); ‘Thirty Years On’, Harvard Law Review 115 (2002). I have benefited from Waldron's discussion in his ‘Law’ of Dworkin's criticism of Hart's legal theory.

¹⁶ This assumption has been a very important motivating consideration in the views of both Dworkin and Raz, and many who have followed them. For a necessary corrective, see Waluchow, W. J., Inclusive Legal Positivism (Oxford, 1994), p. 122Google Scholar. See more generally, Railton, Peter, ‘Facts and Values’, Philosophical Topics 14 (1986)CrossRefGoogle Scholar, and Railton, ‘What the Non-Cognitivist Helps Us to See the Naturalist Must Help Us to Explain’, Reality, Representation and Projection, ed. John Haldane and Crispin Wright (Oxford, 1993).

¹⁷ See e.g. Waluchow, Inclusive Legal Positivism, ch. 5; Coleman and Leiter, ‘Legal Positivism’, p. 243; Coleman, Practice, p. 107.

¹⁸ Hart, ‘Legal Duty and Obligation’ and ‘Commands and Authoritative Reasons’ in Essays on Bentham.

¹⁹ See e.g. Coleman, Practice, lectures 7–8, 11; Andrei Marmor, ‘Constitutive Conventions’, Positive Law and Objective Values (Oxford, 2001).

²⁰ Marmor, ‘Constitutive Conventions’, p. 21.

²¹ Marmor analogizes rules of recognition to the conventional rules of games and of artistic genres, and has said that such rules tend to be constantly interpreted and reinterpreted. The question is how any attempts at or advocacies of reinterpretation can be conceived as convention-bound in the way that Marmor is inclined to picture them. I doubt that John Cage cared whether others thought that there is a genuine distinction between music and everyday noise. I doubt that Ornette Coleman gave a fig that others considered chord changes essential to jazz improvisation. Such revolutionaries in fact act very much like Marmor's imaginary German judge. For what seems to me a more successful conception of what is involved in advocacies of artistic and other reinterpretations, see W. B. Gallie, ‘Essentially Contested Concepts’, Proceedings of the Aristotelian Society, n.s. 56 (1955–6), and ‘Art as an Essentially Contested Concept’, The Philosophical Quarterly 6 (1956). Incidentally, Dworkin's conception of legal interpretation is very much based on Gallie's thinking on ‘essentially contested concepts’. See Dworkin, ‘Hard Cases’, Taking Rights Seriously, p. 103 n. 1.

²² In this paragraph and the next, I will be repeating some things I say in ‘Hart's Expressivism and his Benthamite Project’, Legal Theory 11 (2005), pp. 115–16.

²³ Hart, Concept, pp. 230, 236–7.

²⁴ Cf. Bratman, Michael, ‘Reflection, Planning, and Temporally Extended Agency’, The Philosophical Review 109 (2000), pp. 57–8CrossRefGoogle Scholar.

²⁵ See e.g. Dworkin, ‘Political Judges and the Rule of Law’, A Matter of Principle (Cambridge, 1985); Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, Law and Philosophy 21 (2002).

²⁶ One possible reason for thinking that what I say here is controversial is the thought that a commitment to a norm of the sort I have described in legal contexts necessarily brings with it commitments to other norms that together amount to a very considerable constraint on contents of rules that can constitute a legal system. That is similar to a position famously adopted by Lon Fuller, and one that some commentators have attributed to Aquinas. See Fuller, The Morality of Law (New Haven, 1965); Finnis, John, Aquinas (Oxford, 1998), ch. 3Google Scholar; MacIntyre, Alasdair, ‘Aquinas and the Extent of Moral Disagreement’, Ethics and Politics (Cambridge, 2006)CrossRefGoogle Scholar. Similarly, some Kantian moral philosophers like John Rawls and T. M. Scanlon have argued that a commitment to a norm that requires justifiability to (or non-rejectability by) others of the grounds of one's moral positions considerably narrows down the range of moral theories that we can endorse. See Rawls, Political Liberalism (New York, 1993), lecture 3; Rawls, Justice as Fairness: A Briefer Restatement (Cambridge, 2001), pt. 3; Scanlon, ‘Contractualism and Utilitarianism’, Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge, 1982). But in the case of Fuller and Aquinas, the details of the derivations are left quite unspecified. And for the Kantian philosophers I have named, as they themselves recognize, much more than a commitment to the norm of acceptability (or justifiability) of the sort that I have described needs to be deployed to yield the normative conclusions that they favor. At least so far, no compelling argument has been offered to show that a commitment to a norm of joint acceptability of the sort that I have described necessarily commits one to a set of quite significant constraints on the contents of rules that constitute a legal system, and we are entitled to assume that a commitment to such a norm is not incompatible with commitments to legal systems of widely varying moral qualities, including patently immoral ones. See Hart, Concept, pp. 206–7.

²⁷ This assumption of realizability distinguishes many conative attitudes, including commitments to ideals, from mere wishes. Cf. Velleman, J. David, ‘The Guise of the Good’, Noûs 26 (1992), pp. 16–17CrossRefGoogle Scholar; Guyer, Paul, ‘From a Practical Point of View: Kant's Conception of a Postulate of Pure Practical Reason’, Kant on Freedom, Law, and Happiness (Cambridge, 2000), p. 347 n. 11CrossRefGoogle Scholar.

²⁸ In outlining my view in this paragraph, I have borrowed from the discussion of division of labor and deference by semantic externalists. See e.g. Putnam, Hilary, ‘The Meaning of “Meaning” ’, Mind, Language and Reality (Cambridge, 1975), pp. 227–9CrossRefGoogle Scholar. The counterfactual condition I discuss is adapted from Railton, Peter, ‘Alienation, Consequentialism, and the Demands of Morality’, Philosophy and Public Affairs 13 (1984)Google Scholar.

²⁹ Rawls, Political Liberalism, pp. 56–7.

³⁰ This is how expressivists and non-natural factualists conceive normative reasoning and judgments. A point analogous to the one in the text actually applies to many factualists of the naturalist bent as well. For many of them think that the facts that are described by normative judgments are very complicated sets of facts that supervene on simpler ones.

³¹ Rawls, ‘Introduction to the Paperback Edition’, Political Liberalism, 2nd edn. (New York, 1996); Rawls, ‘The Idea of Public Reason Revisited’, University of Chicago Law Review 64 (1997); cf. Dreben, Burton, ‘On Rawls and Political Liberalism’, The Cambridge Companion to Rawls, ed. Freeman, Samuel (Cambridge, 2003), pp. 320–1Google Scholar.

³² Such an expectation would be especially well founded if, as inclusive or soft legal positivists believe possible, rules of recognition were to contain moral standards.

³³ Bratman, ‘Autonomy and Hierarchy’, Autonomy, ed. Ellen Frankel Paul et al. (Cambridge, 2003), p. 158.

³⁴ Bratman, ‘Autonomy and Hierarchy’, p. 160.

³⁵ For a more detailed version of my proposal, see Toh, ‘Legal Judgments as Plural Acceptances of Norms’, Oxford Studies in the Philosophy of Law, vol. 1, ed. Leslie Green and Brian Leiter (Oxford, forthcoming). My conception of a person's commitment to laws closely resembles Rawls's conception of a rational and reasonable citizen's adherence to a liberal conception of justice. And that is no accident since I follow Rawls in taking the fact of reasonable pluralism seriously, and seeing a need to adjust our picture of the relevant normative commitments in light of that fact. It is notable that at least one very sympathetic Rawls commentator has said that what is involved in being reasonable and rational as a citizen of a modern liberal democratic society, as Rawls conceives such citizens, can be learned by observing how the best appellate judges work. See Dreben, ‘On Rawls’, p. 339. The best appellate judges already operate by deploying what I am calling plural acceptances of rules.

³⁶ I begin to do so in Toh, ‘Legal Judgments’.

³⁷ For instructive comments, I thank an anonymous referee for this journal and the participants of the Rutgers Institute of Law and Philosophy Conference on the Idea of Law as a Practice, held in June 2008.